`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued November 10, 2011
`
`Decided June 1, 2012
`
`No. 11-5092
`
`MORRIS D. DAVIS,
`APPELLEE
`
`v.
`
`JAMES H. BILLINGTON, IN HIS OFFICIAL CAPACITY AS THE
`LIBRARIAN OF CONGRESS,
`APPELLEE
`
`DANIEL P. MULHOLLAN, IN HIS INDIVIDUAL CAPACITY,
`APPELLANT
`
`Appeal from the United States District Court
`for 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 Tony
`West, 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 on
`the brief were Alexander A. Abdo, Arthur B. Spitzer, and
`Frederick V. Mulhauser.
`
`
`
`2
`
`Louis Fisher and Morton Rosenberg, appearing pro se, were
`on the brief as amici curiae Dr. Louis Fisher and Morton
`Rosenberg in support of appellee.
`
`Before: SENTELLE, Chief Judge, HENDERSON and ROGERS,
`Circuit Judges.
`
`Opinion for the Court filed by Chief Judge SENTELLE.
`
`Dissenting opinion filed by Circuit Judge ROGERS.
`
`SENTELLE, Chief Judge: Appellee, a former employee of
`the Library of Congress, brought this action against, inter alia,
`his former supervisor, Daniel Mulhollan, alleging that his
`termination for publication of articles critical of high-level
`public officials violated the First and Fifth Amendments of the
`Constitution 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 the
`circumstances of this case and that he is entitled to qualified
`immunity. The district court denied the motion to dismiss, and
`Mulhollan filed the current appeal. Because we conclude that
`the courts should not imply a new form of Bivens action on the
`facts of this case, we reverse the order of the district court
`denying dismissal.
`
`I. Background
`
`Upon review of a district court’s ruling on a motion to
`dismiss, 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 decision
`on our part as to the accuracy of the allegations. In December
`
`
`
`3
`
`2008, the Congressional Research Service (CRS), the public-
`policy-research arm of Congress and a department of the Library
`of Congress, hired appellee Davis as Assistant Director of its
`Foreign Affairs, Defense, and Trade Division subject to a
`mandatory, one-year probationary period. That division
`provides research and analytical services to congressional
`committees responsible for foreign affairs; international trade
`and finance; defense policy and arms control; and defense
`budget, manpower, and management. As Assistant Director,
`Davis was responsible for leading, planning, directing, and
`evaluating the research and analytical activities of the division.
`
`During his tenure as Assistant Director, Davis publicly
`criticized the system of military commissions created to
`prosecute suspected terrorists held at Guantanamo Bay Naval
`Base, Cuba, a system with which he had become familiar while
`serving as Chief Prosecutor there until October 2007. While
`employed by CRS, Davis voiced his criticisms of the system at
`a Human Rights Watch dinner, in a BBC documentary, at a
`conference 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 out
`against what he characterized as the politicization of the
`military-commissions system.
`
`On November 11, 2009, as Davis’s probationary year
`neared its end, he published opinion pieces in both the Wall
`Street Journal and the Washington Post criticizing Attorney
`General Eric Holder and the Obama administration for choosing
`to prosecute some Guantanamo detainees in federal courts and
`others in military commissions. Davis called this decision “a
`mistake” and “double-standard justice” that “we would condemn
`if … applied to us.” The Post piece challenged the contention
`of former Attorney General Michael Mukasey that “the decision
`
`
`
`4
`
`to try Guantanamo detainees in federal courts comes down to a
`choice between protecting the American people and showcasing
`American justice.” Davis wrote that Mukasey’s statement,
`which expressed concern for the security of people where
`detainees would be tried, was “fear-mongering worthy of former
`vice president Dick Cheney.” Neither editorial included a
`disclaimer that it represented Davis’s personal views and not
`those of CRS or the Library of Congress.
