Morris Davis v. James Billington, et al

Filing 25

APPELLANT REPLY BRIEF [1330023] filed by Daniel P. Mulhollan [Service Date: 09/16/2011 ] Length of Brief: 6,819 words. [11-5092] (Swingle, Sharon) [Entered: 09/16/2011 01:12 PM]

[ORAL ARGUMENT SCHEDULED FOR NOVEMBER 10, 2011]
No. 11-5092
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________
MORRIS D. DAVIS,
Plaintiff-Appellee,
v.
JAMES H. BILLINGTON, in his official capacity as
the Librarian of Congress,
Defendant-Appellee,
DANIEL P. MULHOLLAN, in his individual capacity,
Defendant-Appellant.
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________
REPLY BRIEF FOR DEFENDANT-APPELLANT
_______________
TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.
United States Attorney
THOMAS M. BONDY
[phone]
SHARON SWINGLE
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7250
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

TABLE OF CONTENTS
Page
GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . 1
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.

THE PLAINTIFF HAS NOT SHOWN THAT MULHOLLAN VIOLATED
A CLEARLY ESTABLISHED FIRST AMENDMENT RIGHT. . . . . . . . . 6
A.

A Reasonable Officer In Mulhollan’s Position Could Conclude
That The Plaintiff’s Publications Damaged His Ability To
Perform His Job Effectively. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.

The Fact That The Plaintiff’s Speech Was Outside Of
The Workplace And Did Not Involve A Work-Related
Issue Does Not Establish That It Was Harmless. . . . . . . . . . . . 7

2.

The Plaintiff’s Publications Were Particularly Harmful
Given CRS’s Unique Role To Provide Objective,
Unbiased, And Non-Partisan Analysis And Research To
Congress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3.

The Plaintiff’s High-Level Position As CRS Assistant
Director And The Nature Of His Responsibilities
Increased The Harm From His Publications. . . . . . . . . . . . . . 12

4.

The Plaintiff’s Assertions That He And Other CRS
Employees Previously Spoke Publicly On Controversial
Subjects Do Not Undermine Our Showing Of Harm.. . . . . . . 15

i

B.

The Plaintiff’s Arguments Against Qualified Immunity Are
Without Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.

Mulhollan Is Not Required To Show Actual Harm
To CRS To Demonstrate His Entitlement To
Qualified Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2.

The Potential Harm To CRS Resulting From The
Plaintiff’s Publications Was Clear From The
Complaint And The Documents Incorporated By
Reference, And Mulhollan Did Not Need To
Develop An Evidentiary Record. . . . . . . . . . . . . . . . . . . . . . . 18

3.

The Plaintiff Has Not Shown That Mulhollan’s
Conduct Was Clearly Unlawful Under Existing
Precedent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

II.

THE PLAINTIFF HAS NOT SHOWN THAT MULHOLLAN
VIOLATED ANY CLEARLY ESTABLISHED DUE PROCESS
RIGHT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

III.

THE DISTRICT COURT ERRED IN RECOGNIZING AN IMPLIED
BIVENS CLAIM FOR THE PLAINTIFF TO CHALLENGE
MULHOLLAN’S TERMINATION OF HIS PROBATIONARY
EMPLOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES
Cases:

Page

Adams v. Gunnell, 729 F.2d 362 (5th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . 24
*Anderson v. Creighton, 483 U.S. 635 (1987). . . . . . . . . . . . . . . . . . . . . . 15, 22, 25
*Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011). . . . . . . . . . . . . . . . . . . . . . 1, 4, 21, 22
*Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26
Barker v. City of Del City, 215 F.3d 1134 (10th Cir. 2000). . . . . . . . . . . . . . . . . 20
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 26, 27, 29, 30, 32
Bonds v. Milwaukee County, 207 F.3d 969 (7th Cir.),
cert. denied, 531 U.S. 944 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Branti v. Finkel, 445 U.S. 507 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bush v. Lucas, 462 U.S. 367 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Bynum v. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000). . . . . . . . . . . . . 24
Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d 225
(2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
City of San Diego v. Roe, 543 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Connick v. Myers, 461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Davis v. Passman, 442 U.S. 228 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
____________________________________
* Authorities upon which we chiefly rely are marked with asterisks.
iii

Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405
(D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
Garcetti v. Ceballos, 547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . 20
*Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988). . . . . . . . . . . . . . . . . . . . . . 12, 14, 19
Hope v. Pelzer, 536 U.S. 730 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Keeffe v. Library of Congress, 777 F.2d 1573
(D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Keyishian v. Board of Regents, 385 U.S. 589 (1967). . . . . . . . . . . . . . . . . . . . . . 24
Kotarski v. Cooper, 866 F.3d 311 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . 30
Malley v. Briggs, 475 U.S. 335 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . 8
Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011). . . . . . . . . 9, 18, 19, 22
Navab-Safavi v. Broadcasting Board of Governors,
650 F. Supp. 2d 40 (D.D.C. 2009). . . . . . . . . . . . . . . . . . . . . . . 18, 29, 22, 31
*O’Donnell v. Barry, 148 F.3d 1126 (D.C. Cir. 1998).. . . . . . . . . . . . . . . . . . 12, 14
Pickering v. Board of Education of Township High, 391
U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12, 19, 22
Procunier v. Martinez, 416 U.S. 396 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
*Rankin v. McPherson, 483 U.S. 378 (1987). . . . . . . . . . . . . . . . . . . 7, 8, 12, 14, 24
Saucier v. Katz, 533 U.S. 194 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
iv

*Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988). . . . . . . . . . . . . . . . . . . . 29, 30
Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Fausto, 484 U.S. 439 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Vojvodich v. Lopez, 48 F.3d 879 (5th Cir.),
cert. denied, 516 U.S. 861 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Waters v. Churchill, 511 U.S. 661 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Wilson v. Layne, 526 U.S. 603 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
*Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008),
cert. denied, 129 S. Ct. 2825 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Wolfel v. Morris, 972 F.2d 712 (6th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . 24
Constitution:
U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 8, 14, 20, 22, 23, 28, 31
U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23, 24, 25, 26, 28
Statutes:
Congressional Accountability Act of 1995, Pub. L. No. 104-1,
109 Stat. 3 (CAA).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28, 29, 30
Civil Service Reform Act:
5 U.S.C. § 2101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 U.S.C. § 4303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 U.S.C. § 7103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 U.S.C. § 7511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

28
28
28
28

GLOSSARY
CAA

Congressional Accountability Act of 1995

CRS

Congressional Research Service

CSRA

Civil Service Reform Act

vi

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________
No. 11-5092
_______________
MORRIS D. DAVIS,
Plaintiff-Appellee,
v.
JAMES H. BILLINGTON, in his official capacity as
the Library of Congress,
Defendant-Appellee,
DANIEL P. MULHOLLAN, in his individual capacity,
Defendant-Appellant.
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________
REPLY BRIEF FOR DEFENDANT-APPELLANT
_______________
INTRODUCTION AND SUMMARY OF ARGUMENT
As Daniel Mulhollan showed in his opening brief, the district court erred in
refusing to dismiss the claims against him on the basis of qualified immunity — a
doctrine that is intended to protect all government officials but the “plainly
incompetent and those who knowingly violate the law” from the threat of personal
liability and the burdens of litigation. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2085
(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

A reasonable official in Mulhollan’s position could conclude that it was
lawful to terminate Morris Davis’s probationary employment as head of the
Foreign Affairs, Defense, and Trade Division of the Congressional Research
Service (CRS), after Davis published pieces in national newspapers criticizing the
current Attorney General’s decision to try some Guantanamo detainees before
military commissions and questioning the good faith and credibility of the former
Attorney General and Vice President. The plaintiff’s publications — submitted
without the prior authorization or even knowledge of CRS officials, and lacking
the disclaimer explicitly required by the applicable Library of Congress
regulation — harmed his ability to lead his Division in providing objective advice
on defense policy and foreign affairs and in maintaining good relations with the
relevant congressional committees with jurisdiction over those areas. The
plaintiff’s conduct cast doubt on his ability to continue to enforce agency policies
on outside speaking and writing on employees under his management and
supervision, and to serve as an example of compliance for employees who looked
to him for guidance and leadership. And the plaintiff’s publications and his
subsequent refusal to recognize the potential harm they could cause also damaged
his working relationship with his direct supervisor, and raised doubts about his
judgment.
2

The plaintiff argues that his publications did not harm CRS, yet essentially
ignores CRS’s statutory mission to provide objective, unbiased, and nonpartisan
advice to Members of Congress and their staff. That mission was compromised
when a senior official made controversial public statements about a policy issue
pending before the same congressional committees that his Division served. The
plaintiff also quotes from the Library of Congress regulation “encouraging” staff
members to engage in public speech, without acknowledging the regulation’s
directive that employees shall “avoid sources of potential damage to their ability to
perform official Library duties in an objective and nonpartisan manner,” Library of
Congress Regulation 2023-3, § 3(B), and the CRS policy’s explicit warning that
employees should not engage in speaking or writing that creates a perception that
they have a personal agenda or cannot be trusted to provide objective research and
analysis. The plaintiff also struggles unsuccessfully to characterize himself as a
low-level manager without any substantive responsibility or authority, despite the
fact that he led the Division’s 95-member professional staff and was responsible
for directing their research and analytic activities. Finally, the plaintiff alleges that
he and other CRS employees engaged in controversial public speech in the past
without evident harm to the agency, but he fails to allege that the statements were

3

similar to the publications here or that Mulhollan had knowledge of those prior
statements.
The plaintiff labors to show that his complaint alleges a violation of the
First Amendment, see Pl. Br. 13-26 — but government officials are permitted to
“make reasonable but mistaken judgments about open legal questions” without
losing the protection of qualified immunity. Al-Kidd, 131 S. Ct. at 2085. He also
asserts that Mulhollan is not entitled to qualified immunity unless he proves that
the plaintiff’s speech caused CRS actual harm. Pl. Br. 11. But government
officials are entitled to restrict employees’ speech based on reasonable predictions
of harm, without waiting for that harm to become manifest and disrupt the
agency’s operations. And the reasonableness of their actions can, in cases such as
this one, be determined based on the pleadings.
The plaintiff also fails to show that Mulhollan’s alleged conduct violated
any clearly established due process right. The plaintiff does not dispute that he
lacked a protected interest in his probationary employment. He claims that he was
nevertheless entitled to prior notice before he could be fired, but the cases he cites
do not support his argument — much less show that his asserted right was clearly
established. Furthermore, Mulhollan may not be held liable for any lack of notice

4

resulting from the conduct of other government officials, simply because he made
the ultimate decision to terminate the plaintiff.
Finally, the plaintiff’s claims against Mulhollan should have been dismissed
in any event, because the district court erred in implying a claim against Mulhollan
for money damages under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). In enacting the Civil Service Reform
Act (CSRA), Congress intentionally denied federal employees the right to judicial
review of the termination of probationary employment. Furthermore, although
Congress gave certain rights to employees of the Library of Congress in the CSRA
and the Congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3
(CAA), including a right of judicial review of certain adverse employment actions,
Congress did not create a judicial remedy for Library of Congress employees to
challenge the termination of probationary employment in alleged violation of the
First Amendment. In these circumstances, the exclusive judicial remedy available
to the plaintiff is an action for injunctive relief brought directly against the Library
of Congress.
The plaintiff asserts that an implied claim for money damages must be
available because otherwise his harm might not be fully remedied. As this Court
has repeatedly held, however, the fact that a plaintiff might not have a complete
5

remedy does not show that a Bivens claim is valid. The creation of a money
damages remedy for the harm that the plaintiff alleges is a matter for Congress, not
the district court.
ARGUMENT
I.

