Morris Davis v. James Billington, et al

Filing 22

AMICUS FOR APPELLEE BRIEF [1329211] filed by Louis Fisher and Morton Rosenberg [Service Date: 09/13/2011 ] Length of Brief: 5,609. [11-5092] [Entered: 09/13/2011 12:33 PM]

'\
I

')
')
'\

U~it~~ ~f~tii~ ~ijiJ"t @F. ~~~il"b~

17,01'1 rJtt3'~lef fOIPA'L~~ENT SCHEDULED FOR NOVEMBER 10, 2011]

I

~i~~ ~~U ~GH

')

RE8EJ'v'ED

No. 11-5092

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

')
'\
;

\

MORRIS D. DAVIS,

\
I

'\

Plain tiff-Appellee,

/

\
/

v.

JAMES H. BILLINGTON, Librarian of Congress
in his official capacity,
Defendant,
DANIEL P. MULHOLLAN in his individual capacity,
Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No.l:10-cv-00036-RBW
(Reggie B. Walton, J.)

\
)

\

;

\

)

)

Brief of Dr. Louis Fisher and Mr. Morton Rosenberg
As Amici Curiae in Support of Plaintiff-Appellee
Louis Fisher
520 Ridgewell Way
Silver Spring, MD 20902

Morton Rosenberg
33 Eton Overlook
Rockville, MD 20850

[phone]

[phone]

\
J

)
)

)
)
)

)
)

)
)

)

September 9,2011

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
(A) Parties.
Col. Morris D. Davis is the Plaintiff-Appellee in this matter. The
Defendant-Appellant is Daniel P. Mulhollan. Dr. James H. Billington is a
Defendant in the case before the district court; he was sued in his official capacity,
and he is not a party to this appeal.

(B) Ruling Under Review.
The ruling under review is an Order denying Defendant-Appellant
Mulhollan's motion to dismiss based on qualified immunity, which was issued by
District Judge Reggie B. Walton on March 30,2011 and entered as Docket
Number 34. A Memorandum Opinion explaining the Order was issued the same
day and entered as Docket Number 35. It is available at No. 1:10-cv-00036-RBW,
2011 WL 1237919 (D.D.C. Mar. 30, 2011).

(C) Related Cases
This case has not previously been before this Court or any other court. We
are not aware of any related cases.

Louis Fisher
Morton Rosenberg

~)

.)

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3
GLOSSARY 4
INTEREST OF AMICI CURIAE 5
SUMMARY OF ARGUMENT 6
ARGUMENT 7
I. MULHOLLAN'S ACTIONS VIOLATE THE STATUTORY
MANDATE OF CRS AS SET FORTH IN THE LEGISLATIVE
REORGANIZATION ACT OF 1970 7
II. DAVIS'S OP-ED AND LETTER DID NOT HARM CRS 12
III. OUTSIDE SPEAKING AND WRITING ARE CRITICAL TO BEING
AN EFFECTIVE CRS EMPLOYEE 15
IV. DAVIS'S EXPRESSIONS OF EXPERT OPINIONS WERE NOT
INCOMPATIBLE WITH CRS DUTIES 17
V. DAVIS DID NOT HAVE FAIR WARNING THAT OUTSIDE
SPEAKING AND WRITING WERE NOT PERMITTED 20
CONCLUSION 27

2

)

,)

TABLE OF AUTHORITIES*

Cases

Keeffe v. Library o/Cong., 777 F.2d 1573 (D.C. Cir. 1985) ............................. 22, 24
Pickering v. Board 0/Education, 391 U.S. 563 (1968) ........................................... 22
Statutes

* Pub. L. 91-510, 84 Stat. 1140 (1970) ..................................................... 8

Congressional documents

S. Rept. No. 91-202, 91st Cong., 1st Sess.(1969) ........................................ 8
Miscellaneous

* FISHER, Louis. Defending Congress and the Constitution (Lawrence: University
of Kansas Press, 2011) ......................................... 9-10, 10-11, 14, 15, 16,25

*

. Deciding on War in Iraq: Institutional Failures, 118 Pol. Sci. W. 389

(2003) ..................................................................................... 25-26

*

. Power Struggle in Congress, U.S. News & World Report, April 23,

1973 ........................................................................................... 18

*
. Impoundment Relies on Weak Arguments, The [Washington] Sunday
Star and Daily News, February 25, 1973 ............................................ 17-18

* Roth, Dennis.