`
`The evening before the publication of the two opinion
`pieces, Davis e-mailed appellant Mulhollan, the Director of
`CRS, and informed him of the impending publication of the two
`opinion pieces. Mulhollan responded by e-mail, questioning
`Davis’s judgment and his ability to continue serving as Assistant
`Director. After the pieces were published, Mulhollan told Davis
`that the opinion pieces damaged Davis’s ability to lead his
`division in providing objective, nonpartisan analysis. He also
`asked how members of Congress could trust Davis’s leadership
`on military-commissions issues given his public opposition to
`current policy; how Republicans would view his objectivity after
`his attack on Dick Cheney; and how Davis could properly
`counsel employees who failed to comply with the CRS outside-
`speech policy, which Mulhollan believed Davis had violated.
`On November 20, 2009, Mulhollan notified Davis that he would
`be removed from his probationary appointment as Assistant
`Director. Mulhollan provided Davis with a thirty-day
`appointment as Mulhollan’s special advisor to provide time to
`look for other employment, after which time Davis was
`separated from CRS.
`
`Davis then filed the current action against appellant, as well
`as James Billington, the Librarian of Congress, seeking
`declaratory and injunctive relief, and seeking damages against
`Mulhollan for violation of his constitutional rights under the
`First and Fifth Amendments, asking the court to imply a remedy
`
`
`
`5
`
`under Bivens. Mulhollan moved to dismiss, both on the basis of
`qualified immunity and on the theory that the court should not
`imply a Bivens remedy for the discharge of a civil-service
`employee. Because we agree that there is no available Bivens
`remedy, we will not reach the question of qualified immunity
`but will reverse the district court’s denial of the motion to
`dismiss.
`
`II. Analysis
`
`We have jurisdiction under 28 U.S.C. § 1291 and the
`collateral order doctrine. It is a well-established application of
`that doctrine that “a district court’s denial of a claim of qualified
`immunity, to the extent that it turns on an issue of law, is an
`appealable ‘final decision’ within the meaning of 28 U.S.C.
`§ 1291 notwithstanding the absence of a final judgment.”
`Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Because the
`defense of qualified immunity from a Bivens damages action
`“directly implicate[s]” the antecedent question whether to
`recognize that Bivens action at all, our jurisdiction extends to
`that question as well. See Wilkie v. Robbins, 551 U.S. 537, 549
`& n.4 (2007) (internal quotation marks omitted). We review the
`district court’s legal conclusions de novo. Wilson v. Libby, 535
`F.3d 697, 704 (D.C. Cir. 2008).
`
`A.
`
`In Bivens, the Supreme Court determined that under
`appropriate circumstances the federal courts possess the
`discretion to create remedial actions against federal officials for
`violations of constitutional rights, even though Congress has not
`expressly authorized those specific remedies by statute. See
`Bush v. Lucas, 462 U.S. 367, 373–74 (1983). Beginning with
`Bivens, the Supreme Court has drawn upon this power in three
`instances to create a nonstatutory action for money damages
`
`
`
`6
`
`against federal officials for constitutional violations. See
`Bivens, 403 U.S. 388 (Fourth Amendment violation by federal
`agents); Davis v. Passman, 442 U.S. 228 (1979) (employment
`discrimination in violation of the Due Process Clause); Carlson
`v. Green, 446 U.S. 14 (1980) (Eighth Amendment violations by
`prison officials).
`
`For the most part, though, the Court has “responded
`cautiously” to requests for new “Bivens” remedies. Schweiker
`v. Chilicky, 487 U.S. 412, 421 (1988). The decision whether to
`recognize a new damages remedy is not about ensuring that
`every violation of a constitutional right is vindicated. Rather,
`the Bivens inquiry is a “judgment about the best way to
`implement a constitutional guarantee.” Robbins, 551 U.S. at
`550. As the Supreme Court has made clear, in most instances
`the judgment has been that Congress, not the judicial branch, is
`in the best position to prescribe the scope of relief available for
`the violation of a constitutional right. The Supreme Court has
`applied this analysis in a context paralleling the facts before us.
`Specifically, the Court in Robbins stated: “We have accordingly
`held against applying the Bivens model to claims of First
`Amendment violations by federal employers . . . .” 551 U.S. at
`562 (citing Bush, 462 U.S. 367); see also Chappell v. Wallace,
`462 U.S. 296 (1983); United States v. Stanley, 483 U.S. 669
`(1987); Chilicky, 487 U.S. 412. In explaining its reluctance to
`create new causes of action for federal employees alleging
`violation of their constitutional rights, the Supreme Court
`recognized that “Congress is in a far better position than a court
`to evaluate the impact of a new species of litigation between
`federal employees on the efficiency of the civil service.” Bush,
`462 U.S. at 389. The Court further explained that Congress has
`“developed considerable
`familiarity with balancing
`governmental efficiency and the rights of employees,” and that
`“it also may inform itself through factfinding procedures such as
`hearings that are not available to the courts.” Id.
