Gerald Krafsur v. Michael Davenport

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0337p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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GERALD I. KRAFSUR, United States

Plaintiff-Appellant, --

Administrative Law Judge,

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No. 13-5598

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v.

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MICHAEL DAVENPORT, individually and in

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his capacity as Hearing Office Chief

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Administrative Law Judge; and SOCIAL

Defendants-Appellees. -

SECURITY ADMINISTRATION,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 2:11-cv-00170—J. Ronnie Greer, District Judge.

Argued: November 21, 2013

Decided and Filed: December 4, 2013

Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge.*

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COUNSEL

ARGUED: Charlton R. DeVault, Jr., Kingsport, Tennessee, for Appellant. Cecil

VanDevender, UNITED STATES ATTORNEYS OFFICE, Nashville, Tennessee, for

Appellees. ON BRIEF: Charlton R. DeVault, Jr., Kingsport, Tennessee, for Appellant.

Cecil VanDevender, UNITED STATES ATTORNEYS OFFICE, Nashville, Tennessee,

Mary Ann Sloan, Dennis R. Williams, John C. Stoner, Brian Seinberg, Shirley Lee

Sohrn, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellees.

*

The Honorable Robert M. Dow, Jr., United States District Judge for the Northern District of

Illinois, sitting by designation.

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No. 13-5598 Krafsur v. Davenport Page 2

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OPINION

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SUTTON, Circuit Judge. Claiming that his employer violated the United States

Constitution in disciplining him, a federal employee filed this lawsuit in federal district

court. In doing so, he bypassed a system set up by the Civil Service Reform Act for

addressing the personnel complaints of federal employees, prompting this question: Is

the Act’s personnel-grievance process exclusive?

I.

Gerald Krafsur, a federal administrative law judge, hears social security disability

claims. Among other responsibilities, he decides how much to award successful

claimants in attorney’s fees. Judge Krafsur alleges that Michael Davenport, the chief

judge in his office, told him that his fee awards were too low. Krafsur’s refusal to start

making higher awards allegedly prompted Davenport to reprimand him, deny him leave

and withhold his paychecks. Krafsur complained about Davenport’s actions to the

Office of Special Counsel, an agency that handles grievances from federal employees.

Before the Special Counsel could respond, however, Krafsur went to federal district

court.

Krafsur claimed in court that Davenport’s actions violated the First and Fifth

Amendments. He sued Davenport under Bivens v. Six Unknown Named Agents, which

creates a cause of action against federal officers for constitutional violations. 403 U.S.

388 (1971). And he sued the Social Security Administration under the Administrative

Procedure Act and the Tucker Act, which authorize lawsuits against the United States

for (among other things) constitutional violations. 5 U.S.C. § 702; 28 U.S.C. § 1346.

The district court dismissed Krafsur’s lawsuit on the ground that the remedial framework

established by the Civil Service Reform Act is exclusive.

No. 13-5598 Krafsur v. Davenport Page 3

II.

A.

Before Congress enacted the Civil Service Reform Act in 1978, a jumble of

statutes and executive orders governed the resolution of federal employees’ complaints

about the workplace. The Act replaced this patchwork with a coherent system of

administrative and judicial review. The new system handles all “personnel actions,” a

capacious term defined to include appointments, transfers, any “disciplinary or

corrective action,” “any . . . significant change in duties, responsibilities, or working

conditions,” and much else besides. 5 U.S.C. § 2302(a)(2). The extent of available

review turns on the severity of the personnel action and the rank of the employee.

Generally speaking, the Act divides covered actions into two categories: adverse

actions and prohibited personnel practices. See Carducci v. Regan, 714 F.2d 171, 175

(D.C. Cir. 1983) (Scalia, J.). Adverse actions are the most serious the government may

take against its employees. For administrative law judges, these include removal,

suspension, reduction in grade, reduction in pay and some furloughs. 5 U.S.C. § 7521.

The Act entitles an employee facing an adverse action to a formal hearing before the

Merit Systems Protection Board and if necessary an appeal to the Federal Circuit. Id.

§§ 7521, 7703.

Prohibited personnel practices are less serious than adverse actions. The Act

defines this category broadly. It includes violations of “any law, rule, or regulation

implementing, or directly concerning, . . . merit system principles,” id. § 2302(b)(12),

which in turn entitle employees to “fair and equitable treatment in all aspects of

personnel management,” to insist upon “proper regard for . . . constitutional rights,” and

to prohibit “arbitrary action,” id. § 2301(b). An employee faced with a prohibited

personnel practice must first complain to the Office of Special Counsel. If the Special

Counsel concludes that “there are reasonable grounds to believe that a prohibited

personnel practice has occurred,” he must report his conclusion to the agency. Id.

