Morris Davis v. James Billington

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2011 Decided June 1, 2012

No. 11-5092

MORRIS D. DAVIS,
APPELLEE

v.

JAMES H. BILLINGTON, IN HIS OFFICIAL CAPACITY AS THE
LIBRARIAN OF CONGRESS,
APPELLEE

DANIEL P. MULHOLLAN, IN HIS INDIVIDUAL CAPACITY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00036)

Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellant. With her on the briefs were Tony
West, Assistant Attorney General, Ronald C. Machen Jr., U.S.
Attorney, and Thomas M. Bondy, Attorney.

Aden J. Fine argued the cause for appellee. With him on
the brief were Alexander A. Abdo, Arthur B. Spitzer, and
Frederick V. Mulhauser.
 2

Louis Fisher and Morton Rosenberg, appearing pro se, were
on the brief as amici curiae Dr. Louis Fisher and Morton
Rosenberg in support of appellee.

Before: SENTELLE, Chief Judge, HENDERSON and ROGERS,
Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Chief Judge: Appellee, a former employee of
the Library of Congress, brought this action against, inter alia,
his former supervisor, Daniel Mulhollan, alleging that his
termination for publication of articles critical of high-level
public officials violated the First and Fifth Amendments of the
Constitution and entitled him to damages relief under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Appellant Mulhollan moved to dismiss,
arguing that a Bivens action is not available under the
circumstances of this case and that he is entitled to qualified
immunity. The district court denied the motion to dismiss, and
Mulhollan filed the current appeal. Because we conclude that
the courts should not imply a new form of Bivens action on the
facts of this case, we reverse the order of the district court
denying dismissal.

I. Background

Upon review of a district court’s ruling on a motion to
dismiss, we, like the district court, accept as true the well-
pleaded factual allegations of the complaint. Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).
Therefore, the following recitation of facts implies no decision
on our part as to the accuracy of the allegations. In December
 3

2008, the Congressional Research Service (CRS), the public-
policy-research arm of Congress and a department of the Library
of Congress, hired appellee Davis as Assistant Director of its
Foreign Affairs, Defense, and Trade Division subject to a
mandatory, one-year probationary period. That division
provides research and analytical services to congressional
committees responsible for foreign affairs; international trade
and finance; defense policy and arms control; and defense
budget, manpower, and management. As Assistant Director,
Davis was responsible for leading, planning, directing, and
evaluating the research and analytical activities of the division.

During his tenure as Assistant Director, Davis publicly
criticized the system of military commissions created to
prosecute suspected terrorists held at Guantanamo Bay Naval
Base, Cuba, a system with which he had become familiar while
serving as Chief Prosecutor there until October 2007. While
employed by CRS, Davis voiced his criticisms of the system at
a Human Rights Watch dinner, in a BBC documentary, at a
conference at Case Western Reserve University Law School,
and in a law review article in connection with the conference.
He also spoke about his views at a Lawyers Association of
Kansas City meeting after accepting an award for speaking out
against what he characterized as the politicization of the
military-commissions system.

On November 11, 2009, as Davis’s probationary year
neared its end, he published opinion pieces in both the Wall
Street Journal and the Washington Post criticizing Attorney
General Eric Holder and the Obama administration for choosing
to prosecute some Guantanamo detainees in federal courts and
others in military commissions. Davis called this decision “a
mistake” and “double-standard justice” that “we would condemn
if … applied to us.” The Post piece challenged the contention
of former Attorney General Michael Mukasey that “the decision
 4

to try Guantanamo detainees in federal courts comes down to a
choice between protecting the American people and showcasing
American justice.” Davis wrote that Mukasey’s statement,
which expressed concern for the security of people where
detainees would be tried, was “fear-mongering worthy of former
vice president Dick Cheney.” Neither editorial included a
disclaimer that it represented Davis’s personal views and not
those of CRS or the Library of Congress.

The evening before the publication of the two opinion
pieces, Davis e-mailed appellant Mulhollan, the Director of
CRS, and informed him of the impending publication of the two
opinion pieces. Mulhollan responded by e-mail, questioning
Davis’s judgment and his ability to continue serving as Assistant
Director. After the pieces were published, Mulhollan told Davis
that the opinion pieces damaged Davis’s ability to lead his
division in providing objective, nonpartisan analysis. He also
asked how members of Congress could trust Davis’s leadership
on military-commissions issues given his public opposition to
current policy; how Republicans would view his objectivity after
his attack on Dick Cheney; and how Davis could properly
counsel employees who failed to comply with the CRS outside-
speech policy, which Mulhollan believed Davis had violated.
On November 20, 2009, Mulhollan notified Davis that he would
be removed from his probationary appointment as Assistant
Director. Mulhollan provided Davis with a thirty-day
appointment as Mulhollan’s special advisor to provide time to
look for other employment, after which time Davis was
separated from CRS.

Davis then filed the current action against appellant, as well
as James Billington, the Librarian of Congress, seeking
declaratory and injunctive relief, and seeking damages against
Mulhollan for violation of his constitutional rights under the
First and Fifth Amendments, asking the court to imply a remedy
 5

under Bivens. Mulhollan moved to dismiss, both on the basis of
qualified immunity and on the theory that the court should not
imply a Bivens remedy for the discharge of a civil-service
employee. Because we agree that there is no available Bivens
remedy, we will not reach the question of qualified immunity
but will reverse the district court’s denial of the motion to
dismiss.

II. Analysis

We have jurisdiction under 28 U.S.C. § 1291 and the
collateral order doctrine. It is a well-established application of
that doctrine that “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Because the
defense of qualified immunity from a Bivens damages action
“directly implicate[s]” the antecedent question whether to
recognize that Bivens action at all, our jurisdiction extends to
that question as well. See Wilkie v. Robbins, 551 U.S. 537, 549
& n.4 (2007) (internal quotation marks omitted). We review the
district court’s legal conclusions de novo. Wilson v. Libby, 535
F.3d 697, 704 (D.C. Cir. 2008).

A.

In Bivens, the Supreme Court determined that under
appropriate circumstances the federal courts possess the
discretion to create remedial actions against federal officials for
violations of constitutional rights, even though Congress has not
expressly authorized those specific remedies by statute. See
Bush v. Lucas, 462 U.S. 367, 373–74 (1983). Beginning with
Bivens, the Supreme Court has drawn upon this power in three
instances to create a nonstatutory action for money damages
 6

against federal officials for constitutional violations. See
Bivens, 403 U.S. 388 (Fourth Amendment violation by federal
agents); Davis v. Passman, 442 U.S. 228 (1979) (employment
discrimination in violation of the Due Process Clause); Carlson
v. Green, 446 U.S. 14 (1980) (Eighth Amendment violations by
prison officials).

For the most part, though, the Court has “responded
cautiously” to requests for new “Bivens” remedies. Schweiker
v. Chilicky, 487 U.S. 412, 421 (1988). The decision whether to
recognize a new damages remedy is not about ensuring that
every violation of a constitutional right is vindicated. Rather,
the Bivens inquiry is a “judgment about the best way to
implement a constitutional guarantee.” Robbins, 551 U.S. at
550. As the Supreme Court has made clear, in most instances
the judgment has been that Congress, not the judicial branch, is
in the best position to prescribe the scope of relief available for
the violation of a constitutional right. The Supreme Court has
applied this analysis in a context paralleling the facts before us.
Specifically, the Court in Robbins stated: “We have accordingly
held against applying the Bivens model to claims of First
Amendment violations by federal employers . . . .” 551 U.S. at
562 (citing Bush, 462 U.S. 367); see also Chappell v. Wallace,
462 U.S. 296 (1983); United States v. Stanley, 483 U.S. 669
(1987); Chilicky, 487 U.S. 412. In explaining its reluctance to
create new causes of action for federal employees alleging
violation of their constitutional rights, the Supreme Court
recognized that “Congress is in a far better position than a court
to evaluate the impact of a new species of litigation between
federal employees on the efficiency of the civil service.” Bush,
462 U.S. at 389. The Court further explained that Congress has
“developed considerable familiarity with balancing
governmental efficiency and the rights of employees,” and that
“it also may inform itself through factfinding procedures such as
hearings that are not available to the courts.” Id.
 7

In keeping with the Supreme Court’s recognition of
Congress’s primary role, we have held that the courts will not
imply a Bivens remedy where Congress has adopted a
“comprehensive remedial scheme.” Wilson, 535 F.3d at 705. In
Wilson, we followed the approach established by the Supreme
Court in Bush v. Lucas, a case in which a NASA rocket scientist
sought damages for First Amendment violations based on an
alleged retaliatory demotion. The Court held that the statutory
scheme governing federal civil-service employees—“an
elaborate remedial system that has been constructed step by step,
with careful attention to conflicting policy
considerations”—qualified as a special factor that precluded
creation of a Bivens remedy for violations of a federal
employee’s First Amendment rights. Bush, 462 U.S. at 388–89.
Although the existing scheme did not afford complete relief to
the plaintiff, the scope of relief Congress chose to implement in
that system reflected a congressional policy judgment “informed
by a thorough understanding of the existing regulatory structure
and the respective costs and benefits that would result from the
addition of another remedy” to the civil-service system. Id. at
388. Recognizing that “Congress is in a far better position than
a court” to make that policy judgment, the Court “decline[d] to
create a new substantive legal liability without legislative aid
and as at the common law.” Id. at 389–90 (internal quotation
marks and citations omitted). In declining to fashion a new
Bivens remedy, the Court in Bush explained that the relevant
question about a comprehensive remedial scheme for purposes
of special-factors analysis—whether the scheme represents an
informed congressional judgment about what relief should be
available—“cannot be answered simply by noting that existing
remedies do not provide complete relief for the plaintiff.” Id. at
388.
 8