`
`
`
`7
`
`In keeping with the Supreme Court’s recognition of
`Congress’s primary role, we have held that the courts will not
`imply a Bivens remedy where Congress has adopted a
`“comprehensive remedial scheme.” Wilson, 535 F.3d at 705. In
`Wilson, we followed the approach established by the Supreme
`Court in Bush v. Lucas, a case in which a NASA rocket scientist
`sought damages for First Amendment violations based on an
`alleged retaliatory demotion. The Court held that the statutory
`scheme governing federal civil-service employees—“an
`elaborate remedial system that has been constructed step by step,
`with careful attention
`to conflicting policy
`considerations”—qualified as a special factor that precluded
`creation of a Bivens remedy for violations of a federal
`employee’s First Amendment rights. Bush, 462 U.S. at 388–89.
`Although the existing scheme did not afford complete relief to
`the plaintiff, the scope of relief Congress chose to implement in
`that system reflected a congressional policy judgment “informed
`by a thorough understanding of the existing regulatory structure
`and the respective costs and benefits that would result from the
`addition of another remedy” to the civil-service system. Id. at
`388. Recognizing that “Congress is in a far better position than
`a court” to make that policy judgment, the Court “decline[d] to
`create a new substantive legal liability without legislative aid
`and as at the common law.” Id. at 389–90 (internal quotation
`marks and citations omitted). In declining to fashion a new
`Bivens remedy, the Court in Bush explained that the relevant
`question about a comprehensive remedial scheme for purposes
`of special-factors analysis—whether the scheme represents an
`informed congressional judgment about what relief should be
`available—“cannot be answered simply by noting that existing
`remedies do not provide complete relief for the plaintiff.” Id. at
`388.
`
`
`
`8
`
`The Court again dealt with the topic of a comprehensive
`scheme constituting a special factor in a Bivens analysis in
`Schweiker v. Chilicky. In Chilicky, the Court made it even
`clearer that whether the scheme affords a plaintiff relief for his
`specific injuries is not determinative of this inquiry. The
`plaintiffs in Chilicky sought money damages against state and
`federal officials for violations of their due process rights that
`resulted in the termination of the plaintiffs’ Social Security
`disability benefits. The Social Security Act provided no
`separate remedy for unconstitutional conduct that leads to the
`wrongful denial of benefits. Yet the Court declined to create a
`Bivens remedy to relieve these unredressed injuries, discerning
`no relevant distinction between the civil-service system in Bush
`and the Social Security Act’s remedial scheme. Chilicky, 487
`U.S. at 424–25. Indeed, “The absence of statutory relief for a
`constitutional violation . . . does not by any means necessarily
`imply that courts should award money damages against the
`officers responsible for the violation.” Id. at 421–22. To the
`contrary, so long as “the design of a Government program
`suggests that Congress has provided what it considers adequate
`remedial mechanisms for constitutional violations that may
`occur in the course of its administration,” the Court would not
`add a Bivens remedy to the mix. Id. at 423. Again, deference to
`the informed judgment of Congress was the key: “Congress is
`the body charged with making the inevitable compromises
`required in the design of a massive and complex welfare benefits
`program,” and it fulfilled that charge. Id. at 429. Congress’s
`choice to leave the remedy sought by the plaintiffs out of that
`complex program was not a legal basis for judicially revising
`Congress’s considered policy judgment. Id.