THE PLAINTIFF HAS NOT SHOWN THAT MULHOLLAN
VIOLATED A CLEARLY ESTABLISHED FIRST AMENDMENT
RIGHT.
A.

A Reasonable Officer In Mulhollan’s Position Could Conclude
That The Plaintiff’s Publications Damaged His Ability To
Perform His Job Effectively.

As we showed in the opening brief, the plaintiff’s publications called into
question his objectivity and lack of bias on a key policy issue pending before the
congressional committee members and staff for whom the Foreign Affairs,
Defense, and Trade Division provided research and analysis. Furthermore,
Davis’s failure to seek advance approval from CRS before submitting his writing
for publication, as he had previously done, or to include the disclaimer required by
the Library of Congress regulation, cast doubt on his ability to enforce the CRS
policy and Library of Congress regulation among his staff and to serve as an
example of compliance. Davis’s conduct, as well as the tone of his publications,
also cast doubt on his professional judgment. And the publications fractured the
relationship between the plaintiff and his direct supervisor, Director Mulhollan.
6

Because a reasonable official in Mulhollan’s position could have determined that
it was lawful in those circumstances to terminate the plaintiff’s probationary
employment, Mulhollan was legally entitled to qualified immunity.
The plaintiff raises a number of interrelated arguments about why his speech
was unlikely to harm CRS, his Division, or his ability to successfully serve as
Assistant Director. None of them is persuasive.
1.

The Fact That The Plaintiff’s Speech Was Outside Of The Workplace
And Did Not Involve A Work-Related Issue Does Not Establish That
It Was Harmless.

The plaintiff argues that his publications could not have harmed CRS
because they were written and published in his private time, and were not focused
on his agency, supervisors, or a work-related issue. Pl. Br. 18. His arguments are
premised on an erroneously restrictive view of the government’s interests.
The Supreme Court has made clear that employee speech can harm a
government employer even if does not directly criticize the employer or relate to
the employer’s policies. In Rankin v. McPherson, 483 U.S. 378 (1987), the Court
recognized that the government employer may be harmed by an employee’s public
statements that “discredit[]” the employer. Id. at 388-389. Similarly, the Court
recognized in City of San Diego v. Roe, 543 U.S. 77 (2004), that employee speech

7

can be “detrimental” to the employer and “harmful to [its] proper functioning even
if it had nothing to do with the employer’s workings or functionings.” Id. at 81.
The basic premise of the balancing test set forth in Pickering v. Board of
Education of Township High, 391 U.S. 563 (1968), is that, in appropriate
circumstances, an employee’s private speech may sufficiently implicate the
government’s interests as an employer that it may be restricted without violating
the First Amendment. Thus, a governor may consider the political views of a
candidate for confidential assistant even if they do not relate directly to the
assistant’s official responsibilities. See Branti v. Finkel, 445 U.S. 507, 518 (1980).
Likewise, an employee in the sheriff’s office can be lawfully dismissed because of
his service as a Klux Klan recruiter in his private time. See McMullen v. Carson,
754 F.2d 936, 939-940 (11th Cir. 1985) (cited with approval in Rankin, 483 U.S.
at 391 n.18). Here, a reasonable official in Mulhollan’s position could have
concluded that the balance of relative interests weighed in favor of CRS.
The plaintiff also relies on the fact that the publications were circulated
outside of the workplace in arguing that they caused no harm. If anything,
however, the fact that the publications were in major newspapers with broad
national and international circulation simply increases their potential damage to
CRS’s interests. Cf. Rankin, 483 U.S. at 390 (relying on the fact that employee’s
8

speech was private in concluding that any harm to the employer was minimal).
Notably, the plaintiff does not contest our showing that the key constituents of his
Division — members of Congress and their staff with responsibility for Foreign
Affairs, Defense, and Trade issues — would likely have identified him as the
author of the publications.
2.

The Plaintiff’s Publications Were Particularly Harmful Given CRS’s
Unique Role To Provide Objective, Unbiased, And Non-Partisan
Analysis And Research To Congress.

In weighing the harm threatened by the plaintiff’s publications, it is critical
to give weight to CRS’s statutory mission to provide objective, unbiased, and nonpartisan analysis and advice to Congress. This Court recognized in Navab-Safavi
v. Glassman, 637 F.3d 311 (D.C. Cir. 2011), that a government employer may
have a weighty interest in protecting its reputation for objectivity. Id. at 316-317.
Here, CRS’s basic mission was compromised when its senior official made
controversial public statements about a policy issue pending before the very
congressional committees that his Division served.
In challenging the government’s showing of harm, the plaintiff relies
heavily on a Library of Congress regulation that “encourage[s]” staff members “to
engage in teaching, lecturing, or writing that is not prohibited by law.” Pl. Br. 15.
This same regulation, however expressly cautions staff members to “avoid sources
9