The Court again dealt with the topic of a comprehensive
scheme constituting a special factor in a Bivens analysis in
Schweiker v. Chilicky. In Chilicky, the Court made it even
clearer that whether the scheme affords a plaintiff relief for his
specific injuries is not determinative of this inquiry. The
plaintiffs in Chilicky sought money damages against state and
federal officials for violations of their due process rights that
resulted in the termination of the plaintiffs’ Social Security
disability benefits. The Social Security Act provided no
separate remedy for unconstitutional conduct that leads to the
wrongful denial of benefits. Yet the Court declined to create a
Bivens remedy to relieve these unredressed injuries, discerning
no relevant distinction between the civil-service system in Bush
and the Social Security Act’s remedial scheme. Chilicky, 487
U.S. at 424–25. Indeed, “The absence of statutory relief for a
constitutional violation . . . does not by any means necessarily
imply that courts should award money damages against the
officers responsible for the violation.” Id. at 421–22. To the
contrary, so long as “the design of a Government program
suggests that Congress has provided what it considers adequate
remedial mechanisms for constitutional violations that may
occur in the course of its administration,” the Court would not
add a Bivens remedy to the mix. Id. at 423. Again, deference to
the informed judgment of Congress was the key: “Congress is
the body charged with making the inevitable compromises
required in the design of a massive and complex welfare benefits
program,” and it fulfilled that charge. Id. at 429. Congress’s
choice to leave the remedy sought by the plaintiffs out of that
complex program was not a legal basis for judicially revising
Congress’s considered policy judgment. Id.

In Wilson, as we had earlier done in Spagnola v. Mathis,
859 F.2d 223 (D.C. Cir. 1988), we applied the Supreme Court’s
precedents from Chilicky and Bush. Although in both Wilson
and Spagnola the comprehensive remedial scheme did not
 9

provide the relief the plaintiff was seeking, “it is the
comprehensiveness of the statutory scheme involved, not the
‘adequacy’ of specific remedies extended thereunder, that
counsels judicial abstention.” Spagnola, 859 F.2d at 227. At
bottom, then, “courts must withhold their power to fashion
damages remedies when Congress has put in place 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.” Id. at 228. The presence of these
indicia of an informed congressional judgment is sufficient to
stay the judiciary’s hand in favor of Congress’s decision.
Because the CSRA met these requirements, the Spagnola Court
held that “the creation of a Bivens remedy for civil service
employees and applicants who advance constitutional challenges
to federal personnel actions,” id. at 230, was foreclosed, even
though the remedies available to the plaintiffs were “not so
complete,” id. at 226.

Wilson v. Libby explicitly rejected the notion that a
comprehensive scheme must include some remedy for the
plaintiff before the scheme can constitute a special factor that
precludes creation of a Bivens remedy. A CIA employee,
Valerie Plame Wilson, and her husband, Joseph Wilson, brought
a Bivens action against then-Vice President Cheney, his Chief of
Staff, and the President’s Deputy Chief of Staff based on alleged
improper disclosure of information by those individuals. The
disclosure blew Mrs. Wilson’s cover as a CIA operative. The
Wilsons alleged a violation of Mr. Wilson’s free speech rights
based on retaliatory disclosure of the information; violations of
both his and Mrs. Wilson’s equal protection rights; a violation
of her right to privacy based on the public disclosure of her
personal information; and a violation of her Fifth Amendment
property rights based on the disclosure’s effective elimination of
her position through destruction of its secrecy.
 10

None of these claims were cognizable under the Privacy
Act. Mrs. Wilson’s claims were barred by the Privacy Act’s
exemption of the Offices of the President and Vice
President—which included the three defendants—from its
coverage. The Act provided Mr. Wilson with no relief at all;
only the person whose records are actually disclosed may bring
a claim under the Privacy Act. Still, we declined to create a
Bivens remedy for these alleged constitutional violations. We
first pointed out that the Wilsons’ contention that they had no
possibility of relief was inaccurate because Mrs. Wilson had a
possible claim against the Deputy Secretary of State. Even if
they were correct that the Act provided at least Mr. Wilson with
no relief whatsoever, they were incorrect to “focus on the
necessity of a remedy at all.” Wilson, 535 F.3d at 709. We
reiterated that “[t]he special factors analysis does not turn on
whether the statute provides a remedy to the particular plaintiff
for the particular claim he or she wishes to pursue.” Id. Instead,
the correct inquiry continues to be the one put forth in Bush:
“the question of who should decide whether such a remedy
should be provided.” Id. (citing Bush, 462 U.S. at 380 (internal
quotation marks omitted)). Deference to Congress to make that
decision is “especially due” when it “intentionally withheld” a
remedy, which shows “the considered judgment of Congress
that certain remedies are not warranted.” Id. That deference is
owed “whether Congress has chosen to exclude a remedy for
particular claims, as in Bush and Chilicky, or from particular
defendants,” as was the case in Wilson. Id.

B.

1.

The primary question before us in this case then is whether
the CSRA is a “comprehensive remedial scheme,” i.e., a scheme
 11

that reflects a considered congressional judgment about which
remedies should be available for claims that fall within its ambit.
It qualifies as such “when Congress has put in place 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.” Spagnola, 859 F.2d at 228. That
being established, we give “appropriate judicial deference” to
Congress’s judgment on the matter, treating the comprehensive
scheme as a special factor that precludes the creation of a Bivens
remedy. Chilicky, 487 U.S. at 423.

No one contests that the CSRA is a “comprehensive system
to administer public rights.” Davis admits this much, and
indeed, that conclusion was necessary to this court’s holding in
Spagnola that the CSRA was a special factor precluding the
creation of a Bivens remedy for the plaintiffs in that case. See
Spagnola, 859 F.2d at 228; see also Bush, 462 U.S. at 385–86.
Nor has Congress provided any suggestion, much less a “plainly
expressed” intent, that Bivens remedies should be preserved for
claimants in Davis’s shoes.

Further, Congress’s choice to omit damages remedies for
claimants in Davis’s posture was a deliberate one—or as we
have put it before, Congress has “not inadvertently” omitted
these damages remedies. A review of the CSRA’s remedial
scheme as it relates to Davis and most other civil-service
members not employed by an agency under the executive branch
for purposes of the CSRA makes it clear that their general
excision from the remedial protections available through that
scheme was in fact conscious and “not inadvertent.”

The CSRA defines the “civil service” as “all appointive
positions” in all three branches of government. 5 U.S.C. § 2101.
The civil service is then divided into three categories: the Senior
 12

Executive Service, the competitive service, and the excepted
service. The Senior Executive Service includes certain high-
level executive positions. See id. § 3132(a)(2). The competitive
service, generally speaking, includes “all civil service positions
in the executive branch,” excluding positions that require Senate
confirmation and those Congress specifically excludes by
statute. Id. § 2102. It also includes positions in certain named
categories if Congress specifically includes any particular
positions in those categories by statute. Id. Finally, the
excepted service contains the remainder of the civil-service
positions—those positions not in the competitive service or the
Senior Executive Service. Id. § 2103.

Congress plainly included employees in Davis’s former
position in the “civil service” as defined by the CSRA. Davis
was an appointed employee with CRS, part of the Library of
Congress. The Library of Congress is not in the executive
branch for purposes of § 2102, nor are Library of Congress
employees specifically included in the competitive service by
statute. Therefore, within the CSRA’s definitional structure,
Davis was a member of the excepted service.

Congress deliberately included Library of Congress
employees in the “civil service” governed by the CSRA. Then,
just as deliberately, Congress chose to limit the beneficiaries of
the CSRA’s remedial protections in large part to non-
probationary employees in the executive branch. Specifically,
three chapters of the CSRA govern personnel actions taken
against civil-service employees and the remedies available to
those employees. With only inconsequential exceptions, none
of them provide procedural rights or remedial measures for
civil-service employees of non-Executive agencies, which
include the Library of Congress. Moreover, the primary set of
protections against arbitrary adverse employment actions,
contained in Chapter 75, is not available to employees who are
 13

on probationary status. This leaves Davis, an employee of the
Library of Congress on probationary status, without recourse
under the CSRA for adverse actions taken against him.

In each of the three CSRA chapters governing personnel
actions, the unambiguous language Congress used to delineate
which civil-service employees would be eligible for the remedial
protections provided demonstrates that the exclusion of
probationary and CRS employees was deliberate. First, under
Chapter 43, Congress provided procedural protections and rights
of appeal in the context of performance reviews to “employees,”
which are defined in Chapter 43 as individuals “employed in or
under an ‘agency.’” Id. § 4301(2). “Agency” is in turn defined
in Chapter 43 as “an Executive agency” and the Government
Printing Office (GPO), excluding certain entities not pertinent
here. Id. § 4301(1). These definitions reflect an intentional
choice to leave civil-service members not employed by the
statutorily referenced Executive agencies—including employees
of CRS, see id. § 7103(a)(3) (listing the Library of Congress
separately from “Executive agency”)—ineligible for these
remedial protections.