§ 1214(b)(2)(B). If the agency fails to take corrective action, the Special Counsel may

refer the case to the Merit Systems Protection Board (from which the employee may

No. 13-5598 Krafsur v. Davenport Page 4

appeal to the Federal Circuit). Id. §§ 1214(b)(2)(C), 1214(c). But if the Special Counsel

concludes that the complaint lacks merit, or if he declines to refer the case to the Board,

the employee is out of luck. A court may not review the Special Counsel’s decisions

unless the Counsel “has declined to investigate a complaint at all.” Carson v. U.S. Office

of Special Counsel, 633 F.3d 487, 493 (6th Cir. 2011).

This description does not begin to capture the Act’s many intricacies. Anyone

who reads through the Act will encounter more types of covered actions and more

channels of administrative or judicial review. Even within the category of prohibited

personnel practices, the Act makes some exceptions. If an employee alleges

discrimination because of race or sex, for example, the Act allows him to bypass the

Special Counsel procedure and to sue in district court under the civil rights laws.

5 U.S.C. § 2302(d). Or if an employee alleges retaliation for whistleblowing or “for

refusing to obey an order that would require [him] to violate a law,” the Act allows him

to bypass the Special Counsel procedure and to go straight to the Board. Id. §§ 1221(a),

2302(b)(9).

But this initial sketch of the Act’s two main tiers suffices for now. Both parties

agree that Krafsur’s target, “disciplinary or corrective action,” fits into the lower

tier—prohibited personnel practices governed by the Act. Id. § 2302(a)(2). Such

practices include discriminating against an employee “on the basis of conduct which

does not adversely affect [his] performance.” Id. § 2302(b)(10). As Krafsur sees it,

Davenport disciplined him for making accurate fee awards, which does not “adversely

affect” anybody’s performance.

Krafsur at first tried to follow the trail marked by the Act for filing such

complaints by sending a letter to the Office of Special Counsel. But the Special Counsel

did not respond. According to the government, Krafsur’s letter did not comply with the

federal regulations that establish a formal procedure for lodging complaints. See

5 C.F.R. § 1800.1(c). All agree, however, that Krafsur retains the right to submit a

formal complaint now. Instead of following that path then or now, Krafsur insists that

No. 13-5598 Krafsur v. Davenport Page 5

he has the right to file a lawsuit directly in federal district court. May he do so? We

think not.

B.

Up first is whether Krafsur may bring a Bivens claim against Davenport in

federal district court. In Bivens v. Six Unknown Named Agents, the Supreme Court

created a federal cause of action against federal officials for certain types of

constitutional violations. 403 U.S. at 390. A Bivens lawsuit arises against the individual

officer who violated his rights, not against the government. That explains why Krafsur

directs his Bivens claim against Davenport rather than the Social Security

Administration.

Bivens actions do not cover every constitutional right and do not apply in every

context. See, e.g., Wilkie v. Robbins, 551 U.S. 537 (2007) (no Bivens action for

violations of the Takings Clause); Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (no

Bivens action against private prison operators). If an “alternative, existing

process . . . protect[s]” the right sufficiently, the courts must “refrain from providing a

new and freestanding remedy.” Robbins, 551 U.S. at 550. “[E]ven in the absence of an

alternative,” moreover, the availability of a Bivens action remains “a subject of

judgment: the federal courts must make the kind of remedial determination that is

appropriate for a common-law tribunal, paying particular heed . . . to any special factors

counseling hesitation before authorizing a new kind of federal litigation.” Id. (internal

quotation marks omitted).

Consistent with this framework, Bush v. Lucas concluded that courts should not

“supplement” the Civil Service Reform Act’s “comprehensive procedural and

substantive provisions . . . with a new judicial remedy” for personnel decisions covered

by the Act. 462 U.S. 367, 368 (1983). The Court perceived several “special factors

counselling hesitation.” Id. at 378. It explained that giving federal employees a Bivens

remedy risks interfering with “an elaborate remedial system that [Congress] constructed

step by step, with careful attention to conflicting policy considerations.” Id. at 388. And

it explained that a separate review track for disciplinary decisions comes with costs,

No. 13-5598 Krafsur v. Davenport Page 6

diverting the “time and energy of managerial personnel who must defend their

decisions,” potentially “deter[ing] [supervisors] from imposing” deserved discipline, and

dampening “the efficiency of the civil service.” Id. at 388–89. Congress, the Supreme

Court believed, “is in a far better position than a court” to balance these costs against the

benefits of creating new causes of action. Id. at 389.

Bush disposes of the Bivens action against Davenport. Because the lawsuit

concerns a personnel action covered by the Civil Service Reform Act, it must fail.