Testimony on February 24, 2010, before the House Committee on
Appropriations, printed as Legislative Branch Appropriations for 2011, Part 2,
Fiscal Year 2011, Legislative Branch Appropriations Requests, 111 th Cong., 2d
Sess. (2010) .............................................................................. 14-15

*

Authorities upon which we chiefly rely are marked with asterisks.
3

:)

GLOSSARY
CRS

Congressional Research Service

LRA

Legislative Reorganization Act

4

)

:)

INTEREST OF AMICI CURIAE!
Dr. Louis Fisher worked for Congressional Research Service from
September 1970 to March 2006, serving as Senior Specialist in Separation of
powers. He then served as Specialist in Constitutional Law with the Law Library
of Congress from March 2006 to August 2010. Dr. Fisher has published twenty
books and over 400 articles in law reviews, political science journals,
encyclopedias, and other publications. He has testified before congressional
committees 50 times on a range of constitutional issues. Many of his articles,
books, and congressional testimony are available on his personal webpage,
http://www.loufisher.org. He has received a number of book awards and scholarly

honors.
Mr. Morton Rosenberg worked for Congressional Research Service from
December 1972 to August 2008 and served as Specialist in American Public Law.
Mr. Rosenberg has published widely in law reviews and testifies frequently before
congressional committees on legal and constitutional matters. His monograph,

When Congress Comes Calling: A Primer on the Principles, Practices, and
Pragmatics a/Legislative Inquiry, was published by The Constitution Project in
2009. In 2005, he received the Mary C. Lawton Award for Outstanding Public
No counsel for a party authored this brief in whole or in part, and no such
counselor party made a monetary contribution intended to fund the preparation or
submission of this brief.
1

5

:)

Service by the American Bar Association Section of Administrative Law and
Regulatory Practice.
As former longtime senior CRS analysts, we are interested in this case. For
that reason, we submitted separate declarations in the Morris D. Davis case in
district court in 2010. Because the actions taken against Col. Davis by CRS
Director Daniel P. Mulhollan may potentially damage the integrity and competence
of the agency and weaken the institutional strength of Congress, we believe that
this brief will provide an important context and background on CRS practices and
policies. Throughout our careers at the Library of Congress, we regularly
expressed views on public policy questions in CRS memos, CRS reports,
congressional testimony, outside publications, and public talks, often taking
positions on controversial areas of public policy. This record of expressing expert
views became key factors in our advancement and recognition as senior level
analysts and contributed to our professional assistance to lawmakers and
congressional staff. 2

SUMMARY OF ARGUMENT
We believe the district court's decision should be affirmed because the
reasons offered by Mulhollan for his firing of Davis are at odds with CRS's
Plaintiff-Appellee has consented to the filing of this amici brief. DefendantAppellant has stated that he does not take a position on our request to file this brief.
Amici have filed a Motion for Leave to submit this brief.
2

6

.)

statutory mandate. Davis's op-ed in the Wall Street Journal and letter to the

Washington Post did not harm CRS. Outside speaking and writing are a critical
part of being an effective CRS employee and an essential means of achieving
national recognition and serving Congress. Because CRS analysts like us have
expressed our opinions in public for so many years, Mulhollan did not provide
Davis with fair warning that his op-ed and letter to the editor were impermissible
and would, in Mulhollan's mind, compromise his ability to serve effectively as a
CRS employee.