of potential damage to their ability to perform official Library duties in an
objective and nonpartisan manner.” Library of Congress Regulation 2023-3,
§ 3(B), JA 97.
Furthermore, CRS’s policy on outside speaking and writing specifically
recognizes that the statutory mission to provide “balanced, objective, and nonpartisan support to Congress places a challenging responsibility on all CRS staff
that is of critical importance.” CRS policy 2, JA 102. The CRS policy warns
employees that their outside speech and writing, particularly on controversial
matters, can compromise the ability of the agency to serve Congress by creating
the “appearance that the Service has its own agenda,” or that its analysts are “so
set in their personal views” that they cannot provide objective analysis and
research. CRS policy 2, JA 102. The controversial content and charged rhetoric
of the plaintiff’s publications could cause a reasonable official to conclude that
they undermined the plaintiff’s appearance of objectivity, as well as the reputation
of his Division and CRS as a whole.
The plaintiff also argues that his speech could not have harmed CRS’s
operations because neither he nor his Division was responsible for the issue
whether Guantanamo detainees should be prosecuted before military commissions.
Pl. Br. 20, 24-25. Even accepting the plaintiff’s assertion as true at this stage of
10

the proceedings,1 his conclusion does not follow. The plaintiff led the CRS
Division responsible for Foreign Affairs, Defense, and Trade, including
maintaining strong relationships with the congressional committees with
responsibility for those areas. He does not contest that the same congressional
committees responsible for defense matters also had jurisdiction over Guantanamo
military commissions. A reasonable official could conclude that the plaintiff’s
controversial and intemperate publications undermined his perceived objectivity
before the key constituents of his Division. And, of course, the fact that a highlevel CRS official spoke out on this issue undermined CRS’s own reputation for
providing objective, unbiased, and non-partisan research and analysis, and cast
doubt on the plaintiff’s professional judgment. Cf. Bonds v. Milwaukee County,
207 F.3d 969, 981-982 (7th Cir.) (holding that employee’s critical remarks about
his current employer’s policy cast doubt on his loyalty and trustworthiness, and
justified the withdrawal of an offer of employment by a different government
employer), cert. denied, 531 U.S. 944 (2000).

1

As noted in the opening brief, Mulhullan Br. 4 n.1, it is evident from even the
limited evidentiary record before the district court in connection with the motion
for a preliminary injunction that many of the plaintiff’s factual allegations are
inaccurate.
11

3.

The Plaintiff’s High-Level Position As CRS Assistant Director And
The Nature Of His Responsibilities Increased The Harm From His
Publications.

The Supreme Court recognized in Rankin that “[t]he burden of caution
employees bear with respect to the words they speak will vary with the extent of
authority * * * the employee’s role entails.” 483 U.S. at 390; see also O’Donnell
v. Barry, 148 F.3d 1126, 1135-1136 (D.C. Cir. 1998); Hall v. Ford, 856 F.2d 255,
263 (D.C. Cir. 1988). The fact that the plaintiff was a CRS Division head who
directed and supervised the activities of 95 researchers and analysts, and reported
directly to the head of the agency, further compounded the potential harm caused
by his publications.
The plaintiff cites this Court’s decision in O’Donnell for the proposition
that even a high-level official may have an interest in speaking that outweighs the
interest of the government employer. Pl. Br. 20-21. That holding, however,
simply underscores the context-specific nature of the Pickering balancing test.
Furthermore, and as O’Donnell held, the fact that the lawfulness of an employee’s
termination is not necessarily apparent under Pickering does not establish that the
individual defendant is not entitled to qualified immunity. 148 F.3d at 288.
The plaintiff also challenges his characterization as a high-level official,
arguing that he had no responsibility for formulating, implementing, or
12

articulating agency policy. Pl. Br. 24-26. But the plaintiff’s complaint and the
documents incorporated by reference show that the plaintiff led all operations of
his Division, managed 95 professional employees, and reported directly to the
Director of CRS. Complaint 8, JA 17; Memorandum of admonishment 2, JA 89.
He was clearly one of the senior officials at CRS. And although CRS does not
establish substantive government policy, the agency identifies critical areas for
research and analysis, and develops and implements programs to carry out its
functions — tasks for which the plaintiff had ultimate responsibility on behalf of
his Division.
Furthermore, the plaintiff was responsible for enforcing the CRS policy on
outside speaking and writing within his Division. See Memorandum of
admonishment 2, JA 89. The fact that the plaintiff submitted his writings for
publication without seeking advance approval could lead a reasonable supervisor
to question his ability effectively to enforce the CRS policy in his Division, and to
serve as an example of compliance to his staff. The plaintiff argues that there is
no categorical requirement of pre-approval and that any such requirement would
be unconstitutional. Pl. Br. 31. But CRS policy “strongly encourages” employees
to submit publications for clearance, CRS policy 1, JA 101, and the agency head is
entitled to conclude that a senior official who refuses to do so lacks judgment or is
13

unsuited for leadership. And the plaintiff does not dispute that his publications
failed to include a disclaimer, as explicitly required by the Library of Congress
regulation. Library of Congress Regulation 2023-3, § 3(B), JA 97.
The plaintiff also argues that a reviewing court should not give any weight
to his direct supervisor’s view that his publications caused harm to the agency and
fractured their working relationship. Pl. Br. 18, 32. The argument is flatly
contrary to governing precedent, which recognizes that the government has an
interest in regulating employee speech that harms relationships among employees,
particularly “close working relationships for which personal loyalty and
confidence are necessary,” such as among high-level officials. See Rankin, 483
U.S. at 388, 390; see also, e.g., O’Donnell, 148 F.3d at 1138; Hall, 856 F.2d at
263-264. It does not “eviscerate public employee First Amendment protections”
(Pl. Br. 32) to recognize that, where a high-level official publishes controversial
and highly charged pieces in the national media, in violation of the letter and spirit
of the policy on outside speaking drafted by his direct supervisor, that supervisor
could reasonably conclude that trust in the employee’s judgment is no longer
warranted.

14

4.

The Plaintiff’s Assertions That He And Other CRS Employees
Previously Spoke Publicly On Controversial Subjects Do Not
Undermine Our Showing Of Harm.