Krafsur insists that his grievance is different, because the Act gives him more

limited remedies than it gave the employee in Bush. But Bush does not turn on whether

Congress has provided complete relief, considerable relief or little relief. See Schweiker

v. Chilicky, 487 U.S. 412, 425 (1988). It turns on the special features of the federal

workplace, features that make judicial interference with Congress’s fine-tuned

judgments inappropriate. “In the field of federal employment,” we have accordingly

explained, “even if no remedy at all has been provided by the [Act], courts will [still] not

create a Bivens remedy.” Jones v. TVA, 948 F.2d 258, 264 (6th Cir. 1991).

C.

The Tucker Act and Administrative Procedure Act lawsuits raise a more complex

question of statutory interpretation. The Tucker Act waives sovereign immunity in

lawsuits seeking damages from the United States for various legal wrongs, including

constitutional violations. 28 U.S.C. § 1346(a)(2). And the Administrative Procedure

Act waives sovereign immunity in lawsuits seeking non-monetary remedies from the

United States for various legal wrongs, again including constitutional violations. 5

U.S.C. §§ 702, 706(2)(B). Unlike Krafsur’s Bivens claim, these lawsuits target the

Social Security Administration, not Davenport.

The question here is a similar one: Does the Civil Service Reform Act displace

Krafsur’s remedies under the Tucker and Administrative Procedure Acts? As a general

rule, the enactment of a new set of remedies does not by itself take away preexisting

statutory remedies for the same wrong. But a federal statute precludes resort to

No. 13-5598 Krafsur v. Davenport Page 7

alternative remedies if this result is “fairly discernible in the statutory scheme.” Elgin

v. Dep’t of Treasury, 132 S. Ct. 2126, 2132 (2012); Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 207 (1994).

Applying this standard, United States v. Fausto concluded that the Civil Service

Reform Act establishes the sole track for challenging personnel decisions on statutory

grounds. 484 U.S. 439, 455 (1988). The Act, to be sure, does not say in so many words

that it precludes employees from invoking alternative remedies. But the Act establishes

a comprehensive, reticulated and precise system of review that accounts for the rank of

the employee and the severity of the personnel action. Id. at 448–52. The Act’s history

shows that the Act was designed to replace haphazard arrangements for review of

personnel decisions with a unified framework. Id. at 444–45. These considerations

gave the Court “ample” grounds for discerning exclusivity in the statutory scheme. Id.

at 452.

Applying the same standard, Elgin v. Department of Treasury extended Fausto’s

holding to constitutional claims. 132 S. Ct. at 2134. Elgin explained that nothing in the

Act’s text, structure or purpose distinguishes constitutional from statutory cases. Id. at

2134. As a result, it held, the arguments supporting the Act’s exclusivity for statutory

challenges work just as well for constitutional challenges. Id. at 2134–35.

Fausto and Elgin control today’s case. The Civil Service Reform Act spells out

in painstaking detail the path an employee must follow if he wants to challenge a

prohibited personnel practice. And Krafsur concedes that a lawsuit in district court

strays from this path. Because exclusivity is fairly discernible in the Act’s scheme,

whether with respect to constitutional or other statutory challenges to personnel

decisions, Krafsur’s lawsuit may not proceed. Cf. Ryon v. O’Neill, 894 F.2d 199, 204

(6th Cir. 1990) (reaching a parallel conclusion with respect to a statutory challenge to

a prohibited personnel practice). Our earlier analysis of the Bivens claim reinforces this

conclusion. It would be strange if the Act sent a strong enough message of exclusivity

to displace a constitutionally rooted remedy but not to displace remedies created by

No. 13-5598 Krafsur v. Davenport Page 8

Congress. In both contexts, “what you get under the [Civil Service Reform Act] is what

you get.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005) (Roberts, J.).

Krafsur responds that we have gauged the Civil Service Reform Act’s exclusivity

under the wrong standard. He points to a line of cases, most prominently Webster v.

Doe, holding that a court should not interpret a statute to “deny any judicial forum for

a colorable constitutional claim” unless Congress’s “intent to do so [is] clear.” 486 U.S.

592, 603 (1988); see also Demore v. Kim, 538 U.S. 510, 517 (2003); Bowen v. Mich.

Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Johnson v. Robison,

415 U.S. 361, 373–74 (1974). The “heightened standard” established by these decisions

requires more clarity than the fair-discernability test we have just applied. Elgin, 132

S. Ct. at 2132.

If Elgin did not apply a heightened standard of clarity, why should we? Krafsur

offers an answer. Elgin involved the most severe type of personnel decision, an adverse

action. The Act thus granted the employee review before the Merit Systems Protection

Board and the Federal Circuit. This guarantee of eventual judicial review made Doe’s

special rule inapplicable. See Elgin, 132 S. Ct. at 2132. This case by contrast involves

a less serious type of personnel decision, a prohibited personnel practice, and the Act

does not give Krafsur a guaranteed path to court. The Special Counsel might stop him

before he gets to the Board; and if he does not get to the Board, he cannot get to the

Federal Circuit. Krafsur argues that this roadblock to judicial review, absent in Elgin,

activates Doe’s special standard.