Chapter 75 of the CSRA, which governs adverse actions
taken against civil-service employees for the “efficiency of the
service,” excises probationary and non-Executive agency
employees from its procedural protections in similar fashion.
The protections available to civil-service members for minor
adverse actions (suspensions shorter than 14 days) are limited to
“employees,” which are defined as individuals in the
competitive service not on probationary status. Id. § 7501(1).
The protections against major adverse actions (removal, longer
suspensions, pay or grade reduction, or furlough) are also
limited to “employees,” which are defined more broadly under
that subsection as (A) members of the competitive service not on
probationary status; (B) preference-eligible members of the
 14

excepted service who have served at least a year in an Executive
agency (or in the Postal Service or the Postal Regulatory
Commission); or (C) non-preference-eligible, non-probationary
members of the excepted service who have served two years or
more in an Executive agency. See id. § 7511(a)(1). These
carefully crafted definitions set up clear demarcations between
the categories of civil-service members eligible and ineligible
for the CSRA’s main body of procedural protections against
adverse employment actions, and the ineligible group includes
excepted-service employees of non-Executive agencies and
probationary employees.

Chapter 23, which establishes the principles of the merit
system of civil-service employment, forbids an agency from
engaging in certain “prohibited personnel practices,” id.
§§ 2301–02. Each section is limited almost exclusively to
employees of Executive agencies using an approach nearly
identical to that used in Chapter 43. The section listing the basic
principles of the merit system applies to “an Executive agency”
and the Government Printing Office. Id. § 2301. The section
listing the specific prohibited personnel actions defines
“personnel action” as an action “with respect to an employee in,
or applicant for, a covered position in an ‘agency,’” which is
again defined as an Executive agency and the Government
Printing Office (excluding government corporations, intelligence
agencies, and the Government Accountability Office). Id.
§ 2302.

The careful categorization of the subsets of civil-service
employees eligible for each part of the CSRA’s remedial scheme
speaks for itself—Congress’s decisions about which civil-
service members would be eligible for these protections were
not made inadvertently. Our discussion of the same inquiry in
Wilson reflects this. There, we held that Congress was aware
that the definition of “agency” it chose would exclude the
 15

Offices of the President and Vice President from the Privacy
Act’s disclosure requirements (leaving the Wilsons without
claims against the three defendants, who were employed with
those offices). That awareness was sufficient to deem the
omission “intentional” and “not inadvertent.” Wilson, 535 F.3d
at 708. Here, the unambiguous use of the narrowing term
“Executive agency”—a term which plainly does not contain the
Library of Congress within the meaning of the statute, see 5
U.S.C. § 7103(a)(3)—and the express exclusion of probationary
employees from the “agencies” and types of “employees”
subject to the CSRA’s remedial protections evidences an explicit
congressional design for the subsets of civil-service employees
that would and would not have access to those protections. We
are satisfied that Congress omitted the subset of employees that
includes Davis from the remedial protections of the CSRA every
bit as intentionally as it omitted the Offices of the President and
Vice President from Privacy Act requirements in Wilson. And
as we wrote in Wilson, “it is where Congress has intentionally
withheld a remedy that we must most refrain from providing one
because it is in those situations that ‘appropriate judicial
deference’ is especially due to the considered judgment of
Congress that certain remedies are not warranted.” Wilson, 535
F.3d at 709 (citing Chilicky, 487 U.S. at 423).

In short, all indications suggest Congress has made an
informed judgment about which remedies should be available to
particular classes of civil-service employees. The CSRA is a
comprehensive system to administer public rights; Congress
consciously, “not inadvertently” omitted remedies for civil-
service members employed in or under the Library of Congress;
and nothing suggests Congress intended that courts preserve
Bivens remedies for such claimants. These indications are
sufficient to require our deference to Congress as “the body
charged with making the inevitable compromises required in the
design of a massive and complex . . . program.” Chilicky, 487
 16

U.S. at 429.

2.

Davis’s argument to the contrary rests on the idea that in no
other case has the Supreme Court or this court refused to
recognize a Bivens remedy for a plaintiff based on the existence
of a remedial scheme that provides no relief whatsoever for the
alleged constitutional violations. This is incorrect. To begin
with, the Chilicky plaintiffs sought a Bivens remedy against state
and federal officials for “emotional distress and for loss of food,
shelter and other necessities proximately caused by [the
officers’] denial of [disability] benefits without due process.”
487 U.S. at 419 (internal quotation marks omitted). The Act
“makes no provision for remedies in money damages against
officials responsible for unconstitutional conduct that leads to
the wrongful denial of benefits.” Id. at 424. Even so, the
Supreme Court rejected the Bivens request because the Social
Security Act provided a multi-step process for review of
disability claims.

Wilson is even more to the point. The Privacy Act provided
no relief for the claims of either Mr. or Mrs. Wilson against the
three officers they sued for disclosing the fact of Mrs. Wilson’s
CIA employment. The Act only offered a “possible claim” by
Mrs. Wilson against a defendant not named in the lawsuit.
Wilson, 535 F.3d at 709. Mr. Wilson had no cognizable claim
under the Privacy Act against anyone because the only
information disclosed by the defendants was his wife’s, meaning
only she could bring a claim under the Act. Yet this court
refrained from providing a Bivens remedy even to him because
“the special factors analysis does not turn on whether the statute
provides a remedy to the particular plaintiff for the particular
claim he or she wishes to pursue.” Id. Simply put, this will not
be the first time we have rejected a Bivens request in light of a
 17

comprehensive statutory scheme that fails to provide for redress
of a plaintiff’s constitutional claims.

These precedents control the current case. The district court
pointed to the CSRA’s lack of any review for Davis’s alleged
constitutional violations as dispositive evidence that the CSRA
cannot be considered a “comprehensive” remedial system. But
Chilicky, Spagnola, and particularly Wilson are to the contrary.
“[C]ase-specific analysis . . . of the particular statutory remedies
available to a claimant” is not required; instead, we look to
whether the design of a statutory scheme evinces an informed
congressional judgment that the remedies provided by the
scheme are adequate. Spagnola, 859 F.2d at 227–28. If it does,
the scheme’s failure to provide a remedy to a “particular
plaintiff for the particular claim he or she wishes to pursue” does
not make the scheme any less “comprehensive” for purposes of
determining whether it is a special factor that precludes the
creation of a Bivens remedy. See, e.g., Wilson, 535 F.3d at 709.
The Wilson plaintiffs made a nearly identical argument, see id.
at 707. It was as unavailing then as it is now. The Privacy Act’s
failure to provide complete relief to the Wilsons did not
“undermine its status as a ‘comprehensive scheme’ that stops us
from providing additional remedies under Bivens.” Id. Just so,
the CSRA’s lack of relief for Davis does not prevent it from
being a “comprehensive remedial scheme” that precludes us
from creating a Bivens remedy.

Davis contends that his complete lack of available remedies
under the CSRA matters for a slightly different reason. He
argues that Congress’s omission of any remedies for Library of
Congress employees under the CSRA, while deliberate, does not
demonstrate a considered judgment about which remedies
should be available to those employees; rather, it shows that
those employees are not “included in” or “covered by” the
concededly comprehensive remedial system at all. This would
 18

mean he could still bring a Bivens action, he concludes, because
a comprehensive remedial system cannot serve as a special
factor barring creation of a Bivens remedy for employees who
are not “covered” by that system.

This is not a novel theory. It has been framed before as the
question “whether a particular claimant—and his underlying
claim—should be included in a given congressional
‘comprehensive system’ for purposes of applying ‘special
factors’ analysis.” Spagnola, 859 F.2d at 229. For instance,
“while in some cases the outer boundaries for inclusion in
‘comprehensive systems’ may be less than clear,” there was
“little doubt” that Congress had brought First Amendment
claims like those advanced by the Spagnola plaintiffs “within
CSRA’s ambit . . . because the CSRA itself, in one fashion or
another, affirmatively speaks to [claims like those] by
condemning the underlying actions as ‘prohibited personnel
practices.’” Id. This case is not materially different. Moreover,
while the CSRA’s remedial scheme does not provide Davis with
procedural protections (due to his status as a probationary
employee of a non-Executive agency), it does provide
procedural protections and rights of appeal for the specific
underlying actions he challenges. See 5 U.S.C. §§ 4301–03
(providing certain protections to employees of “Executive
agencies” removed for unacceptable performance, including
advance written notice, a written decision, and the right to
appeal to the Merit Systems Protection Board); id. §§ 7512–13
(providing similar procedural protections and rights of appeal to
employees against whom major adverse employment action is
proposed). Both by definition and in substance, then, the CSRA
accounts for civil-service members in Davis’s status. Congress
may have then chosen to make the CSRA’s remedial protections
for adverse employment actions unavailable to the subset of
civil-service members of which Davis is a part, but he has
provided us with no good reason to think that this choice is a
 19

signal to create a new Bivens remedy for that class of employees
and not simply a considered congressional judgment that these
remedies for these employees are not warranted.