ARGUMENT
I. MULHOLLAN'S ACTIONS VIOLATE THE
STATUTORY MANDATE OF CRS AS SET FORTH
IN THE LEGISLATIVE REORGANIZATION ACT
OF 1970

In his Brief to this Court, Mulhollan concludes that the op-ed and letter to
the editor published by Davis in the Wall Street Journal and Washington Post
"were not constitutionally protected, because they interfered with CRS' s ability to
carry out its statutory mandate and with Davis's own job performance and working
relationships." Def.'s Br. 39 (emphasis in original). Because we believe
Mulhollan fundamentally misconceives, distorts, and violates the "statutory
mandate" of CRS, it is essential to clarify the intent of Congress when it created
CRS in 1970. Clearly Congress directed CRS to perform its duties "without
7

.j

partisan bias," id. A-2. No one disputes that. But Mulhollan acknowledges in the
Addendum to his Brief that Congress expected senior CRS staff to provide expert
views on public policy issues by providing "analysis, appraisal, and evaluation of
legislative proposals," determining "the advisability of enacting such proposals,"
estimating the "probable results of such proposals and alternatives," and evaluating
"alternative methods for accomplishing those results." Id. A-2, A-3. As explained
below, such assistance can come at the direct request of Congress or through
private publications and public statements by CRS analysts.
In 1970, after years of hearings and study, Congress passed legislation to
strengthen itself as an independent branch of government. Lawmakers recognized
that their institutional powers had declined and it was essential to rebuild their
capacity to assert legislative powers against the executive branch and better
exercise constitutional responsibilities. S. Rept. No. 91-202, 91st Cong., 1st Sess.
2 (1969). The Legislative Reorganization Act (LRA) of 1970 directed the Library
of Congress to prepare itself not merely for reference work but to recruit high-level
specialists to help Congress with substantive duties. Pub. L. 91-510, 84 Stat. 1140,
1181-85 (1970).
Dr. Fisher arrived at CRS in 1970 and Mr. Rosenberg two years later. Both
understood the important statutory mission of strengthening Congress and the
system of checks and balances. They wanted to assist in that commitment. When
8

.)

Mulhollan announced his intention to retire as CRS Director on January 19, 2011,
he articulated the same understanding of legislative intent. In a meeting with
agency employees, he spoke about joining the Library in 1969 at a time when the
country turned against President Lyndon Johnson because of the Vietnam War.
Congress "felt that it must bolster its capacities to govern and assess problems
independent of the executive." Statement of Daniel Mulhollan, January 19, 2011,
reprinted in LOUIS FISHER, DEFENDING CONGRESS AND THE CONSTITUTION 309
(2011). According to Mulhollan , the purpose of the LRA of 1970 was "to bolster
its standing as the First Branch of Government" and ensure that specialists in the
Library of Congress would provide "independent, objective sources of expertise,
analysis and information." Id. Congress insisted that it "have readily available
experts whose level of knowledge allows them to provide sophisticated analyses of
all issues." Id. Combined with other legislative initiatives, Congress "asserted its
prominence within the checks and balances of the American government." Id.
Mulhollan recalled several actions in those early years that "seared into my mind
the dangers inherent in the centralization of power within the executive branch."

Id.
Those are extraordinary statements. The remarks by Mulhollan in January
2011 accurately reflect the intent of Congress in 1970 to create a pool of Senior
Specialists and Specialists who would offer expert views to lawmakers on matters
9

of public policy. Id.287-89. Unfortunately, what Mulhollan proceeded to do in
his many years as CRS Director was to significantly undermine and violate
legislative intent and the express language of the LRA.
First, the Addendum to Mulhollan's Brief reproduces the statutory list of22
broad areas of public policy to be covered by CRS Senior Specialists and
Specialists: agriculture, American government and public administration,
American public law, conservation, education, engineering and public works,
housing, industrial organization and corporation finance, international affairs,
international trade and economic geography, labor and employment, mineral
economics, money and banking, national defense, price economics, science, social
welfare, taxation and fiscal policy, technology, transportation and communications,
urban affairs, and veterans affairs. The statute authorized the CRS Director to
supplement this list with other broad fields. Def. 's Br. A-4, A-5.
When Dr. Fisher became Senior Specialist in 1988, he joined 17 other
colleagues in the Office of Senior Specialists. FISHER, DEFENDING CONGRESS AND
THE CONSTITUTION, 289-90. They were not part of any CRS division and thus had
full freedom to initiate professional work subject only to review by the CRS front
office. One of Mulhollan's first actions was to eliminate the Office of Senior
Specialists and place Senior Specialists in divisions, subject to review and control
by division chiefs. With their independence weakened, a number of Senior
10