`
`In Wilson, as we had earlier done in Spagnola v. Mathis,
`859 F.2d 223 (D.C. Cir. 1988), we applied the Supreme Court’s
`precedents from Chilicky and Bush. Although in both Wilson
`and Spagnola the comprehensive remedial scheme did not
`
`
`
`9
`
`provide the relief the plaintiff was seeking, “it is the
`comprehensiveness of the statutory scheme involved, not the
`‘adequacy’ of specific remedies extended thereunder, that
`counsels judicial abstention.” Spagnola, 859 F.2d at 227. At
`bottom, then, “courts must withhold their power to fashion
`damages remedies when Congress has put in place a
`comprehensive system to administer public rights, has ‘not
`inadvertently’ omitted damages remedies for certain claimants,
`and has not plainly expressed an intention that the courts
`preserve Bivens remedies.” Id. at 228. The presence of these
`indicia of an informed congressional judgment is sufficient to
`stay the judiciary’s hand in favor of Congress’s decision.
`Because the CSRA met these requirements, the Spagnola Court
`held that “the creation of a Bivens remedy for civil service
`employees and applicants who advance constitutional challenges
`to federal personnel actions,” id. at 230, was foreclosed, even
`though the remedies available to the plaintiffs were “not so
`complete,” id. at 226.
`
`Wilson v. Libby explicitly rejected the notion that a
`comprehensive scheme must include some remedy for the
`plaintiff before the scheme can constitute a special factor that
`precludes creation of a Bivens remedy. A CIA employee,
`Valerie Plame Wilson, and her husband, Joseph Wilson, brought
`a Bivens action against then-Vice President Cheney, his Chief of
`Staff, and the President’s Deputy Chief of Staff based on alleged
`improper disclosure of information by those individuals. The
`disclosure blew Mrs. Wilson’s cover as a CIA operative. The
`Wilsons alleged a violation of Mr. Wilson’s free speech rights
`based on retaliatory disclosure of the information; violations of
`both his and Mrs. Wilson’s equal protection rights; a violation
`of her right to privacy based on the public disclosure of her
`personal information; and a violation of her Fifth Amendment
`property rights based on the disclosure’s effective elimination of
`her position through destruction of its secrecy.
`
`
`
`10
`
`None of these claims were cognizable under the Privacy
`Act. Mrs. Wilson’s claims were barred by the Privacy Act’s
`exemption of
`the Offices of
`the President and Vice
`President—which included the three defendants—from its
`coverage. The Act provided Mr. Wilson with no relief at all;
`only the person whose records are actually disclosed may bring
`a claim under the Privacy Act. Still, we declined to create a
`Bivens remedy for these alleged constitutional violations. We
`first pointed out that the Wilsons’ contention that they had no
`possibility of relief was inaccurate because Mrs. Wilson had a
`possible claim against the Deputy Secretary of State. Even if
`they were correct that the Act provided at least Mr. Wilson with
`no relief whatsoever, they were incorrect to “focus on the
`necessity of a remedy at all.” Wilson, 535 F.3d at 709. We
`reiterated that “[t]he 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.” Id. Instead,
`the correct inquiry continues to be the one put forth in Bush:
`“the question of who should decide whether such a remedy
`should be provided.” Id. (citing Bush, 462 U.S. at 380 (internal
`quotation marks omitted)). Deference to Congress to make that
`decision is “especially due” when it “intentionally withheld” a
`remedy, which shows “the considered judgment of Congress
`that certain remedies are not warranted.” Id. That deference is
`owed “whether Congress has chosen to exclude a remedy for
`particular claims, as in Bush and Chilicky, or from particular
`defendants,” as was the case in Wilson. Id.
`
`B.
`
`1.
`
`The primary question before us in this case then is whether
`the CSRA is a “comprehensive remedial scheme,” i.e., a scheme
`
`
`
`11
`
`that reflects a considered congressional judgment about which
`remedies should be available for claims that fall within its ambit.
`It qualifies as such “when Congress has put in place a
`comprehensive system to administer public rights, has ‘not
`inadvertently’ omitted damages remedies for certain claimants,
`and has not plainly expressed an intention that the courts
`preserve Bivens remedies.” Spagnola, 859 F.2d at 228. That
`being established, we give “appropriate judicial deference” to
`Congress’s judgment on the matter, treating the comprehensive
`scheme as a special factor that precludes the creation of a Bivens
`remedy. Chilicky, 487 U.S. at 423.