Indeed, the only evidence Davis uses to suggest he is not
“included” in the CSRA’s comprehensive remedial scheme is
the lack of relief available to him under that scheme. As we
have explained above, and as the precedents make clear, this is
certainly not a sufficient reason to place a claimant and his
claims outside the ambit of a comprehensive remedial scheme
for purposes of special-factors analysis. See, e.g., Wilson, supra.
In sum, the CSRA includes a comprehensive remedial scheme
evincing a “considered judgment of Congress that certain
remedies are not warranted,” Wilson, 535 F.3d at 709, including
the damages remedy Davis seeks for alleged constitutional
violations. As we must give “appropriate judicial deference” to
that judgment, id., we decline to create a Bivens remedy and
thereby contravene Congress’s choice.1

Conclusion

Because we hold that Davis has failed to state a Bivens
claim for which relief may be granted, there is no reason to
reach the merits of his claims or to consider whether Director
Mulhollan is entitled to qualified immunity. We vacate the
order of the district court denying Mulhollan’s motion to dismiss
and remand with instructions to dismiss Davis’s Bivens claims.

1
Davis can and has filed a claim for injunctive relief for the
alleged constitutional violations. We express no view on the validity
of that claim. See, e.g., Spagnola, 859 F.2d at 229–30.
 ROGERS, Circuit Judge, dissenting: From the unremarkable
fact that Congress was aware that it was not including
employees of the Legislative Branch in the remedial provisions
of the Civil Service Reform Act of 1978 (“CSRA”), Pub. L. No.
95-454, 92 Stat. 1111 (codified as amended in scattered sections
of 5 U.S.C.), the court concludes that “Congress consciously,
‘not inadvertently’ omitted remedies” for Library of Congress
employees, and thus the CSRA precludes a Bivens1 remedy for
Col. Morris D. Davis. Op. at 15. The premise of the court’s
holding is that when Congress enacts a remedial scheme for a
specific group of claimants, it is making a conscious decision
not to enact a remedial scheme for other claimants, regardless of
how far beyond the intended scope of the enacted scheme those
other claimants are, and even in the absence of any evidence
demonstrating Congress chose to exclude them because it did
not want them to have a remedy at all. There is no limiting
principle to this theory, and in adopting it, the court allows the
“special factor” exception to swallow the rule. The Supreme
Court has not gone so far, see Minneci v. Pollard, 132 S. Ct. 617
(2012); nor should we.

The court ignores the real question in this case – why did
Congress exclude Legislative Branch employees? The answer,
found in the unambiguous legislative history of the CSRA and
the Congressional Accountability Act of 1995, Pub. L. No. 104-
1, 109 Stat 3 (codified at 2 U.S.C. §§ 1301–1438), is that
Congress, based on separation of powers principles, did not want
the Executive Branch to have the power to adjudicate claims of
Legislative Branch employees – a motivation that says nothing
about what Congress intended with respect to Legislative
Branch employee Bivens claims. Indeed, the legislative history
of the Congressional Accountability Act demonstrates that

1
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).
 2

Congress expressly concluded that judicial adjudication posed
none of the same separation of powers concerns. Because
Congress did not “intentionally withhold a remedy,” Wilson v.
Libby, 535 F.3d 697, 709 (D.C. Cir. 2008), from Library of
Congress employees by enacting the CSRA, and neither it nor
the Congressional Accountability Act constitutes special factors
counseling hesitation in recognizing a Bivens action, I would
affirm the district court’s ruling that Davis stated a valid Bivens
claim. Accordingly, I respectfully dissent.

I.

In Bivens, the plaintiff alleged that federal officials
conducted an unlawful search and seizure in violation of the
Fourth Amendment to the Constitution, and the Supreme Court
held that the federal officials could be sued for violating his
constitutional rights, reasoning that “[h]istorically, damages
have been regarded as the ordinary remedy for an invasion of
personal interests in liberty.” 403 U.S. at 395. To determine
whether a complaint states a valid Bivens claim, the Court has
instructed that the first question is “whether any alternative,
existing process for protecting the [constitutionally recognized]
interest amounts to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in
damages.” Minneci, 132 S. Ct. at 621 (quoting Wilkie v.
Robbins, 551 U.S. 537, 550 (2007)) (alteration in original).
Absent an alternative remedy, the question is whether “any
special factors counsel[] hesitation before authorizing a new
kind of federal litigation.” Id. (quoting Wilkie, 551 U.S. at 550).

One such special factor is where Congress, although not
explicitly foreclosing a damages action, has provided “recourse
to ‘an elaborate, comprehensive scheme,’” Wilkie, 551 U.S. at
575 (quoting Bush v. Lucas, 462 U.S. 367, 385 (1983)), such
that recognition of a Bivens action would “interfere with
 3

Congress’ carefully calibrated system.” Id. This is the question
presented by the complaint, which alleges that the Librarian and
Davis’s supervisor violated his First and Fifth Amendment
rights under the Constitution when he was fired from his
position as Assistant Director of the Foreign Affairs, Defense,
and Trade Division, in the Congressional Research Service
(“CRS”) at the Library of Congress after an article and letter to
the editor criticizing the Obama and Bush Administrations’
handling of Guantanamo detainee trials were each published in
a newspaper.

A.
The court views the fact that Library of Congress
employees are excluded from the CSRA’s remedial scheme for
personnel actions, see 5 U.S.C. §§ 2301(a), 4301(1), &
7511(a)(1)(B)(i), as evidence that Congress intentionally
withheld a remedy from them, and thus the CSRA constitutes a
“special factor” precluding a Bivens action for Davis. Op. at
11–15. Although the exclusion of Library employees is
dispositive in this case, it demands the opposite result.
Contrary to the court’s conclusion, see Op. at 12, the Congress
that enacted the CSRA did not “define” the scope of the civil
service and then limit remedies to Executive Branch employees
in one deliberative, fell-swoop. Instead, more than a decade
before enacting the CSRA, Congress enacted the “Definitions”
section of Title 5, Chapter 21 of the U.S. Code “to establish a
basis of reference” “for convenience” when referring to federal
employees. S. REP. NO. 89-1380, at 46–47 (1966); H.R. REP.
NO. 89-901, at 26–27 (1966).2 No evidence suggests that

2
The court concludes that “Congress deliberately included
Library of Congress employees in the ‘civil service’ . . . [t]hen, just as
deliberately, Congress chose to limit” the remedial provisions to the
Executive Branch, see id. at 12. But these definitions were enacted in
1966, twelve years prior to the enactment of the CSRA. See Act of
 4

Congress intended anything about what remedies should be
available to Library employees when it enacted the CSRA; it
was addressing the altogether different question of how to
provide a fair system for adjudicating remedial claims within the
Executive Branch civil service. That Library employees are in
the “excepted service” as a matter of vernacular convenience
adds nothing to the analysis. Congress did not view itself as
legislating on what remedies should be available to Library

Sept. 6, 1966, Pub. L. 89-554, §§ 2101–2103; 80 Stat. 378, 408 (1966)
(enacting Title 5, United States Code, entitled “Government
Organization and Employees”). The legislative history of the 1966
Act indicates that Congress defined the “civil service” to “consist of
all appointive positions in the executive, judicial, and legislative
branches,” 5 U.S.C. § 2101(1) (1966), in order “to establish a basis of
reference to employees in this title.” S. REP. NO. 89-1380, at 46; H.R.
REP. NO. 89-901, at 26. Section 2102 of the 1966 Act, 5 U.S.C.
§ 2102, defined the “competitive service,” with some exceptions not
relevant here, as “all civil service positions in the executive branch.”
This was done simply to reorganize and centralize the Code’s
definition based on two prior statutes, the Act of Jan. 16, 1883, ch. 27
§ 7, 22 Stat. 406 (1883), and the Act of Nov. 26, 1940, ch. 919, title
I, 54 Stat. 1211 (1940). See S. REP. NO. 89-1380, at 46; H.R. REP. NO.
89-901, at 26. Finally, section 2103 of the 1966 Act, 5 U.S.C. § 2103
(1966), provided that “[f]or purposes of this title, the ‘excepted
service’ consists of those civil service positions which are not in the
competitive service.” Both the House and Senate Reports of the 1966
Act stated that section 2103 “is supplied for convenience. The
‘excepted service’ has come to mean all employees not in the
competitive service, for whatever reason.” S. REP. NO. 89-1380, at 47;
H.R. REP. NO. 89-901, at 27. The only modification the CSRA made
to the definitions in 5 U.S.C. §§ 2101–2103 was to add provisions
regarding the Senior Executive Service, which are not at issue here.
See CSRA § 401 (codified at 5 U.S.C. §§ 2101a, 2102(a)(1), &
2103(a)).
 5

employees when it enacted the CSRA and it is thus irrelevant to
the “special factors” analysis.

Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002), illustrates
this point. In Stewart, a federal employee filed a Bivens action
against her employer for an alleged unlawful search in violation
of the Fourth Amendment. Id. at 1129. This court reasoned that
the CSRA did not preclude the Bivens action because “a
warrantless search is not a ‘personnel action[] . . . covered by
this system’ and [thus] such a search does not fall ‘within the
statutory scheme.’” Id. at 1130 (quoting Bush v. Lucas, 462 U.S.
367, 385 n.28 (1983)). The court noted that “Bush virtually
compels the conclusion that the [CSRA] does not preclude a
Bivens action for a warrantless search.” Id. Stewart thus stands
for the proposition that where a claim is outside the scope of a
remedial scheme, such that Congress did not envision itself as
legislating on the subject of that claim, the remedial scheme
does not preclude a Bivens action based on that claim.