Specialists resigned and sought opportunities outside the Library. They were not
replaced. As a result of attrition and retirement, the number of Senior Specialist
has declined over the years until it now stands at four, all of them nearing
retirement. The positions of Senior Specialist, mandated by statute, will soon drop
to zero. Id. 290. Similarly, the number of Specialists has fallen from about 38 in
the late 1980s to three by the end of 20 11. Id. 290. That number will reach zero
with pending retirements.
During his time as CRS Director, Mulhollan took steps to effectively
eliminate the top two levels of experts within the agency that Congress had
established by law to assist it with substantive duties and constitutional analysis.
By law, Congress announced: "We need Senior Specialists and Specialists with
nationally recognized credentials to help us with our legislative and constitutional
duties." By administrative action, Mulhollan decided: "No, you don't."
The willingness of CRS management to violate both the express and intent
of the LRA of 1970 is underscored by another development. The Senior
Specialists and Specialists referred to above were appointed on the basis of their
analytical skills. To be selected, Senior Specialists had to compete against other
"nationally recognized experts.,,3 Individuals cannot develop that reputation by

3 "The specialized experience must have been such as to constitute an outstanding
and recognized professional attainment in the field as evidenced by academic
attainment, work experience, scholarly contributions, and professional associations
11

.)

being "neutral," "cautious," and "balanced" - which is how Mulhollan's Brief
describes the role of CRS employees. Instead of strengthening the agency (and
Congress) by appointing nationally recognized experts, Mulhollan began giving
the titles "Senior Specialist" and "Specialist" to administrative officials who did
not compete for the positions, were not nationally recognized experts, and lacked
the education, experience, and academic skills to function in the substantive areas
statutorily designated by Congress. None of these newly created "Senior
Specialists" and "Specialists" has the capacity to write analytical reports on the
substantive areas identified by Congress in the statute. None can meet with
lawmakers and staff to discuss substantive issues. None can testify before
congressional committees, as had been done on a regular basis by research Senior
Specialists and Specialists. Thus, contrary to Mulhollan's Brief, his actions fail to
comply with the statutory mandate.

II. DAVIS'S OP-ED AND LETTER DID NOT HARM CRS
In his Brief, Mulhollan states that a "reasonable official here also could have
concluded that Davis's publications caused substantial harm to his working
relationship with his direct supervisor, Mulhollan." Def. 's Br. 32. Mulhollan

sufficient to merit national recognition as an authority in the field of American
national government and public administration." The Library of Congress,
Vacancy Announcement No. 30309, May 12, 1983, for Senior Specialist in
American National Government and Public Administration.
12

)

explained that the CRS policy on outside speaking and writing emphasizes that
CRS employees "have a special responsibility to ensure that the agency's ability to
function is not compromised by the appearance that CRS has its own agenda, or
that it employees are so set in their personal views that they cannot be trusted to
provide objective research and analysis." Id. 30. He said that a "reasonable
official" in his position "could have concluded that Davis's termination was
permissible because the newspaper pieces compromised Davis's appearance of
objectivity, as well as that of his division and CRS as a whole; ... " Id.21.
In our judgment, there has been substantial harm to CRS as an institution.
The agency's ability to function has been compromised by managerial actions.
The harm and functional incapacity did not flow from actions by Davis. The
agency's professional descent began long before he arrived. It started with the
elimination of research Senior Specialist and Specialists, in direct defiance of
statutory mandates. The institutional decline accelerated by replacing research
Senior Specialists and Specialists with non-expert administrators who are
incapable of discharging the statutory purposes of the LRA of 1970. The decline
continued with vague managerial announcements about research "neutrality" and
"not taking positions" on controversial public policies. In recent years, political
scientists, historians, law professors, and professional societies have been highly
critical of Mulhollan for using the standard of "neutrality" to replace objective,
13