Finally, the plaintiff argues that his speech could not have caused harm to
CRS because he previously engaged in similar speech before and after starting
work at CRS, and other CRS employees also engaged in public speech on
controversial matters, without demonstrated harm to the agency. Pl. Br. 15-16, 19.
As we have already shown (Mulhollan Br. 37-38), however, the plaintiff has not
alleged that Mulhollan himself knew of past instances of similar speech. Because
the qualified immunity analysis turns on what a reasonable official in Mulhollan’s
shoes would have thought, see, e.g., Anderson v. Creighton, 483 U.S. 635, 641
(1987), these past instances are not relevant to the issue before the Court.
Furthermore, although the plaintiff claims to have engaged in similar speech
after beginning his employment with CRS, he specifically sought advance
approval from CRS officials before speaking or writing publicly — something he
failed to do before submitting his publications to the Washington Post and the
Wall Street Journal. Indeed, the very fact that he previously sought advance
approval suggests his awareness that such speech could threaten the interests of
CRS as an employer. And whatever the content of the plaintiff’s pre-employment

15

speech, CRS officials were entitled to assume that he would comply with the CRS
policy on outside speaking and writing once he started his employment.
As for the speech of other employees, the plaintiff does not allege that the
employees were high-level CRS officials, that their speech was likely to be read by
the same people with whom they dealt in their official capacity, that the speakers
violated the Library of Congress Regulation or CRS policy, or other facts showing
that they were similarly situated to the plaintiff. Nor is it clear that this alleged
outside speaking and writing occurred after the adoption of CRS’s current policy
on outside speaking and writing. Cf. Complaint ¶¶ 72-77, JA 27-28. The
plaintiff’s bare assertion that prior speech took place does not undermine
Mulhollan’s showing that a reasonable government official in his circumstances
could have believed that the plaintiff’s speech threatened harm to the agency and
warranted termination of his probationary employment.
B.

The Plaintiff’s Arguments Against Qualified Immunity Are
Without Merit.
1.

Mulhollan Is Not Required To Show Actual Harm To CRS To
Demonstrate His Entitlement To Qualified Immunity.

The plaintiff argues that the claims against Mulhollan cannot be dismissed
on the basis of qualified immunity unless Mulhollan establishes that the plaintiff’s
publications caused actual harm to CRS. But Mulhollan was entitled to terminate
16

the plaintiff’s probationary employment based on reasonable predictions that the
publications damaged the plaintiff’s ability to perform his job effectively.
Mulhollan was not required to wait for that harm to became full-blown and to
undermine CRS’s reputation for objectivity and balance, as well as damage
working relationships within CRS.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court recognized
that restrictions on the speech of government employees can be “directed at speech
that has some potential to affect the entity’s operations.” Id. at 418 (emphasis
added). Connick v. Myers, 461 U.S. 138, 151-152 (1983), similarly holds that a
government employer is not required to wait until “disruption of the office and the
destructions of working relationships is manifest” before it may take action in
response to an employee’s speech. And the plurality in Waters v. Churchill, 511
U.S. 661 (1994), considered at length the necessary showing of harm that must be
made in this context, emphasizing that the Supreme Court has “consistently given
greater deference to government predictions of harm used to justify restriction of
employee speech than to predictions of harm used to justify restrictions on the
speech of the public at large,” and has upheld restrictions even where the danger
sought to be avoided “is mostly speculative.” Id. at 673.

17

2.

The Potential Harm To CRS Resulting From The Plaintiff’s
Publications Was Clear From The Complaint And The Documents
Incorporated By Reference, And Mulhollan Did Not Need To
Develop An Evidentiary Record.

Contrary to the plaintiff’s suggestion, furthermore, Pl. Br. 16-17, there is no
categorical rule that a case cannot be dismissed on qualified immunity grounds at
the pleading stage where the claim challenges a government employee’s
termination for speaking on a matter of public concern.
In some cases, admittedly, the specific interests underlying the Pickering
balancing test may be too uncertain for an official’s entitlement to qualified
immunity to be resolved at that stage. In Navab-Safavi, for example, this Court
was unable to determine whether qualified immunity protected officials’
termination of a contractor’s employment with Voice of America after she
appeared in a music video protesting the United States’ involvement in the Iraq
War, where the contractor alleged that her only duties were to provide translation
and narration services, and she “exercised no editorial judgment, did not appear on
camera,” was never identified by name on the air, and “never purported to speak
on behalf of the Board or the United States.” 637 F.3d at 313, 317-318.
Furthermore, the plaintiff in Navab-Safavi alleged that her direct supervisors
praised her work and expressed no concerns that her appearance in the video

18

would compromise her effectiveness, see 650 F. Supp. 2d 40, 47-48 (D.D.C.
2009), but that other officials nevertheless terminated her contract because they
perceived the music video as “anti-American.” 637 F.3d at 314.
As this Court made clear in Navab-Safavi, however, the “relative weight of
the governmental interest * * * may often be quite evident from the pleadings,”
637 F.3d at 318, and a court may be able to determine that a defendant is entitled
to qualified immunity without an evidentiary showing of harm. Indeed, this Court
did precisely that in Hall v. Ford, affirming a dismissal on qualified immunity
grounds at the pleading stage, based on the nature of the employee’s job
responsibilities and the content and context of his speech. 856 F.2d at 261. Here,
as we have shown, the nature of the plaintiff’s position and job responsibilities,
the interest of CRS in maintaining its appearance of objectivity and lack of bias,
and the content and tone of the publications, establish that a reasonable officer
could think that the plaintiff’s termination was lawful.
The plaintiff also relies on several cases from other circuits to argue that a
defendant’s entitlement to qualified immunity cannot be resolved at the pleading
stage in a case involving the Pickering balancing test, Pl. Br. 22, 28, but each is
readily distinguishable. In Catletti ex rel. Estate of Catletti v. Rampe, 334 F.3d
225 (2d Cir. 2003), the defendants conceded that the employee’s testimony in a
19