This principle applies with equal force here, where Davis is
a claimant who is outside the scope of the remedial scheme,
such that Congress did not envision itself as legislating about the
remedies available to that claimant. “The [CSRA] is not
concerned with the conduct of which [he] claims,” id., that is,
violation of constitutional rights of a Legislative Branch
employee. Stewart reflects the appropriate limiting principle to
the proposition that “a comprehensive statutory scheme
precludes a Bivens remedy even when the scheme provides the
plaintiff with no remedy whatsoever.” Wilson v. Libby, 535 F.3d
697, 709 (D.C. Cir. 2008) (internal quotation marks and citations
omitted). A specific claimant or a specific claim must be
“within the statutory scheme,” Bush v. Lucas, 462 U.S. 367, 385
n.28 (1983), such that Congress withheld a remedy for the
conscious purpose of denying one, in order for the scheme to
preclude a Bivens action for that claimant or claim.
 6

The Supreme Court’s precedent holding that a
comprehensive remedial statutory scheme precludes a Bivens
action reflects this limiting principle. For example, in Bush,
462 U.S. at 386, the Executive Branch federal employee’s
claims were “fully cognizable” by the Civil Service
Commission’s “elaborate, comprehensive scheme.” In
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988), the Social
Security disability beneficiaries and their claims were within the
“considerably more elaborate,” id. at 424, remedial scheme
enacted by Congress, even though it did not provide “complete
relief,” id. (internal quotation marks and citation omitted).
Similarly, in Correctional Servs. Corp. v. Malesko, 534 U.S. 61,
71–73 (2001), the prisoner’s claims were covered by
“alternative remedies [] at least as great, and in many respects
greater, than anything that could be had under Bivens.” The
Court’s most recent discussion of Bivens in Minneci, 132 S. Ct.
at 626, adheres to this approach, holding that a federal prisoner
in a private correctional facility had no Eighth Amendment
Bivens claim where the alleged “conduct is of a kind that
typically falls within the scope of traditional state tort law.”

Until recently, this court has followed suit. For example, in
Spagnola v. Mathis, 859 F.2d 223, 225 n.3 (D.C. Cir. 1988), the
en banc court concluded that the constitutional claims of the
Executive Branch employees were covered by the CSRA, and
thus they were within the scope of the remedial scheme. In
Wilson, 535 F.3d at 707, the court stated that “each
Constitutional claim, whether pled in terms of privacy, property,
due process, or the First Amendment, is a claim alleging
damages from the improper disclosure of information covered
by the Privacy Act.” Id. But see id. at 713 (Rogers, J.,
dissenting). On the basis of unambiguous legislative history, the
court concluded that Congress intentionally excluded the
President, Vice-President, and their staffs as possible defendants
for Privacy Act claims. Id. at 708. I dissented from the court’s
 7

holding in Wilson, and continue to disagree with its analysis.
Yet in Wilson the court at least sought to determine, through
legislative history, whether Congress acted with the purpose of
withholding a remedy for claims against such defendants
premised on the release of information covered by the Privacy
Act. See id. In all of these cases, the alternative remedies or the
remedial scheme at issue covered either the claimants or their
claims, such that they were “within the statutory scheme,”
Stewart, 275 F.3d at 1130 (internal quotation marks and citation
omitted), or the court concluded that legislative history
demonstrated Congress excluded claims or claimants for the
purpose of withholding all remedies, and thus a Bivens remedy
could be precluded.

The court today acknowledges that this limiting principle
“is not a novel theory,” Op. at 18, but its response misses the
point of the principle altogether. The court reasons that Davis’s
claim would be covered by the CSRA, but as a claimant he is
not, and thus he is not outside the “outer boundary” of the
CSRA’s scope. See Op. at 18–19. Whenever the limiting
principle is implicated, either a claim (but not the claimant) or
a claimant (but not the claim) will be covered by the remedial
scheme; otherwise there would be no need to consider whether
the “outer boundary,” Spagnola, 859 F.2d at 229, of the
remedial scheme has been breached. The difficulties arise
precisely where one, but not both, is included. Under the court’s
logic, Stewart’s limiting principle would not have applied in
Stewart itself, where a federal employee (the claimant) was
covered by the CSRA, but her Fourth Amendment claim,
premised on work-site actions, was not. The court’s analysis
restates the obvious fact Davis is not an Executive Branch
employee, and from that somehow concludes that there was “a
considered congressional judgment that [] remedies for [non-
Executive Branch employees] are not warranted.” Op. at 18–19.
The analysis of whether the limiting principle should apply,
 8

however, depends on why Congress excluded either the claimant
or the claim. If it acted with the purpose of preventing a remedy
altogether, then the Stewart limiting principle is inapplicable. If
it did so for reasons unrelated to a desire to remove all remedies,
then Stewart applies.

The court does not bother to pose, let alone answer, this
question, ignoring that both Wilson and Spagnola consulted the
legislative history of the remedial scheme to ascertain the “outer
boundaries for inclusion in ‘comprehensive systems,’”
Spagnola, 859 F.2d at 229. In Wilson, the court’s determination
that the Privacy Act, 5 U.S.C. § 552a, was a “special factor”
precluding a Bivens action for both Wilsons’ claims against the
President, the Vice-President, and their staff was based on what
the Supreme Court viewed as “‘unambiguous’ legislative
history” that “Congress did not inadvertently omit the Offices of
the President and Vice President from the Privacy Act’s
disclosure requirements.” Wilson, 535 F.3d at 708 (quoting
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 156 (1980)). In Spagnola, a case involving whether
the CSRA precluded a Bivens action for constitutional claims of
Executive Branch employees, the en banc court “f[ou]nd
nothing in the legislative history suggesting that Congress’
omission of a damages remedy in the CSRA was anything but
advertent,” 859 F.2d at 229, “nor . . . discern[ed] any clear
expression of congressional intent that the courts preserve
Bivens remedies,” id. The court noted that “[t]he most that can
be said for the legislative history of the CSRA is that Congress
did not expressly intend to eliminate damages remedies” for
Executive Branch employees, observing the “‘explicit
congressional declaration’ exception to allowing damages
remedies . . . has little relevance to the ‘special factors’
exception after Chilicky.” Id. at 229 n.10 (emphasis in original).
 9

The question here is not whether Congress’s omission of a
damages remedy in the CSRA was advertent, but whether
Congress’s omission of Library of Congress employees from
coverage under the CSRA demonstrates a conscious choice that
such employees not have a Bivens remedy, or instead whether
such employees are simply outside the scope of the question
Congress was addressing in enacting the CSRA, making the
CSRA irrelevant to the Bivens analysis, as it was in Stewart. See
275 F.3d at 1130. The legislative history of the CSRA
demonstrates the latter. In adopting the CSRA, Congress
focused on reforming the “civil service system” of the
“executive branch.” H.R. REP. NO. 95-1403, at 3 (1978),
reprinted in House Comm. on Post Office and Civil Service,
96th Cong., 1st Sess., Legislative History of the Civil Service
Reform Act of 1978, at 640 (Comm. Print 1979). The CSRA
thus included “general policies of the merit system principles
applicable to the competitive civil service and throughout the
executive branch,” id. at 4, providing guidance for “all
Executive agencies to follow,” id. Congress’s plain intent was
to reform the employment practices of the Executive Branch.

The legislative history of the CSRA confirms that
Legislative Branch employees were excluded from the CSRA’s
remedial provisions not because Congress wished to express its
intent that they have no remedies available, but instead because
of separation of powers concerns. During the conference
committee mark-up session, the House and Senate Members
agreed that the Library of Congress, the Government
Accountability Office (also in the Legislative Branch), and the
Administrative Office of the Courts (in the Judicial Branch),
would not be required to seek allotments of “supergrade”
positions from the Office of Personnel Management in the
Executive Branch. These offices would “retain the supergrade
allocations that they have on the theory that they are not in the
Executive Branch and that the President or the personnel
 10

manager for the President should not have the power to shift
those supergrades around. The [C]ongress ought to retain that
power.” The Civil Service Reform Act of 1978: Joint
Conference of the Senate Committee on Governmental Affairs
and the House Committee on Post Office and Civil Service, 96th
Cong. 22 (Sept. 26, 1978), reprinted in HOUSE-SENATE
CONFERENCE MARKUP SESSION ON CIVIL SERVICE REFORM ACT
OF 1978, Senate Comm. on Gov’t Affairs and House Comm. on
Post Office and Civil Service (1978) (statement of Rep. Udall).
As one Senate Conferee put it, “we feel so strongly about the
separation of powers principle.” Id. (statement of Sen. Percy).

Although Congress was aware it was not extending the
CSRA’s remedial scheme, which is administered by the
Executive Branch, to Library employees, see Op. at 11–15, this
conclusion is only half the analysis. The reason for the
exclusion reflected in the legislative history — the protection of
the separation of powers — demonstrates that Congress did not
view itself as legislating on the subject of what remedies should
be available to Library employees, and in excluding Library
employees from CSRA coverage did not “intentionally
withh[o]ld a remedy,” Wilson, 535 F.3d at 709. The Stewart
limiting principle therefore applies in Davis’s case.