analytical, and useful research. FISHER, DEFENDING CONGRESS AND THE
CONSTITUTION, 298-307.
The damage done to the professional capacity of CRS by Mulhollan and
other CRS managers was discussed during House hearings in 2010. Dennis Roth,
head of the CRS union (CREA), testified before the House Appropriations
Committee that the firing of Davis "has had an intimidating and chilling effect"
within the agency. Statement by Dennis Roth, February 24, 2010, reprinted at
"Legislative Branch Appropriations for 2011, Part 2, Fiscal Year 2011, Legislative
Branch Appropriations Requests," hearings before the House Committee on
Appropriations, 111th Cong., 2d Sess. 54-55,58-59 (2010). He testified that CRS
employees want to participate in their fields of expertise, "but now they are
uncertain about possible negative consequences." Roth elaborated on the
incoherence and unfairness of CRS policy. Outside speaking and writing "are a
necessary, obligatory part of their duties, i.e., it is a promotion criterion." He
expressed concern that CRS employees, because of the firing of Col. Davis, "will
refrain from outside speaking and writing activities that could enhance their
professional reputations and, ultimately, enhance the credibility of the Service."
Roth noted that under CRS guidelines, "recognition of the analyst's professional
expertise" by "high ranking officials in State governments, public interest groups,
the courts, and subject matter experts and policy analysts in the Federal and other
14

)

.j

professional communities, among others, is a specific ranking factor in evaluation
for promotion to higher-level grades in CRS." But in seeking to gain such
recognition, CRS employees are at risk of being sanctioned or fired.
As the capacity of CRS declines as an analytical institution, Congress loses
an important resource specifically designed to provide professional assistance for
legislation and oversight. Malcolm M. Feeley, President of the Law and Society
Association and professor at the Boalt Hall School of Law, University of
California (Berkeley), wrote to Librarian of Congress James H. Billington on
February 15,2006, expressing concern about the direction ofCRS. The American
system depends on "the free flow of ideas and on policy built on credible
information." The Library of Congress and CRS were established "to provide
precisely this sort of information to members of Congress." Senior analysts had
been fulfilling that responsibility for years. To sanction them for doing so, he said,
"is outrageous." FISHER, DEFENDING CONGRESS AND THE CONSTITUTION, 305.

III. OUTSIDE SPEAKING AND WRITING ARE
CRITICALTO BEING AN EFFECTIVE CRS
EMPLOYEE
CRS Senior Specialists and Specialists have a long tradition of providing
assistance to Members of Congress and legislative committees through private
publications and outside speeches. Before joining CRS in September 1970, Dr.
Fisher published two articles on The President's refusal to spend appropriated
15

,)

funds. Funds Impounded by the President: The Constitutional Issue, 38 G.W. L.

REv. 124 (1969); The Politics o/Impounded Funds, 15 ADMIN. SCI. Q. 361 (1970).
Because of those publications, the Senate Judiciary Committee requested his
professional assistance over a period of years in participating in committee
hearings, committee markups, writing a section of the conference report, and
preparing a colloquy between Senators Sam Ervin and Hubert Humphrey to
explain the purpose of the Impoundment Control Act of 1974. FISHER,
DEFENDING CONGRESS

AND THE

CONSTITUTION, 207-09.

In 1991, Congress passed the Federal Employees Pay Comparability Act to
establish a senior level pay system. At that time, Mr. Rosenberg was one of23
Specialists in the CRS bargaining unit. All Specialists were required to
demonstrate each year the quality and quantity of written products and work for
members and committees and "intellectual leadership." To satisfy the latter, Mr.
Rosenberg provided a detailed account of his outside publications, speeches, or
lectures. He made CRS aware of everything he was doing and saying over the
years. He received an outstanding rating for every year from 1991 to his
retirement in 2008.
During their nearly eight decades of service to the Library of Congress, Dr.
Fisher and Mr. Rosenberg were frequently asked to testify on controversial matters
of public policy as a result of their private publications in law reviews and other
16
)

)

)

:}

scholarly journals. Outside writings were an important factor in developing their
reputation as nationally recognized scholars and prepared the way for their
appointments as Senior Specialist and Specialist. It is counterproductive for
Congress to seek nationally recognized scholars and have CRS managers silence
them.