judicial proceedings “did not adversely impact his [job] performance.” Id. at 231.
In Barker v. City of Del City, 215 F.3d 1134 (10th Cir. 2000), similarly, the
defendant never identified a governmental interest implicated by the employee’s
speech. 215 F.3d at 1139, 1140. In Vojvodich v. Lopez, 48 F.3d 879 (5th Cir.),
cert. denied, 516 U.S. 861 (1995), the defendant denied that the challenged
employment action was caused by the employee’s First Amendment activities, and
there was “simply no countervailing state interest to weigh.” Id. at 886. And in
Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997), neither the complaint itself nor
the nature of the speech demonstrated any government interest. Id. at 1018-1019.
No similar situation is presented here, where Mulhollan identified multiple
government interests that were directly threatened by the plaintiff’s speech and
conduct.
The plaintiff asserts that Mulhollan’s reasonable predictions of harm cannot
be considered, because the plaintiff’s complaint alleges that the publications did
not harm CRS. Pl. Br. 16, 21-22. The plaintiff’s conclusory allegations about the
purported lack of harm are entitled to be credited only to the extent they are
established through well-pled factual allegations. See Ashcroft v. Iqbal, 129 S. Ct.
1937, 1951 (2009). Here, the complaint, as well as the documents incorporated by
reference, establish the high-level nature of the plaintiff’s position and
20

responsibilities; the CRS’s special need to maintain its reputation for objectivity
and impartiality, as manifested in part through its policy on outside speaking and
writing; the plaintiff’s responsibility as head of a Division for complying with and
enforcing that policy; and the evident damage to working relationships caused by
his publications. In the face of these facts, the plaintiff’s assertion of a lack of
harm cannot defeat dismissal.
3.

The Plaintiff Has Not Shown That Mulhollan’s Conduct Was Clearly
Unlawful Under Existing Precedent.

As we explained in our opening brief, Mulhollan is entitled to qualified
immunity unless the constitutionality of his conduct was “beyond debate.” AlKidd, 131 S. Ct. at 2083. Citing Hope v. Pelzer, 536 U.S. 730 (2002), the plaintiff
asserts that there is no need for earlier decisions on materially similar facts in
order for qualified immunity to apply. Pl. Br. 27. That case, however, involved
the intentional hitching of a prisoner to a post, shirtless and exposed to the sun, for
seven hours, with no bathroom breaks and only limited water — conduct that the
Court deemed “so obvious” a constitutional violation that prior precedent might
not even be necessary, and that in any event was clearly unlawful under factually
similar cases and a Department of Justice study and report on the specific practice.
536 U.S. at 741-745.

21

The plaintiff also asserts that it is clearly established that “a public employer
cannot terminate [an employee] for speech on a matter of public concern unrelated
to his job duties when the speech has not harmed the employer sufficiently to
outweigh the First Amendment interests at stake.” Pl. Br. 29. The Supreme Court
has repeatedly held that it is erroneous to define “clearly established law” for
purposes of qualified immunity at that high level of generality. See Al-Kidd, 131
S. Ct. at 2084; Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Wilson v. Layne,
526 U.S. 603, 615 (1999); Anderson, 483 U.S. at 639-640. The plaintiff cites
Navab-Safavi, but this Court had not yet issued its decision at the time Mulhollan
terminated his employment. The district court decision in Navab-Safavi is not
sufficient to establish “a robust consensus of cases of persuasive authority.” AlKidd, 131 S. Ct. at 2084 (quotation marks and citation omitted). And in any event,
both the district court and this Court in Navab-Safavi recognized that the
government employer has an interest in restricting employee speech that damages
its reputation for objectivity. Navab-Safavi v. Broadcasting Board of Governors,
650 F. Supp. 2d 40, 60 (D.D.C. 2009); 637 F.3d at 317. The other cases relied on
by the plaintiff recite general legal principles in cases governed by the Pickering
balancing test, but fail to provide sufficient guidance about the application of

22

those principles to the facts of this case to support the conclusion that the
plaintiff’s claimed right was “clearly established.”
Finally, it is notable that the plaintiff does not even attempt to defend part of
the district court’s rationale for denying qualified immunity. Our opening brief
showed that the district court erred in relying on the plaintiff’s short-term
appointment as a special adviser to conclude that his publications did not damage
his relationship with Mulhollan. Mulhollan Br. 38-39. The district court also
erred in giving weight to the fact that Mulhollan asked the plaintiff to
acknowledge that his publications were not protected by the First Amendment.
Mulhollan Br. 39-40. By failing to respond to our arguments, the plaintiff
effectively concedes the district court’s error.
II.

THE PLAINTIFF HAS NOT SHOWN THAT MULHOLLAN
VIOLATED ANY CLEARLY ESTABLISHED DUE PROCESS
RIGHT.
We showed in the opening brief that the plaintiff has not shown that

