Davis v. Billington, 775 F. Supp. 2d 23

Davis, a former Air Force Colonel and Chief Prosecutor for the DoD Office of Military Commissions, resigned in 2007 and became a vocal critic of the Guantanamo military commissions.
In December 2008, Library of Congress hired Davis as Assistant Director of the CRS’s Foreign Affairs, Defense and Trade Division; CRS is the Library’s public policy research arm.
Davis alleges he had no authority to set policy and that his division did not handle military-commission issues; his public writings concerned military commissions, not his CRS duties.
On November 11, 2009, Davis published two opinion pieces in WSJ and WP reflecting his views on Guantanamo, authored at home, with no compensation.
Mulhollan, CRS Director, terminated Davis’s probationary status and later separated him from CRS after admonishment following the articles; Davis filed suit January 8, 2010, alleging First and Fifth Amendment violations.
Regulations: Library of Congress Regulation 2023-3 and CRS policy require outside speech to be clearly identified as personal views and to avoid harming the Library’s objectivity; Davis contends these provisions were applied unconstitutionally.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bivens claims against Mulhollan in his individual capacity are precluded by CSRA/“special factors”.	CSRA omitted relief for non-executive barriers; Davis should recover damages.	CSRA provides the exclusive remedy; Bivens barred or precluded.	Bivens claims allowed; no proper special-factor preclusion.
Whether Davis’s First Amendment retaliation claim survives under Pickering/Hall.	Speech addressed public concerns and was not related to CRS duties; protected.	Speech could disrupt CRS operations; government interest outweighed speech.	Plaintiff’s First Amendment claim plausibly stated; balance tips in plaintiff’s favor.
Whether the Fifth Amendment vagueness challenge to the Library/CRS outside-speech regulation is viable as facial or as applied.	Regulation applied in a way that deprived fair notice; prior approval history irrelevant.	Regulation facially clear; no vagueness.	Regulation facially valid but applied unconstitutionally to the plaintiff.
Whether Mulhollan is entitled to qualified immunity on the First and Fifth Amendment claims.	rights were clearly established; Mulhollan knew or should have known.	rights not clearly established; no precedent.	Qualified immunity denied; rights clearly established.

Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public employee speech protected on public-interest issues; Pickering balance used)
Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (policy-related public employee speech balanced against employer efficiency)
Rankin v. McPherson, 483 U.S. 378 (U.S. 1987) (employer interest in functioning; speech-related protection depends on context)
Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (government speech restrictions depend on the employee’s role)
Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-step framework for qualified immunity (modified by Pearson))
Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (reaffirms flexible approach to qualified-immunity analysis; not mandatory sequencing)
Bush v. Lucas, 462 U.S. 367 (U.S. 1983) (dismisses Bivens where comprehensive statutory relief exists)
Chilicky v. Schweiker, 487 U.S. 412 (U.S. 1988) (review of complete statutory scheme before providing damages remedy)
Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (CSRA may provide meaningful remedy; complete absence of remedy can permit Bivens)
Navab-Safavi v. Board of Governors, 650 F. Supp. 2d 40 (D.D.C. 2009) (discusses CSRA remedies and Bivens under comprehensive schemes)
Keeffe v. Library of Congress, 777 F.2d 1573 (D.C. Cir. 1985) (fair notice required when regulation interpreted as prohibition on outside activity)