`
`No one contests that the CSRA is a “comprehensive system
`to administer public rights.” Davis admits this much, and
`indeed, that conclusion was necessary to this court’s holding in
`Spagnola that the CSRA was a special factor precluding the
`creation of a Bivens remedy for the plaintiffs in that case. See
`Spagnola, 859 F.2d at 228; see also Bush, 462 U.S. at 385–86.
`Nor has Congress provided any suggestion, much less a “plainly
`expressed” intent, that Bivens remedies should be preserved for
`claimants in Davis’s shoes.
`
`Further, Congress’s choice to omit damages remedies for
`claimants in Davis’s posture was a deliberate one—or as we
`have put it before, Congress has “not inadvertently” omitted
`these damages remedies. A review of the CSRA’s remedial
`scheme as it relates to Davis and most other civil-service
`members not employed by an agency under the executive branch
`for purposes of the CSRA makes it clear that their general
`excision from the remedial protections available through that
`scheme was in fact conscious and “not inadvertent.”
`
`The CSRA defines the “civil service” as “all appointive
`positions” in all three branches of government. 5 U.S.C. § 2101.
`The civil service is then divided into three categories: the Senior
`
`
`
`12
`
`Executive Service, the competitive service, and the excepted
`service. The Senior Executive Service includes certain high-
`level executive positions. See id. § 3132(a)(2). The competitive
`service, generally speaking, includes “all civil service positions
`in the executive branch,” excluding positions that require Senate
`confirmation and those Congress specifically excludes by
`statute. Id. § 2102. It also includes positions in certain named
`categories if Congress specifically includes any particular
`positions in those categories by statute. Id. Finally, the
`excepted service contains the remainder of the civil-service
`positions—those positions not in the competitive service or the
`Senior Executive Service. Id. § 2103.
`
`Congress plainly included employees in Davis’s former
`position in the “civil service” as defined by the CSRA. Davis
`was an appointed employee with CRS, part of the Library of
`Congress. The Library of Congress is not in the executive
`branch for purposes of § 2102, nor are Library of Congress
`employees specifically included in the competitive service by
`statute. Therefore, within the CSRA’s definitional structure,
`Davis was a member of the excepted service.
`
`Congress deliberately included Library of Congress
`employees in the “civil service” governed by the CSRA. Then,
`just as deliberately, Congress chose to limit the beneficiaries of
`the CSRA’s remedial protections in large part to non-
`probationary employees in the executive branch. Specifically,
`three chapters of the CSRA govern personnel actions taken
`against civil-service employees and the remedies available to
`those employees. With only inconsequential exceptions, none
`of them provide procedural rights or remedial measures for
`civil-service employees of non-Executive agencies, which
`include the Library of Congress. Moreover, the primary set of
`protections against arbitrary adverse employment actions,
`contained in Chapter 75, is not available to employees who are
`
`
`
`13
`
`on probationary status. This leaves Davis, an employee of the
`Library of Congress on probationary status, without recourse
`under the CSRA for adverse actions taken against him.
`
`In each of the three CSRA chapters governing personnel
`actions, the unambiguous language Congress used to delineate
`which civil-service employees would be eligible for the remedial
`protections provided demonstrates that the exclusion of
`probationary and CRS employees was deliberate. First, under
`Chapter 43, Congress provided procedural protections and rights
`of appeal in the context of performance reviews to “employees,”
`which are defined in Chapter 43 as individuals “employed in or
`under an ‘agency.’” Id. § 4301(2). “Agency” is in turn defined
`in Chapter 43 as “an Executive agency” and the Government
`Printing Office (GPO), excluding certain entities not pertinent
`here. Id. § 4301(1). These definitions reflect an intentional
`choice to leave civil-service members not employed by the
`statutorily referenced Executive agencies—including employees
`of CRS, see id. § 7103(a)(3) (listing the Library of Congress
`separately from “Executive agency”)—ineligible for these
`remedial protections.
`
`Chapter 75 of the CSRA, which governs adverse actions
`taken against civil-service employees for the “efficiency of the
`service,” excises probationary and non-Executive agency
`employees from its procedural protections in similar fashion.
`The protections available to civil-service members for minor
`adverse actions (suspensions shorter than 14 days) are limited to
`“employees,” which are defined as
`individuals
`in
`the
`competitive service not on probationary status. Id. § 7501(1).