Mulhollan violated any clearly established due process right. The plaintiff did not
have any protected interest in his probationary employment to support a due
process claim. Any alleged failure by CRS officials to enforce CRS’s policy in the
past did not bar the agency from sanctioning a particularly egregious subsequent
violation. And in any event, the plaintiff has not alleged sufficient personal
23

involvement by Mulhollan in the conduct that was alleged to give the plaintiff
inadequate notice to support personal liability.
The plaintiff challenges the well-established proposition that employees
must have a protected interest in continued employment in order to have a right to
prior notice before termination, but the cases he relies on do not support his
argument. In Keeffe v. Library of Congress, 777 F.2d 1573 (D.C. Cir. 1985), it
was undisputed that the employee had a protected property interest in continued
employment. See Mulhollan Br. 42. Most of the other cases involve restrictions
on liberty interests, such as criminal statutes or restrictions imposed on
incarcerated prisoners. See Bynum v. Capitol Police Bd., 93 F. Supp.2d 50, 58-59
(D.D.C. 2000); Wolfel v. Morris, 972 F.2d 712, 717 (6th Cir. 1992); Adams v.
Gunnell, 729 F.2d 362, 369 (5th Cir. 1984); see also Procunier v. Martinez, 416
U.S. 396, 418 (1974) (holding that prisoners have protected liberty interest in
receiving correspondence). Rankin, which the plaintiff also cites, did not involve
a due process challenge or recognize any due process rights. And Keyishian v.
Board of Regents, 385 U.S. 589, 604 (1967), involved only a facial challenge to a
statute and regulations, which were alleged to chill speech. Here, the argument is
not that the plaintiff’s speech was chilled, but that he engaged in speech and was
terminated from his probationary employment as a result. No case holds that an
24

employee in those circumstances has a protected interest in prior notice, or would
put a reasonable official on notice that the termination of the plaintiff’s
probationary employment could violate the Due Process Clause.
Furthermore, the district court specifically held — and the plaintiff has not
preserved a challenge to this holding on appeal, cf. Pl. Br. 40 n.10 (raising
argument only in a footnote) — that the CRS policy and the Library of Congress
regulation gave adequate notice to employees about their requirements and were
not unconstitutionally vague. Any unconstitutional lack of notice, therefore,
would have to arise from the conduct of officials in applying the policies. Apart
from the fact that officials’ failure to enforce a restriction in the past does not
estop them from doing so in the future, virtually none of the challenged conduct
involves Mulhollan himself.
The plaintiff argues that, so long as Mulhollan makes the final termination
decision, he is liable for any confusion or lack of clarity caused by other CRS
officials’ past conduct. Pl. Br. 41. But Mulhollan is entitled to qualified immunity
unless a reasonable officer in his circumstances — knowing only what he
knows — would understand that his decision to terminate the plaintiff was clearly
unlawful. See Anderson, 483 U.S. at 641. We argued in the district court that
Mulhollan had only limited involvement in the conduct that was alleged to give
25

rise to inadequate notice, and also argued that the plaintiff was improperly seeking
to hold Mulhollan liable for conduct that was attributable to CRS or the Library of
Congress as a whole. See Reply Memorandum 24-25, Dkt. 24 (filed Apr. 26,
2010). In denying qualified immunity on the due process claim, the district court
failed to distinguish between Mulhollan’s own conduct and that of other CRS
officials. Regardless of whether CRS could be found to have violated the Due
Process Clause through the collective conduct of its employees, Mulhollan may
not be held personally liable for an allegedly unconstitutional lack of prior notice
arising out of the conduct of third parties of which he is not even alleged to have
been aware. See Iqbal, 129 S. Ct. at 1948-1949.
III.

THE DISTRICT COURT ERRED IN RECOGNIZING AN IMPLIED
BIVENS CLAIM FOR THE PLAINTIFF TO CHALLENGE
MULHOLLAN’S TERMINATION OF HIS PROBATIONARY
EMPLOYMENT.
The plaintiff also fails to show that his claims against Mulhollan should be

recognized as valid under Bivens. Reduced to its essence, the plaintiff’s argument
is that he should have a right to challenge the termination of his probationary
employment in a claim for money damages, despite the fact that Congress has
denied that right to virtually all other federal employees under the CSRA, and has
specifically and repeatedly considered what rights of judicial review should be

26

available to Library of Congress employees to challenge adverse employment
actions but has chosen not to provide a statutory remedy for the type of harm
asserted here.
The plaintiff argues that, unless he can bring a Bivens claim against
Mulhollan, he will not have any judicial or administrative forum in which to
challenge the termination of his probationary employment. Pl. Br. 43, 48, 53-54.
It is undisputed, however, that the plaintiff may bring a constitutional claim for
injunctive relief against the Library of Congress. Indeed, he brought such a claim
in this case. The plaintiff is wrong to suggest that his only avenue for relief is a
damages action, and that “constitutional considerations” therefore require an
implied remedy. Pl. Br. 54. We are aware of no case holding that the Constitution
must be vindicated not only through an injunctive action, but also through an
action against an individual defendant for retrospective money damages.
Furthermore, in arguing for a Bivens remedy, the plaintiff essentially
ignores the fact that he seeks a right that Congress has specifically denied to other
federal employees under the CSRA — i.e., relief for the assertedly unlawful
termination of probationary employment. Cf. Pl. Br. 48 n.14 (arguing in a footnote
that the plaintiff’s probationary status is “irrelevant”). The plaintiff asks this
Court to hold that, although Congress explicitly denied a right of review under the
27

CSRA to employees terminated within their initial one-year period of
appointment, see 5 U.S.C. §§ 4303(f)(3), 7511(a)(1), Congress nevertheless
intended for courts to create a common-law damages remedy for the employees of
some federal agencies to challenge the same type of employment action. That
inference is implausible.
As for the plaintiff’s argument that employees of the Library of Congress
are outside the scope of the CSRA altogether, it is erroneous. Library of Congress
employees are within the statutory class of “excepted service” employees, and they
also have certain collective bargaining rights under the statute. See 5 U.S.C.
§§ 2101(1), 7103(a)(3). Furthermore, Congress subsequently considered what
rights of review to challenge adverse employment actions should be available to
Library of Congress employees, and provided for expanded remedies for certain
types of employment-related harms in the CAA. Congress did not, however,
create a right of judicial review for Library of Congress employees who
challenged the termination of their employment in alleged violation of the First
Amendment or Due Process Clause. Instead, Congress left Library of Congress
employees to the review rights afforded by governing regulations — regulations
that, like the CSRA, do not permit probationary employees to challenge their
termination. See Mulhollan Br. 58.
28

