Former Guantanamo Prosecutor Loses Appeal

The D.C. Circuit today handed down a decision in a civil case concerning Col. Morris Davis, once the Chief Prosecutor in the Office of Military Commissions.  Davis had sued in district court, advancing (among other things) Bivens claims against his former supervisor at the Congressional Research Service ("CRS"), where Davis had worked after his service at Guantanamo.  The plaintiff argued that his firing by CRS had violated his First and Fifth Amendment rights.  (He had written an op-ed criticizing the Obama Administration's decision to try some terrorism suspects in federal courts, but others in military commissions.  The piece's publication allegedly lead CRS to terminate Davis' employment there.)  The district court denied a motion to dismiss.  But the court of appeals today overturned that decision and returned the case to the trial court, with instructions to dismiss Davis' Bivens claims.  Writing for two of the panel's three judges, Chief Judge David Sentelle's majority opinion concludes that, in light of federal civil service laws, Davis cannot bring a Bivens action against his supervisor.  Judge Rodgers disagreed and filed a dissenting opinion.  Rejection of the Bivens claims does not appear to end the case: Davis also brought other claims against the CRS director in his official capacity, and these seemingly were not affected by today's ruling.   Over at the Volokh Conspiracy, Jonathan Adler has posted some commentary on the case.