B.
Likewise, the Congressional Accountability Act does not
preclude a Bivens action in this case.3 Most of its provisions do

3
The Congressional Accountability Act, guided by the
principle that “Congress should be subject to the same laws as apply
to a business back in a home state,” S. REP. NO. 103-397, at 6, applied,
among other laws, “8 key anti-discrimination and employee-protection
laws to the Congress”: Title VII of the Civil Rights Act of 1964; The
Age Discrimination in Employment Act of 1967; The Rehabilitation
Act of 1973; The Americans with Disabilities Act of 1990; The
 11

not apply to the Library of Congress, because “the Library of
Congress[4] [was] already covered by antidiscrimination and
employee protection laws.” S. REP. NO. 103-397, at 2 (1994);
2 U.S.C. § 1302.5 The House Floor debate indicates that its
purpose was to make Congress abide by the same anti-
discrimination laws that apply to the private sector, see, e.g., 114

Family and Medical Leave Act of 1993; The Fair Labor Standards Act
of 1938; The Occupational Safety and Health Act of 1970; and the
Federal Service Labor-Management Relations Statute. Id. at 6; see 2
U.S.C. § 1371(b).
4
The universal definition of “covered employee” in the
Accountability Act does not extend to the Library of Congress, 2
U.S.C. § 1301(3), but various provisions afford Library employees
protections under other federal laws. See id. § 1314(a)(2) (Employee
Polygraph Protection Act of 1988); § 1315(a)(2) (Worker Adjustment
and Retraining Notification Act); § 1316(a)(2)(B) (Veterans’
Employment and Reemployment); § 1341(a)(2)(D) (Occupational
Safety and Health Act of 1970).
5
Prior to enactment of the Accountability Act, Library
employees “enjoy[ed] most of the rights and protection of the
antidiscrimination laws, including the right to brings actions in U.S.
district court,” id. at 4, although “enforcement mechanisms []
differ[ed]” from those applicable to Executive Branch employees.
Specifically, Congress had previously extended coverage to Library
employees of: Title VII of the Civil Rights Act of 1964 (as amended
in 1972), see 42 U.S.C. § 2000e-16(b), the Age Discrimination Act of
1967 (as amended in 1978), see 29 U.S.C. § 633a(a), and the
Americans with Disabilities Act of 1990 (“ADA”), see 42 U.S.C.
§ 12209. Consistent with Congress’s concern for separation of
powers, for Title VII and Age Discrimination Act claims, the Librarian
had the powers normally given the Equal Employment Opportunity
Commission. See 42 U.S.C. § 2000e-16(b); 29 U.S.C. § 633a(b). The
Librarian was also authorized to establish remedies and procedures for
claims under the ADA. See 42 U.S.C. § 12209(2).
 12

Cong. Rec. 264-65 (statement of Rep. Goodling, chairman of the
House Committee on Economic and Educational Opportunities),
and that there was no consideration or rejection of a remedial
scheme to address constitutional claims of Library employees –
claims that do not exist against private employers. The Senate
deliberations of the Congressional Accountability Act
demonstrate Congress’s consistent concern with protecting
separation of powers in managing Legislative Branch
employment affairs, supporting the conclusion that both the
Accountability Act and the CSRA are irrelevant to the question
before the court.

To authorize executive branch agencies to enforce
antidiscrimination and employment laws against
Congress would create a dangerous entanglement
between these two branches of government. The
legislative branch must be free from executive branch
intimidation, real or perceived . . . . To maintain the
necessary separation of powers, the Committee [on
Governmental Affairs] determined that it is essential to
maintain independence from the executive branch.

S. REP. NO. 103-397, at 6 (1994).6 “On the other hand,” in
extending judicial review to congressional employee claims,

6
S. Rep. No. 103-397 accompanied a predecessor bill, H.R.
4822 in the 103d Congress. In introducing S. 2, the bill that ultimately
was enacted, see Congressional Accountability Act of 1995, Pub. L.
No. 104-1, 109 Stat. 3, 104th Cong., 1st Sess. (1995), the Chairman
of the Senate Governmental Affairs Committee, before which the bill
was pending, noted that S. 2 did not come to the Senate Floor
following the normal committee referral process and “refer[red]
Members to [] committee report No. 103-397” for legislative history
of the previous bill because S. 2 was “a modified version of H.R.
4822.” 141 Cong. Rec. 684 (1995) (statement of Sen. Roth).
 13

separation-of-powers concerns that make executive-
branch enforcement unacceptable are not applicable to
[federal] district court actions. Courts and judges do
not have the complex interactions with Congress that
executive agencies have, so the risk of intimidation
would not arise.

Id. at 8.7

A Bivens action cannot sensibly be precluded where
Congress has expressed no view whatsoever on what remedies
should be available for First Amendment violations and where,
in extending remedies for other claims, it has expressed its
desire that the judiciary resolve claims. See 2 U.S.C. §§ 1404,
1407–09. Although Congress restricted some employment
claims from judicial review, it only did so for claims arising
under the Accountability Act, which Davis’s First Amendment

7
Some House Members would have allowed personal
liability suits against Members of Congress for violations of the laws
covered by the Accountability Act. See 141 Cong. Rec. at 536,
(statements of Rep. Goodling & Rep. Fawell). Instead, Congress
provided that appropriations may be used as the sole source from
which to pay awards or settlements of claims under the Accountability
Act, see 2 U.S.C. § 1415(a), precluding personal liability by Members
of Congress, see also 141 Cong. Rec. at 536 (“Members of Congress
[shall be] indemnified for any damages, costs, or legal fees to which
a prevailing party may be found entitled.”) (statement of Rep. Fawell).
This approach is consistent with the practical result of Bivens actions,
where the United States often indemnifies its employees sued pursuant
to Bivens. Cf. FDIC v. Meyer, 510 U.S. 471, 486 (1994) (noting that
government expends a good deal of money indemnifying employees);
Cleavinger v. Saxner, 474 U.S. 193, 208 (1985) (“[A]ny expense of
litigation is largely alleviated by the fact that a Government official
who finds himself as a defendant in litigation of this kind is often
represented, as in this case, by Government counsel.”).
 14

claim does not.8 Furthermore, Congress’s inclusion of a
provision in the Congressional Accountability Act calling for a
study to determine if the rights, protections, and procedures for
Library employees were “comprehensive and effective,” 2
U.S.C. § 1371(c), supports the conclusion that Congress had
not, in either it or the CSRA, indicated what remedies it thought
should be available to Library employees for alleged violations
of their First Amendment rights. The Congressional
Accountability Act, therefore, is not a special factor precluding
a Bivens action by Davis.

C.
Davis’s Bivens action also is not precluded by the fact that
he was a probationary employee when he was fired. See
Appellant’s Br. at 58 (citing Library of Cong. Reg. 2020-3.1,
§ 3(1)(1)); Compl. ¶ 55. The Library can point to no reason his
probationary status should be a “special factor” precluding a
Bivens action. The Library’s internal regulations and policies

8
2 U.S.C. § 1410 provides that “[e]xcept as expressly
authorized by sections 1407, 1408, and 1409 of this title, the
compliance or noncompliance with the provisions of this chapter and
any action taken pursuant to this chapter shall not be subject to judicial
review.” For example, congressional employees must complete
counseling and mediation before seeking judicial remedies. 2 U.S.C.
§ 1408. Section 1410 was included to prevent the “circumvention of
th[e] Act by such methods as implied statutory, common law, or
Constitutional causes of action in either the Judicial or Executive
Branch.” H.R. REP. NO. 103-650 (II), at Part II, section 17 (1994).
Because constitutional claims for alleged First Amendment violations
are not included as a “provision[] of this chapter,” 2 U.S.C. § 1410,
Davis’s Bivens action is not precluded by this section. Cf. Ethnic
Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1415
(D.C. Cir. 1985) (holding that Congress did not intend Title VII to
preclude suits “for constitutional violations [of the First Amendment]
against which Title VII provides no protection at all”).
 15

are not part of the record, nor publically available, and its
regulation on providing assistance without partisan bias and
policy on outside activities, which are part of the record, do not
constitute a “comprehensive scheme” that would preclude a
Bivens action; neither the Supreme Court nor this court has held
the availability of injunctive relief, see Op. at 19 n.1, is such a
“comprehensive scheme,” see, e.g., Farmer v. Brennan, 511
U.S. 825, 831, 845–47 (1994). Even assuming the brevity of
Davis’s eleven months’ employment at the Library would affect
the amount of damages he could recover for a constitutional
violation, it does not qualify as a “special factor” suggesting he
does not have a remedy.9 And assuming Library regulations
provide for termination of probationary employment for many
reasons, Supreme Court precedent is clear that the exercise of
free speech rights may not be among those reasons.10

9
Contrary to the court’s suggestion, see Op. at 12–13, in the
CSRA Congress provided that probationary Executive Branch
employees would have review, through investigation by the Office of
Special Counsel, of alleged constitutional violations. See Castle v.
Rubin, 78 F.3d 654, 658 (D.C. Cir. 1996); 5 U.S.C. §§ 1214(a)(1)(A)
& (a)(3); 2302(b)(12) & § 2301(b)(2). This provides further evidence
that Congress has not indicated that constitutional violations of
probationary employees’ rights should be without remedy.
10
The Supreme Court instructed:

[E]ven though a person has no “right” to a valuable
governmental benefit and even though the government may
deny him the benefit for any number of reasons, there are
some reasons upon which the government may not rely. It
may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests – especially, his interest in
freedom of speech. For if the government could deny a
benefit to a person because of his constitutionally protected
speech or associations, his exercise of those freedoms would
 16

D.
The court observes that “in most instances the judgment has
been that Congress, not the judicial branch, is in the best
position to prescribe the scope of relief available for the
violation of a constitutional right.” Op. at 6. In this instance,
however, Congress (acting through the Library) is the defendant
alleged to have violated its employee’s constitutional rights. In
Davis v. Passman, 442 U.S. 228 (1979), a female congressional
staffer whose employment was terminated because of her
gender, had no statutory cause of action because Congress had
exempted itself from Title VII, id. at 247. With three exceptions
relevant to the Library, see supra n.5, only upon enactment of
the Accountability Act did Congress extend application to itself
of some employment laws, and then only those applicable to the
private sector, necessarily excluding First Amendment
constitutional claims. In the sixteen years since Congress
received the mandated study11 of whether the rights, protections,
and procedures for Library employees were “comprehensive and
effective,” 2 U.S.C. § 1371(c), Davis’s supervisor (Daniel P.
Mulhollan) does not suggest Congress has addressed how
constitutional claims of Library employees should be resolved.

in effect be penalized and inhibited. This would allow the
government to “produce a result which [it] could not
command directly.”