Ultimately, the plaintiff’s argument is that, because any relief he may seek
in an injunctive action will not compensate him fully for his past harm, and
because no additional relief is available to him under the CSRA or the CAA, he
must be entitled to bring a Bivens action. Pl. Br. 55-56. As this Court held en
banc in Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988), the fact that possible
remedies may not be available to a plaintiff or may not fully compensate the
plaintiff for his injury does not demonstrate than an implied Bivens remedy is
appropriate. See id. at 225, 228-29. “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.” Wilson v. Libby, 535 F.3d 697, 709-710 (D.C.
Cir. 2008), cert. denied, 129 S. Ct. 2825 (2009); see also United States v. Fausto,
484 U.S. 439, 454-455 (1988) (applying similar analysis to conclude that
Congress’ decision not to provide a remedy for wrongful suspension in the CSRA
precludes a Back Pay Act claim for that relief). The plaintiff is simply wrong to
assert that those decisions are limited to instances where the statutory scheme at
issue provides at least some remedy to the plaintiff for the harm alleged. See, e.g.,
Wilson, 535 F.3d at 701-702 (holding that Bivens claim was not valid despite the
fact that one plaintiff had no valid claim under the Privacy Act and the second
plaintiff could seek relief for only one of four allegedly wrongful disclosures);
29

Spagnola, 859 F.2d at 228-289 (rejecting Bivens claim to challenge failure to hire
and promote the plaintiffs in alleged retaliation for their speech, for which no right
of judicial review was available); Kotarski v. Cooper, 866 F.3d 311, 312 (9th Cir.
1989).
The nature of the statutory scheme in this case, and the evidence that
Congress intentionally excluded Library of Congress employees from the remedial
provisions of the CSRA and provided only limited additional remedies under the
CAA, distinguish this case from the decisions that the plaintiff relies upon. In
Davis v. Passman, 442 U.S. 228 (1979), no equitable, administrative, or other
relief was available to the plaintiff, and there was also no evidence that, in
enacting Title VII to provide a mechanism by which some government employees
could challenge discriminatory employment actions, Congress intended to
foreclose other remedies. Id. at 245, 247. Here, in contrast, the CSRA and CAA
provide clear evidence of Congress’ intent to foreclose other remedies for adverse
employment actions, and a suit for injunctive relief is available directly against the
Library of Congress.
Similarly, in Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d
1405 (D.C. Cir. 1985), this Court held that constitutional claims brought by an
employee organization, which alleged that the Library of Congress had punished
30

the organization and its members for constitutionally protected criticisms of
agency policy, were not barred by Title VII. But the Library of Congress has
conceded that a constitutional claim is available against it for injunctive relief, and
Ethnic Employees did not address whether a supplemental damages remedy would
also be available against individual officials. Furthermore, the harm in Ethnic
Employees, alleged retaliation for protected speech in violation of the First
Amendment, was unrelated to the unlawful discrimination governed by Title VII.
Here, in contrast, the nature of the alleged wrongdoing — adverse employment
action in response to an employee’s public speech assertedly protected by the First
Amendment — is among the types of harms intended by Congress to be governed
by the CSRA. See Bush v. Lucas, 462 U.S. 367, 380-390 (1983).
Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002), also relied on by the
plaintiff, is even further afield. The government action that gave rise to the claim
in that case — the warrantless search of an employee’s office — was not within
the universe of “personnel actions” governed by the CSRA’s remedial scheme.
See id. at 1129-1130. And Navab-Safavi, 650 F. Supp. 2d 40, merely held that the
exclusive statutory channeling provision for contract disputes, which was limited
on its face to claims “relating to a contract,” did not apply to a claim that did not
seek enforcement of the contract but instead challenged its termination as
31

unconstitutionally motivated. Id. at 66-67. None of these decisions undermines
the basic point that the district court erred in recognizing a Bivens claim to seek
money damages for a type of adverse employment action for which Congress
deliberately denied federal employees a right of judicial review.

32

CONCLUSION
For the foregoing reasons and the reasons set forth in our opening brief, this
Court should vacate the order of the district court and should remand the case with
instructions to dismiss the claims against the individual defendant, Daniel P.
Mulhollan.
Respectfully submitted,

TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.
United States Attorney
THOMAS M. BONDY
[phone]
/s/ Sharon Swingle
SHARON SWINGLE
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7250
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

SEPTEMBER 2011

33

CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
I hereby certify that this brief complies with the type-volume limitation of
Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief contains 6,819
words, excluding the parts of the brief exempted by Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii). This brief complies with the typeface requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the typestyle requirements of
Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared with
Word Perfect 12 in a proportional typeface with 14 characters per inch in Times
New Roman.

/s/ Sharon Swingle
Sharon Swingle
Counsel for Appellant

CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Reply Brief for DefendantAppellant were filed on the following counsel by electronic service through the
CM/ECF system and by regular mail, postage prepaid, on September 16, 2011:
Frederick V. Mulhauser
American Civil Liberties Union of the National Capital Area
1400 20th Street, NW
Suite 119
Washington, DC 20036-5920
Direct: 202-457-0800
Email: [e-mail]
Arthur Barry Spitzer
American Civil Liberties Union of the National Capital Area
1400 20th Street, NW
Suite 119
Washington, DC 20036-5920
Firm: 202-457-0800
Email: [e-mail]
Aden J. Fine
American Civil Liberties Union
125 Broad Street
18th Floor
New York, NY 10004-2400
Firm: 212-549-2607
Direct: 212-549-2693
Email: [e-mail]

/s/ Sharon Swingle
Sharon Swingle
Counsel for Defendant-Appellant