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Davis v. Billington 11-5092

Davis v. Billington 11-5092

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Published by: FedSmith, Inc. on Jun 10, 2012
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2011Decided June 1, 2012No. 11-5092M
ORRIS
D.
 
D
AVIS
,A
PPELLEE
v.J
AMES
H.
 
B
ILLINGTON
,
IN HIS OFFICIAL CAPACITY AS THE
L
IBRARIAN OF
C
ONGRESS
,A
PPELLEE
D
ANIEL
P.
 
M
ULHOLLAN
,
IN HIS INDIVIDUAL CAPACITY
,A
PPELLANT
Appeal from the United States District Courtfor the District of Columbia(No. 1:10-cv-00036)
Sharon Swingle
, Attorney, U.S. Department of Justice,argued the cause for appellant. With her on the briefs were
TonyWest 
, Assistant Attorney General,
 Ronald C. Machen Jr.
, U.S.Attorney, and
Thomas M. Bondy
, Attorney.
 Aden J. Fine
argued the cause for appellee. With him onthe brief were
 Alexander A. Abdo
,
 Arthur B. Spitzer 
,
and Frederick V. Mulhauser 
.
 
2
 Louis Fisher 
and
 Morton Rosenberg
, appearing pro se, wereon the brief as
amici curiae
Dr. Louis Fisher and MortonRosenberg in support of appellee.Before: S
ENTELLE
,
Chief Judge
, H
ENDERSON
and R
OGERS
,
Circuit Judges
.Opinion for the Court filed by
Chief Judge
S
ENTELLE
.Dissenting opinion filed by
Circuit Judge
R
OGERS
.S
ENTELLE
,
Chief Judge
: Appellee, a former employee of the Library of Congress, brought this action against,
inter alia
,his former supervisor, Daniel Mulhollan, alleging that histermination for publication of articles critical of high-levelpublic officials violated the First and Fifth Amendments of theConstitution and entitled him to damages relief under
 Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics
,403 U.S. 388 (1971). Appellant Mulhollan moved to dismiss,arguing that a
 Bivens
action is not available under thecircumstances of this case and that he is entitled to qualifiedimmunity. The district court denied the motion to dismiss, andMulhollan filed the current appeal. Because we conclude thatthe courts should not imply a new form of 
 Bivens
action on thefacts of this case, we reverse the order of the district courtdenying dismissal.
I. Background
Upon review of a district court’s ruling on a motion todismiss, we, like the district court, accept as true the well-pleaded factual allegations of the complaint.
Sparrow v. United  Air Lines, Inc.
, 216 F.3d 1111, 1113 (D.C. Cir. 2000).Therefore, the following recitation of facts implies no decisionon our part as to the accuracy of the allegations. In December
 
32008, the Congressional Research Service (CRS), the public-policy-research arm of Congress and a department of the Libraryof Congress, hired appellee Davis as Assistant Director of itsForeign Affairs, Defense, and Trade Division subject to amandatory, one-year probationary period. That divisionprovides research and analytical services to congressionalcommittees responsible for foreign affairs; international tradeand finance; defense policy and arms control; and defensebudget, manpower, and management. As Assistant Director,Davis was responsible for leading, planning, directing, andevaluating the research and analytical activities of the division.During his tenure as Assistant Director, Davis publiclycriticized the system of military commissions created toprosecute suspected terrorists held at Guantanamo Bay NavalBase, Cuba, a system with which he had become familiar whileserving as Chief Prosecutor there until October 2007. Whileemployed by CRS, Davis voiced his criticisms of the system ata Human Rights Watch dinner, in a BBC documentary, at aconference at Case Western Reserve University Law School,and in a law review article in connection with the conference.He also spoke about his views at a Lawyers Association of Kansas City meeting after accepting an award for speaking outagainst what he characterized as the politicization of themilitary-commissions system.On November 11, 2009, as Davis’s probationary yearneared its end, he published opinion pieces in both the WallStreet Journal and the Washington Post criticizing AttorneyGeneral Eric Holder and the Obama administration for choosingto prosecute some Guantanamo detainees in federal courts andothers in military commissions. Davis called this decision “amistake” and “double-standard justice” that “we would condemnif … applied to us.” The Post piece challenged the contentionof former Attorney General Michael Mukasey that “the decision

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