`The protections against major adverse actions (removal, longer
`suspensions, pay or grade reduction, or furlough) are also
`limited to “employees,” which are defined more broadly under
`that subsection as (A) members of the competitive service not on
`probationary status; (B) preference-eligible members of the
`
`
`
`14
`
`excepted service who have served at least a year in an Executive
`agency (or in the Postal Service or the Postal Regulatory
`Commission); or (C) non-preference-eligible, non-probationary
`members of the excepted service who have served two years or
`more in an Executive agency. See id. § 7511(a)(1). These
`carefully crafted definitions set up clear demarcations between
`the categories of civil-service members eligible and ineligible
`for the CSRA’s main body of procedural protections against
`adverse employment actions, and the ineligible group includes
`excepted-service employees of non-Executive agencies and
`probationary employees.
`
`Chapter 23, which establishes the principles of the merit
`system of civil-service employment, forbids an agency from
`engaging in certain “prohibited personnel practices,” id.
`§§ 2301–02. Each section is limited almost exclusively to
`employees of Executive agencies using an approach nearly
`identical to that used in Chapter 43. The section listing the basic
`principles of the merit system applies to “an Executive agency”
`and the Government Printing Office. Id. § 2301. The section
`listing the specific prohibited personnel actions defines
`“personnel action” as an action “with respect to an employee in,
`or applicant for, a covered position in an ‘agency,’” which is
`again defined as an Executive agency and the Government
`Printing Office (excluding government corporations, intelligence
`agencies, and the Government Accountability Office). Id.
`§ 2302.
`
`The careful categorization of the subsets of civil-service
`employees eligible for each part of the CSRA’s remedial scheme
`speaks for itself—Congress’s decisions about which civil-
`service members would be eligible for these protections were
`not made inadvertently. Our discussion of the same inquiry in
`Wilson reflects this. There, we held that Congress was aware
`that the definition of “agency” it chose would exclude the
`
`
`
`15
`
`Offices of the President and Vice President from the Privacy
`Act’s disclosure requirements (leaving the Wilsons without
`claims against the three defendants, who were employed with
`those offices). That awareness was sufficient to deem the
`omission “intentional” and “not inadvertent.” Wilson, 535 F.3d
`at 708. Here, the unambiguous use of the narrowing term
`“Executive agency”—a term which plainly does not contain the
`Library of Congress within the meaning of the statute, see 5
`U.S.C. § 7103(a)(3)—and the express exclusion of probationary
`employees from the “agencies” and types of “employees”
`subject to the CSRA’s remedial protections evidences an explicit
`congressional design for the subsets of civil-service employees
`that would and would not have access to those protections. We
`are satisfied that Congress omitted the subset of employees that
`includes Davis from the remedial protections of the CSRA every
`bit as intentionally as it omitted the Offices of the President and
`Vice President from Privacy Act requirements in Wilson. And
`as we wrote in Wilson, “it is where Congress has intentionally
`withheld a remedy that we must most refrain from providing one
`because it is in those situations that ‘appropriate judicial
`deference’ is especially due to the considered judgment of
`Congress that certain remedies are not warranted.” Wilson, 535
`F.3d at 709 (citing Chilicky, 487 U.S. at 423).
`
`In short, all indications suggest Congress has made an
`informed judgment about which remedies should be available to
`particular classes of civil-service employees. The CSRA is a
`comprehensive system to administer public rights; Congress
`consciously, “not inadvertently” omitted remedies for civil-
`service members employed in or under the Library of Congress;
`and nothing suggests Congress intended that courts preserve
`Bivens remedies for such claimants. These indications are
`sufficient to require our deference to Congress as “the body
`charged with making the inevitable compromises required in the
`design of a massive and complex . . . program.” Chilicky, 487
`
`
`
`U.S. at 429.
`
`16
`
`2.
`
`Davis’s argument to the contrary rests on the idea that in no
`other case has the Supreme Court or this court refused to
`recognize a Bivens remedy for a plaintiff based on the existence
`of a remedial scheme that provides no relief whatsoever for the
`alleged constitutional violations. This is incorrect. To begin
`with, the Chilicky plaintiffs sought a Bivens remedy against state
`and federal officials for “emotional distress and for loss of food,
`shelter and other necessities proximately caused by [the
`officers’] denial of [disability] benefits without due process.”