Perry v. Sinderman, 408 U.S. 593, 597 (1972) (quoting Speiser v.
Randall, 357 U.S. 513, 526 (1958) (alteration in original)); see also
Rankin v. McPherson, 483 U.S. 378, 383–84 (1987); Keyishian v. Bd.
of Regents, 385 U.S. 589, 605–06 (1967).

11
See Study of Laws, Regulations, and Procedures at The
General Accounting Office, The Government Printing Office, and The
Library of Congress, at 121–22 (Dec. 31, 1996), available at
http://www.compliance.gov/reports-studies/sec230/sec230_12-96.pdf.
 17

The Supreme Court has long acknowledged the Judicial
Branch’s competence to review congressional employment
decisions:

[J]udicial review of congressional employment
decisions is constitutionally limited only by the Speech
or Debate Clause of the Constitution . . . . [W]e
conclude that if respondent is not shielded by the
Clause, the question whether his dismissal of petitioner
violated her Fifth Amendment rights would . . . require
no more than an interpretation of the Constitution.
Such a determination falls within the traditional role
accorded courts to interpret the law, and does not
involve a lack of respect due a coordinate branch of
government, nor does it involve an initial policy
determination of a kind clearly for non-judicial
discretion.

Davis, 442 U.S. at 235 n.11 (internal quotations, citations, and
alterations omitted); see S. REP. NO. 103-397, at 7–8.

Other special factors do not counsel against recognizing
Davis’s Bivens action. Wilkie, 551 U.S. at 537, is instructive.
There, the plaintiff alleged various private property and tort-like
invasions by federal employees, which the Court characterized
as “death by a thousand cuts.” Id. at 555. The Court explained
that he “ha[d] an administrative, and ultimately a judicial,
process for vindicating virtually all of his complaints,” id. at
553, which created “no intuitively meritorious case for
recognizing a new constitutional cause of action, but neither . . .
plainly answer[ed] no to the question whether [the plaintiff]
should have it,” id. at 554. Upon weighing the reasons for and
against recognizing a right (the Bivens step two question), the
Court concluded in view of “the serious difficulty of devising
a workable cause of action,” where “[a] judicial standard to
 18

identify illegitimate pressure going beyond legitimate hard
bargaining would be endlessly knotty to work out,” that any
damages remedy against the Executive Branch employees “who
push too hard for the Government’s benefit” against a private
property owner’s rights would “come better, if at all, through
legislation.” Id. at 562. No such difficulty exists here, for
Davis’s claim rests on a claimed violation of his liberty interests
that are protected under the First and Fifth Amendments. See
infra Part II.A.

In fact, in Wilkie the Court contrasted the facts of that case
with that of “an employee who spoke out on matters of public
concern and then was fired,” id. at 556, where “the outcome
turns on ‘what for’ questions: what was the Government’s
purpose in firing him and would he have been fired anyway?
Questions like these have definite answers, and we have
established methods for identifying the presence of an illicit
reason,” id. These are the questions posed by Davis’s Bivens
claim. Furthermore, that the Supreme Court indicated a federal
employee suing for termination in violation of the First
Amendment would be a candidate for a Bivens action
underscores the court today has gone too far, effectively holding
that the CSRA precludes all federal employee Bivens actions for
termination of employment in violation of the First Amendment.
Yet the only way to give meaning to the Supreme Court’s
statement in Wilkie, given that the Court has held such claims by
Executive Branch employees are precluded, see Bush, 462 U.S.
at 386, is to conclude that the Court, just five years ago, implied
that Bivens actions would not be so precluded for employees of
the other branches, not covered by the CSRA. Although the
Supreme Court has recognized Bivens actions in only a few
instances, see Op. at 5, this likely reflects the proliferation of
comprehensive remedial statutory schemes, not a conclusion that
there should be no Bivens action in the absence of such a scheme
covering the claimant. See id. at 576 (quoting Carlson v. Green,
 19

446 U.S. 14, 18 (1980) (Ginsburg, J., concurring and dissenting
in part). But see Minneci, 132 S. Ct. at 626 (Scalia, J., joined by
Thomas, J., concurring). Courts must

presume that justiciable constitutional rights are to be
enforced through the courts. And, unless such rights
are to become merely precatory, the class of those
litigants who allege that their own constitutional rights
have been violated, and who at the same time have no
effective means other than the judiciary to enforce
these rights, must be able to invoke the existing
jurisdiction of the courts for the protection of their
justiciable constitutional rights.

Passman, 442 U.S. at 242.

For these reasons, “the court’s decision is not the product of
the application of the Bivens doctrine to [Davis’s] claims,” but
instead a “refusal to acknowledge precedent [holding] that
Bivens is a remedial doctrine,” Wilson, 535 F.3d at 722 (Rogers,
J., dissenting), and here that Congress has said nothing about
what remedies should be available to Library employees for the
alleged constitutional violations. With today’s decision, the
court goes beyond Wilson, where it “cede[d] to Congress the
judiciary’s defined role to decide issues arising under the
Constitution,” id., and now abandons the judiciary’s role even
where all evidence regarding purpose demonstrates that
Congress did not envision itself as legislating on the question
now before the court. Contrary to the precedent of the Supreme
Court and this court, the court turns the Bivens doctrine on its
head to require some “special factor” in favor of recognizing a
Bivens claim. Whatever “deference to the informed judgment of
Congress,” Op. at 8, is appropriate with respect to Executive
Branch remedial schemes, see Bush, 462 U.S. at 389, where
Congress is alleged to violate employee rights, Congress itself
 20

recognized that Judicial Branch review does not pose the same
separation of powers concerns as does Executive Branch review,
see S. REP. NO. 103-397, at 7–8, a sufficient special factor
favoring recognizing a Bivens remedy.

II.

In moving to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6), Daniel Mulhollan, who was
Davis’s supervisor at the CRS and fired him, asserted the
defense of immunity. On appeal, he maintains that he is entitled
to qualified immunity in part because the potential harm to the
CRS from Davis’s two opinion pieces “was clear from the
complaint and the documents incorporated by reference,” and he
“did not need to develop an evidentiary record.” Appellants’
Reply Br. at 18. Taking Mulhollan at his word, his immunity
defense would fail, but a remand for fact finding is required.

A.
The “necessary antecedent” question to deciding the
immunity question is the sufficiency of the complaint’s
allegations to survive a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). See Navab-Safavi v.
Glassman, 637 F.3d 311, 315 (D.C. Cir. 2011). Upon de novo
review of a denial of a motion to dismiss, and accepting, as the
court must, the factual allegations in the complaint as true,
Daniels v. Union Pac. R.R. Co., 530 F.3d 936, 940 (D.C. Cir.
2008), Davis’s complaint manifestly “contain[s] sufficient
factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

1. Based on the analysis in Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968), this court has developed a four-part test
for determining whether an employee’s First Amendment rights
 21

have been violated. See O’Donnell v. Barry, 148 F.3d 1126,
1133 (D.C. Cir. 1998).12 Mulhollan wisely limits his challenge
to the second factor, maintaining that Davis compromised his
appearance of objectivity and harmed their working relationship,
but that too fails.

The Supreme Court has observed that a “stronger showing
[of governmental harm] may be necessary if the employee’s
speech more substantially involved matters of public concern.”
Connick v. Myers, 461 U.S. 138, 152 (1983). That case involved
a workplace questionnaire of little public interest. Id. at 151–52.
Speech about government policies, on the other hand, is a
“paradigmatic matter of public concern.” Sanjour v. EPA, 56
F.3d 85, 91 (D.C. Cir. 1995) (internal quotation marks, citation,
and alteration omitted). To establish governmental harm where
a high level policy maker is involved “[a]t a minimum, the
employee’s speech must relate to policy areas for which he is
responsible.” Hall v. Ford, 856 F.2d 255, 264 (D.C. Cir. 1988).
Further, the “simple assertion by [The Library and Mullhollan]
without supporting evidence of the adverse effect of the speech
on” CRS’s function is inadequate. Navab-Safavi, 637 F.3d at
318 (internal quotation marks and citation omitted).