IV. DAVIS'S EXPRESSIONS OF EXPERT OPINIONS
WERE NOT INCOMPATIBLE WITH CRS DUTIES
According to Mulhollan, Davis was fired for writing an op-ed in the Wall
Street Journal that "criticized Attorney General Eric Holder" and his letter to the
Washington Post that "sharply criticized a statement by former Attorney General

Michael Mukasey." Def.'s Br. 12. First, there was no issue of partisanship.
Objections were raised against both a Democratic and Republican Attorney
General. Second, it is fully consistent with the statutory mandate of CRS for
analysts and specialists to write frank assessments of public policy issues,
including public officials. In 1973, when he was a GS-13, Dr. Fisher published a
lengthy critique of the Nixon administration for impounding funds. Impoundment
Relies on Weak Arguments, The [Washington} Sunday Star and Daily News, Feb.

25, 1973, C-2. Included within his critique were statements by such high-level
officials as Richard Nixon, Roy Ash, and Casper Weinberger. The article,
providing no disclaimer, merely stated: "Louis Fisher is the author of 'President
and Congress: Power and Policy' (The Free Press)." CRS management was
17

pleased with his initiative and raised no objections to the content or the lack of a
disclaimer. The article was reprinted twice in the Congressional Record; 119
Congo Rec. 5801-03, 7087-88 (1973).
Also in 1973, Dr. Fisher was interviewed by U.S. News & World Report.
The interview ran six pages and included numerous personal judgments about
conflicts between the two elected branches, impoundment, executive privilege,
executive orders, nominations to the

Suprem~

Court, congressional investigations,

"leaks" of classified information, and national security. Power Struggle in
Congress, Interview With Louis Fisher, U.S. News & World Report, April 23,
1973, at 64-69. Unsure of clearance policies, Dr. Fisher submitted the interview
manuscript to CRS management, which insisted on only one change. Instead of
"Interview With Dr. Louis Fisher, Author," CRS asked that he add: "Analyst for
the Library of Congress." He did so. CRS was clearly pleased with the national
attention he received and wanted to share in it. The article indicated his affiliation
with the Library of Congress but lacked a disclaimer. CRS management raised no
objection. Over the years, Dr. Fisher appeared regularly on NPR and C-SPAN to
express expert views on pending issues of controversial public policy. At no time
did CRS management raise any objections to his appearances or lack of
disclaimers.

18

)

)

i)

Mr. Rosenberg experienced similar intellectual freedom to express expert
views in outside writing, including law reviews. Implicit in the LRA of 1970 was
the understanding that Senior Specialists and Specialists would be required to
maintain national recognition by public writings and lectures in their areas of their
expertise. He was encouraged by his division head to actively engage in such
activities and did so.
Throughout his tenure at CRS he dealt with issues of significant
constitutional, legal, and/or political sensitivity. When lawmakers and committees
asked for his expert views, he gave them. His style, in writing and in personal
contacts, was usually blunt and direct where research and analysis led him to a firm
conclusion. As some examples, he often told Members, chairs, and key staffers
what they did not want to hear. He criticized legislation, the failure of Congress to
properly oversee the executive branch, the Executive for usurping congressional
powers, and specifically criticized public officials who were responsible for the
decisions. He did all this with the full awareness and support of the CRS
managers. Mr. Rosenberg did so consistent with his understanding that in
providing candid and often critical opinions he was reflecting the professionalism,
reputation, and mission of CRS as a whole and that outside speaking, writing,
lecturing and teaching activities provided important opportunities for him and his
CRS colleagues for professional, career and personal growth.
19

)

oj

Despite his often blunt advice during his many decades of service at CRS,
Mr. Rosenberg does not recall any instance of a Member of Congress or staffer
ever questioning his objectivity or non-partisanship because he offered personal
opinions on controversial policy issues in outside speaking and writing activities.
Nor did a Member ever question CRS' s ability to serve as an objective, nonpartisan entity because of opinions he voiced in outside activities. Dr. Fisher had
the same experience. Members of Congress, legislative staff, and committees
asked for his expert views. They might disagree with some positions or
conclusions, but they never questioned his right and duty to speak plainly and offer
his evidence and reasoning.
V. DAVIS DID NOT HAVE FAIR WARNING THAT OUTSIDE
SPEAKING AND WRITING WERE NOT PERMITTED
At issue in this case is whether Mulhollan fired Davis without providing fair
warning that his speech was prohibited. In his Brief, Mulhollan faults Davis for
criticizing Attorney General Holder and former Attorney General Mukasey. After
being alerted to the publication of the pieces in the Wall Street Journal and the
Washington Post, Mulhollan sent an email to Davis "questioning his judgment and
his ability to continue to serve as Assistant Director." Def. 's Br. 12. Mulhollan
then issued a memorandum of admonishment, stating that Davis's op-ed and letter
to the editor "damaged his ability to lead his division in providing objective, nonpartisan analysis to the Congress." Id. 13. As explained earlier, there was nothing
20