`487 U.S. at 419 (internal quotation marks omitted). The Act
`“makes no provision for remedies in money damages against
`officials responsible for unconstitutional conduct that leads to
`the wrongful denial of benefits.” Id. at 424. Even so, the
`Supreme Court rejected the Bivens request because the Social
`Security Act provided a multi-step process for review of
`disability claims.
`
`Wilson is even more to the point. The Privacy Act provided
`no relief for the claims of either Mr. or Mrs. Wilson against the
`three officers they sued for disclosing the fact of Mrs. Wilson’s
`CIA employment. The Act only offered a “possible claim” by
`Mrs. Wilson against a defendant not named in the lawsuit.
`Wilson, 535 F.3d at 709. Mr. Wilson had no cognizable claim
`under the Privacy Act against anyone because the only
`information disclosed by the defendants was his wife’s, meaning
`only she could bring a claim under the Act. Yet this court
`refrained from providing a Bivens remedy even to him because
`“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.” Id. Simply put, this will not
`be the first time we have rejected a Bivens request in light of a
`
`
`
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`comprehensive statutory scheme that fails to provide for redress
`of a plaintiff’s constitutional claims.
`
`These precedents control the current case. The district court
`pointed to the CSRA’s lack of any review for Davis’s alleged
`constitutional violations as dispositive evidence that the CSRA
`cannot be considered a “comprehensive” remedial system. But
`Chilicky, Spagnola, and particularly Wilson are to the contrary.
`“[C]ase-specific analysis . . . of the particular statutory remedies
`available to a claimant” is not required; instead, we look to
`whether the design of a statutory scheme evinces an informed
`congressional judgment that the remedies provided by the
`scheme are adequate. Spagnola, 859 F.2d at 227–28. If it does,
`the scheme’s failure to provide a remedy to a “particular
`plaintiff for the particular claim he or she wishes to pursue” does
`not make the scheme any less “comprehensive” for purposes of
`determining whether it is a special factor that precludes the
`creation of a Bivens remedy. See, e.g., Wilson, 535 F.3d at 709.
`The Wilson plaintiffs made a nearly identical argument, see id.
`at 707. It was as unavailing then as it is now. The Privacy Act’s
`failure to provide complete relief to the Wilsons did not
`“undermine its status as a ‘comprehensive scheme’ that stops us
`from providing additional remedies under Bivens.” Id. Just so,
`the CSRA’s lack of relief for Davis does not prevent it from
`being a “comprehensive remedial scheme” that precludes us
`from creating a Bivens remedy.
`
`Davis contends that his complete lack of available remedies
`under the CSRA matters for a slightly different reason. He
`argues that Congress’s omission of any remedies for Library of
`Congress employees under the CSRA, while deliberate, does not
`demonstrate a considered judgment about which remedies
`should be available to those employees; rather, it shows that
`those employees are not “included in” or “covered by” the
`concededly comprehensive remedial system at all. This would
`
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`mean he could still bring a Bivens action, he concludes, because
`a comprehensive remedial system cannot serve as a special
`factor barring creation of a Bivens remedy for employees who
`are not “covered” by that system.
`
`This is not a novel theory. It has been framed before as the
`question “whether a particular claimant—and his underlying
`claim—should be
`included
`in a given congressional
`‘comprehensive system’ for purposes of applying ‘special
`factors’ analysis.” Spagnola, 859 F.2d at 229. For instance,
`“while in some cases the outer boundaries for inclusion in
`‘comprehensive systems’ may be less than clear,” there was
`“little doubt” that Congress had brought First Amendment
`claims like those advanced by the Spagnola plaintiffs “within
`CSRA’s ambit . . . because the CSRA itself, in one fashion or
`another, affirmatively speaks to [claims like those] by
`condemning the underlying actions as ‘prohibited personnel
`practices.’” Id. This case is not materially different. Moreover,
`while the CSRA’s remedial scheme does not provide Davis with
`procedural protections (due to his sta