12
The four factors are: (1) whether the employee’s speech
was “on a matter of public concern”; (2) “whether the governmental
interest in” non-disrupted, efficient public services “outweighs the
employee’s interest, as a citizen, in commenting upon matters of
public concern, and the interest of potential audiences in hearing what
the employee has to say”; (3) whether the employee’s “speech was a
substantial or motivating factor in prompting the retaliatory or
punitive act of which she complains”; and (4) whether the employer
“would have reached the same decision even in the absence of the
protected conduct.” O’Donnell, 148 F.3d at 1133 (internal quotation
marks and citations omitted).
 22

In Pickering, 391 U.S. at 569–70, the court concluded that
there was no threat to harmony between the employee, co-
workers, and the supervisor where “[t]he statements [were] in no
way directed towards any person with whom [the employee]
would normally be in contact.” The Court emphasized that the
public had a strong interest in being exposed to the viewpoints
of teachers on issues of school funding: “Teachers are, as a
class, the members of a community most likely to [be] informed
. . . . [I]t is essential that they be able to speak out freely on such
questions without fear of retaliatory dismissal.” Id. at 572.
Davis’s two opinion pieces, relying on his professional
experience prior to his employment with CRS, were not directed
at Mulhollan, the Library, the CRS, or any member of Congress.
Compl. ¶¶ 47, 50. In each he was identified as a former chief
prosecutor for military commissions at Guantanamo; as such
Davis was likely one of the more informed persons who could
speak publically on the issue. The public interest in being
exposed to his speech is high.

Moreover, Mulhollan concedes that at CRS Davis had no
authority over military commission issues. Rather, he maintains
that because the same congressional committees oversee both
defense issues within Davis’s purview and military
commissions, the issues are related enough. But even if Davis
can properly be viewed as a “policymaker,” which he disputes,
the court in Hall was clear that the relation to the policymaker’s
work area is a “minimum” requirement to show government
harm. Davis’s complaint states that Members of Congress were
aware that the American Law Division, and not his division, was
responsible for issues relating to military commissions, see
Compl. ¶ 32. Davis’s name has not appeared on any reports to
Congress about military commissions, and no congressional
inquiries have been directed to him on that subject. Id. ¶ 29. Cf.
Rankin, 483 U.S. at 390–91 (whether employee serves in “public
contact role” relevant to government harm inquiry).
 23

Furthermore, “the fact that [Davis’s] criticism was
cumulative . . . diminish[es] the harm it caused.” O’Donnell,
148 F.3d at 1138. Not only had Davis spoken publically on
military commissions with the CRS’s knowledge and was never
questioned about those activities, Compl. ¶¶ 33-40, unlike the
employee in O’Donnell, his criticism was not aimed at his
employer or the Congress. The Library encourages outside
speech by its employees, id. ¶¶ 65, 68–69; see Library of
Congress Regulation 2023-3, section 3 (Mar. 23, 1998); CRS
Policy on Outside Speaking and Writing (Jan. 23, 2004),
minimizing any potential government harm. Former CRS
employees at the Library of Congress have recounted, without
contradiction, the tradition of the independent expert analysts at
CRS speaking publically on controversial issues of concern to
Congress. See Br. of Amici Curiae Dr. Louis Fisher and Mr.
Morton Rosenberg, at 15–17. Davis included no disclaimer in
the two published pieces, see LCR 2023-3, section 3(B), but
neither did he purport to speak, based on his pre-Library
employment experience, for anyone other than himself, and the
newspapers identified him only as the former chief prosecutor
for military commissions who had retired from the military in
2008.

Although Mulhollan claims, pointing to his letter of
admonishment to Davis, that his relationship with Davis became
strained as a result of Davis’s published article and letter, that
“simple assertion . . . without supporting evidence of the adverse
effect of the speech on [the CRS’s functions]” is inadequate.
Navab-Safavi, 637 F.3d at 318 (internal quotation marks and
citation omitted). Otherwise, as Davis suggests, there would be
nothing to stop employers from pretextually claiming harm in
order to shield themselves from liability. The district court
concluded the instances to which Mulhollan pointed, which he
initiated, were examples of everyday employer/employee
interactions. Mulhollan’s more plausible suggestion might be
 24

that the two opinion pieces damaged the non-partisan reputation
of the CRS. But Davis’s article and letter to the editor do not
take a partisan position, instead criticizing decisions and
officials in both Democrat and Republican administrations. His
situation is in that respect unlike the CRS analyst in Keeffe v.
Library of Congress, 777 F.2d 1573, 1576 (D.C. Cir. 1985), who
attended a partisan political convention, and such a partisan
label cannot be ascribed to Davis’s speech.
2. Davis’s complaint also states a plausible claim under the
Due Process Clause of the Fifth Amendment. The Library’s
policies and actions must provide Davis a “reasonable
opportunity to know what is prohibited.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). This requires that “the
Library . . . give loud and clear advance notice when it . . .
decide[s] to interpret a particular regulation as a prohibition or
limitation on an employee’s outside activity.” Keeffe, 777 F.2d
at 1583.

In Keeffe, the CRS analyst was disciplined for attending a
partisan political convention under a Library regulation
regarding the potential conflict of interest posed by employees
engaging in political activities. Id. at 1576. Although the court
upheld the regulation (LCR 2023-7, “Unrestricted Political
Activities of Library Employees”) as facially valid and not
impermissibly vague, id. at 1579–81, the court found that, as
applied to Keeffe, the Library violated her due process rights, id.
at 1582. She had previously attended a 1974 partisan
convention without Library complaint; between 1972 and July
1980 the Library had denied no requests by an employee for
clearance to engage in a political activity, id.; the Library did not
inform Keeffe that it had denied her request until after she had
left for the 1980 partisan convention, id. at 1576. “In light of
this background, the Library’s course of dealing with her in the
summer of 1980 was insufficient to place Keefe on notice that
 25

the prior interpretation [of the regulation] had changed.” Id. at
1582.

So too here. The Library’s Policy encourages outside
speaking by its employees; Mulhollan had previously approved
Davis’s requests to speak and write on the topic of military
commissions, see Compl. ¶¶ 33–38; Davis had made public
statements in the past similar to those published in the two
newspapers, id. ¶ 36; Mulhollan had never previously told Davis
that his outside speaking on the topic of military commissions
was harmful to the Library, the CRS, or was prohibited, id. ¶ 40.
As in Keeffe, Mulhollan and the Library’s “course of dealings,”
777 F.2d at 1582, “entitled [Davis] to read the Library’s overly
long silence as assent,” id. at 1583.

The responses by the Library and Mulhollan are
unpersuasive. Although they maintain that as a probationary
employee Davis had no property interest in his job, see Piroglu
v. Coleman, 25 F.3d 1098, 1104 (D.C. Cir. 1994), Davis’s due
process claim is based on the violation of his liberty interest in
free speech. Among the reasons government employees may not
be terminated without violating their due process rights is for
their protected interest in the right to speak. See supra Part I.C.
Further, Davis is not challenging the Library’s exercise of
discretion not to have disciplined him for his previous outside
speaking, but Mulhollan’s termination of his employment
without “loud and clear advance notice,” Keeffe, 777 F.2d at
1583, given the Library’s previous course of dealing, that his
conduct could be punished. Mulhollan assented to Davis’s
previous speaking engagements, see Compl. ¶¶ 34–35, and he
terminated Davis’s employment because of his speech.
Regardless of whether Mulhollan had personally caused “the
Library’s overly long silence,” Keeffe, 777 F.2d at 1583, due
process required that as Davis’s supervisor he end the silence by
giving prior fair notice that Davis’s conduct was subject to
 26

punishment and could result in the termination of his
employment at the Library.

B.
Government officials are shielded from personal liability “if
their actions did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). What
is “clearly established” is not to be defined at a “high level of
generality,” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2084 (2011),
and although “[the Supreme Court] do[es] not require a case
directly on point, [] existing precedent must have placed the
statutory or constitutional question beyond debate.” Id. at 2083.
The district court denied Mullhollan’s motion to dismiss the
complaint on the ground of qualified immunity, agreeing with
Davis that Mulhollan’s own conduct indicated the First
Amendment right in question was sufficiently clear to him. The
complaint alleged that Mulhollan asked Davis to “acknowledge
that . . . the First Amendment . . . did not apply” to the
publication of the two opinion pieces that were the basis for the
termination of his employment. Compl. ¶¶ 56. As the district
court found, “Mulhollan was at least aware of ‘a general
constitutional rule already identified in the decisional law,”
Hope [v. Pelzer], 536 U.S. [730,] [] 741 [(2002)], and that this
constitutional rule might have applicability to [Davis’s]
articles.” Mem. Op. at 40.

Although qualified immunity defenses should be decided at
“the earliest possible stage in litigation,” Hunter v. Bryant, 502
U.S. 224, 227 (1991), where the Pickering test applies, unless
the “relative weight of the governmental interest and established
constitutional rights . . . [are] quite evident from the pleadings,”
a decision may “properly await some evidentiary development”
to determine “fact-dependent” interest balancing and thus may
 27

be inappropriate at the Rule 12(b)(6) stage. Navab-Safavi, 637
F.3d at 318. To the extent the Library and Mullhollan contend
that the potential harm to CRS was clear from the complaint and
the documents it incorporated by reference, see Appellant’s
Reply Br. 18–19, they rely on factual assertions about the nature
of Davis’s position and job responsibilities, CRS’s interest in
maintaining the appearance of objectivity and lack of bias, and
the content and tone of Davis’s opinion pieces – aspects of
which Davis disputes and are either untethered to or inconsistent
with the record now before the court. Under the circumstances,
a remand is required to develop a factual record.

Accordingly, I would affirm the district court’s ruling that
Davis’s complaint stated a valid Bivens claim and the denial of
the motion to dismiss the complaint except I would remand for
further fact-finding on the qualified immunity defense; I
respectfully dissent.