.J

"partisan" about the publications. They criticized Attorneys General from both
political parties.
Mulhollan's Brief is clear that he knew that after Davis had resigned from
the military he "spoke publicly about what he perceived to be flaws in the military
commissions system for Guantanamo detainees. . .. He published articles in
newspapers and a law review, gave speeches, and testified before Congress."
Def.'s Br. 9-10. Mulhollan was therefore given "fair notice" that Davis had been
critical of military commissions in his writings, public speeches, and congressional
testimony. If CRS analysts are prohibited from taking positions on controversial
public policies (which certainly applied to military commissions), why would CRS
even interview Davis?
It is possible to interview someone whose record of public visibility and
advocacy is not acceptable to CRS management, but only if during the interview it
is pointed out that this past behavior cannot continue. However, after Davis began
working for CRS in December 2008, the CRS Deputy Director was aware that he
would attend and speak about military commissions at a Human Rights Watch
dinner. Id. 10. Davis was permitted to participate in a law school conference on
military commissions, on the condition that "he attend in his private time." Id. 11.
This condition was highly misleading. If CRS employees are not allowed to speak
publicly about controversial issues of public policy, it should be irrelevant whether
21

)

.J

the event is scheduled on official leave or by taking vacation. According to
Mulhollan's reasoning, either type of professional activity would violate CRS
management policy. These (and other) mixed signals from Mulhollan and senior
CRS managers failed to give Davis clear guidance and fair warning. What was the
CRS policy? It appears that CRS employees may not speak on controversial public
policies without risk of punishment or removal. If that policy had been made clear,
employees who decided to ignore the policy would clearly endanger their careers.
No such clarity appears with CRS policy toward Davis.
Due process is violated whenever a statute or ordinance is so vague that "it
does not give fair warning of the proscribed conduct" or is an "unrestricted
delegation of power that enables enforcement officials to act arbitrarily and with
unchecked discretion." Keeffe v. Library oICong., 777 F.2d 1573, 1581 (D.C. Cir.
1985). Mulhollan failed to give fair warning to Davis; the policies he promoted for
all CRS employees were inherently vague and permitted arbitrary enforcement. As
a result, Davis was exposed to agency action that was capricious and
unconstitutional, especially because it violated the core constitutional right of free
speech for public employees and their right to comment upon matters "of public
concern." Pickering v. Board 01 Education, 391 U.S. 563 (1968).
Mulhollan's Brief maintains that a "reasonable official" in his position
"could have concluded that Davis's termination was permissible because the
22

:)

newspaper pieces compromised Davis's appearance of objectivity, as well as that
of his division and CRS as a whole; called into question Davis's professional
judgment and his ability to serve as an example for his subordinates on compliance
with CRS policies; and harmed his working relationship with his direct supervisor.
Mulhollan was therefore entitled to qualified immunity on the First Amendment
claim." Def.' s Br. 2l.
First, it was never demonstrated how or why the newspaper pieces
"compromised Davis's appearance of objectivity." Precisely what form of
compromise emerged is wholly unclear. The same vagueness occurs with the
phrase "appearance of objectivity." CRS management realized before they
interviewed Davis that he had criticized military commissions. They knew that
when they hired him. They continued to understand his objections to military
commissions when he spoke and attended conferences on military commissions.
No one who followed Davis could have been in the least surprised by what he
wrote in the Wall Street Journal and Washington Post.
As for the "appearance of objectivity," Davis explained in clear terms why
he disagreed with former Attorney General Mukasey. Focusing on evidence and
reasoning (supposedly the hallmarks of objectivity), his op-ed and letter easily met
professional and academic standards. Therefore, there is no reason to call "into
question Davis's professional judgment." His op-ed and letter were sound and
23

)

:)

clear. No shadow was thrown over his "ability to serve as an example for his
subordinates on compliance with CRS policies." Mulhollan has not identified any
analytical deficiencies in the op-ed, other than to use phrases like "sharply
criticized" (id. 12), "strongly worded" (id. 31), "personal tone" (id. 31),
"inflammatory criticisms of high-level government officials" (id. 38), and "strident
criticisms of current and former government officials" (id. 39). We regard the oped by Davis as more measured and professional than the action take by Mulhollan
against Davis,· which suggests that current and former government officials should
be beyond the reach of frank criticism.
Such a position would open the door to punishment by agency officials for
any employee who criticized Congress, the President, or the Supreme Court.
Consider this sentence in the Mulhollan Brief: "At the very least, a reasonable
government official in Mulhollan's position could have concluded that any
inconsistency in the prior application of the CRS policy on outside speaking and
writing did not prohibit CRS from responding to a particularly egregious violation
of that policy by terminating Davis's probationary employment." Id.45. This
sentence concedes that there was some "inconsistency" in how CRS policed
outside speaking and writing in the past. That is the type of "arbitrary" and
"unchecked discretion" identified by the D.C. Circuit in Keeffe. Moreover, how

24

)

.)

could CRS employees possibly monitor their speaking and writing to ensure that it
is not "particularly egregious" to management?
We are left with the final reason for firing Davis. The dispute over his op-ed
and letter "harmed his working relationship with his direct supervisor." Id.21. On
that ground, Mulhollan argues for qualified immunity for his decision to remove
Davis from the agency. What objective signal does that send to CRS employees?
They are put on notice that if they say someone or write something that "harms
their relationship with a direct supervisor," they can be sanctioned or removed.
This language in the Mulhollan Brief highlights the arbitrary and capricious
climate that existed at CRS when Davis arrived and went to work. It also
underscores the degree to which Mulhollan's action collides with the statutory
mandate of CRS to provide analytical assistance to Congress.
There is another reason why Davis has a right to recover damages from
Mulhollan. From January 2004 to March 2006, Mulhollan attempted to punish Dr.
Fisher for an article he published in Political Science Quarterly, a peer-reviewed
journal at Columbia University. Deciding on War in Iraq: Institutional Failures,
118 POL. SCI. Q. 389 (2003), http://www.1oufisher.org/docs/wp/423.pdf. The
Library's General Counsel's office intervened to tell CRS that it could not sanction
him for expressing his expert views in this journal. The attorneys in the office read

25

:)

the article and concluded that he had a First Amendment right to have it published.
FISHER, DEFENDING CONGRESS AND THE CONSTITUTION,

290-306.

Dr. Fisher was eventually transferred to the Law Library in March 2006,
where he recovered his intellectual freedom. Over a period of almost five years, he
testified eleven times on a number of controversial public policies stretching over a
period of decades, often a half-century or more: presidential item veto, war powers,
NSA surveillance, the state secrets privilege, restoring the rule of law, national
security whistleblowers, and criminal penalties for Presidents and executive
officials who mislead Congress and the public about the need for military force.
On each occasion he offered professional judgments on pending legislation. There
was no effort within the Law Library to water down his views to satisfy some
standard of "neutrality." Id., 306.
On the basis of this experience with Dr. Fisher and the Library's General
Counsel's office, Mulhollan was fully educated on the rights of free speech within
the Library and CRS. He had learned limits to his authority to sanction employees
for outside writing. Any reasonable official would not have treated Davis in the
manner of Mulhollan.

26

.)

CONCLUSION
For the foregoing reasons, the D.C. Circuit should affirm the order of the
district court and return the case for further proceedings.
)

Louis Fisher
Morton Rosenberg

27

)

oJ

CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 5,609 words, including the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Times New Roman.

~~
Louis Fisher
Morton Rosenberg
Amici for Plaintiff-Appellee Morris D. Davis
Dated: September 9, 2011

28

CERTIFICATE OF SERVICE
On September 9, 2011, we filed in person one original and eight copies of
our amici brief to the D.C. Circuit.

Louis Fisher
Morton Rosenberg

Executed on September 9, 2011

29
)