Krafsur’s effort “to carve out an exception” to the Act’s “exclusivity” for

constitutional challenges to prohibited personnel practices, id. at 2134, fails for two

reasons. The impediments to judicial review here are too slight to bring Doe into play.

And even if we could bring Doe into play, it would not alter the outcome in the case at

hand.

Doe’s heightened standard does not govern today’s case. Each precedent in the

Doe series involved a total denial of judicial review for constitutional claims. This case

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involves only a narrow limit upon judicial review. Krafsur may still take his case to the

Federal Circuit, so long as he gets clearance from the Office of Special Counsel.

For the most part, the claims the Special Counsel keeps out do not belong in

court anyway. The Special Counsel weeds out frivolous complaints, see 5 U.S.C.

§ 1214(b)(2)(B), and frivolous arguments, even frivolous constitutional arguments, have

no special entitlement to reach a federal judge. See Doe, 486 U.S. at 603 (requiring a

“heightened showing” only when a statute denies a judicial forum “for a colorable

constitutional claim” (emphasis added)). The Special Counsel also weeds out grievances

that agencies stand ready to redress without litigation, see 5 U.S.C. § 1214(b)(2)(C), but

here too the employee kept out of court can hardly complain.

Beyond that, various safeguards attending the Special Counsel procedure

diminish the risk of blocking meritorious constitutional challenges. The Special Counsel

has every incentive to help wronged employees. The Act makes it his job to expose

agency misbehavior and to “protect employees . . . from prohibited personnel practices.”

Id. § 1212(a). And the Act protects his independence in performing this task. The

Special Counsel receives his appointment from the President, may be removed only for

cause, chooses his staff without interference from other executive agencies, and has

independent authority to launch investigations, to participate in Board proceedings and

to file friend-of-the-court briefs. See id. §§ 1211(b), 1212(b)–(d), (h).

Further still, the requirement that an employee receive the Special Counsel’s go-

ahead before heading to court covers only relatively minor matters. Recall that

employees complaining about severe personnel decisions, like removal or demotion,

may march straight to the Board and the Federal Circuit. Id. §§ 7521, 7703. Recall also

that employees complaining about less severe personnel decisions may head straight to

court if the complained-of decision involves particularly heinous types of wrongdoing

like race discrimination. Id. § 2302(d). Recall too that employees alleging retaliation

for whistleblowing or “for refusing to obey an order that would require [him] to violate

a law,” id. § 2302(b)(9)(D), may go straight to the Board and then to the Federal Circuit.

This last option indeed covers many of Krafsur’s claims.

No. 13-5598 Krafsur v. Davenport Page 10

We doubt whether such a modest clearance requirement, accompanied by such

rigorous safeguards and applicable only to relatively minor decisions, would trigger

Doe’s special rule in any context. We are confident that it does not trigger the rule in

the context of government employment. The government has “greater leeway in its

dealings with citizen employees than it does when it brings its sovereign power to bear

on citizens at large.” Engquist v. Or. Dep’t of Agriculture, 553 U.S. 591, 599 (2008).

And in general “a federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency.” Id. at 600. These principles

do not mean that the government workplace is a Constitution-free zone. But they do

mean that many constitutional imperatives apply with less force when the government

acts as employer. See, e.g., NASA v. Nelson, 131 S. Ct. 746 (2011) (substantive due

process); Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011) (right to petition);

Engquist, 553 U.S. 591 (equal protection); Garcetti v. Ceballos, 547 U.S. 410 (2006)

(freedom of speech); O’Connor v. Ortega, 480 U.S. 709 (1987) (freedom from

unreasonable searches). In the same way, the government’s needs as employer do not

suspend the requirement that Congress speak clearly before foreclosing all judicial

review of constitutional challenges. See Doe, 486 U.S. at 603. But they argue against

giving this requirement a broad sweep. Doe’s heightened standard of clarity in the last

analysis does not govern this case.

Even under Doe’s heightened standard of clarity, Krafsur’s efforts to sidestep the

Act’s remedial regime would still fall short. The Act leaves no doubt that an employee

who believes that a prohibited personnel practice has occurred must take his complaint

to the Special Counsel, not a district court, even if he contends that the practice violates

the Constitution.

The text of § 2302 (which deals with prohibited personnel practices) signals that

the Act’s exclusivity extends to constitutional challenges. Covered prohibited practices

include many actions that would offend the Constitution. See, e.g., 5 U.S.C.

§ 2302(b)(1)(A) (discriminating on account of race, color, religion, sex or national

origin); id. § 2302(b)(1)(E) (discriminating on account of political affiliation); id.

No. 13-5598 Krafsur v. Davenport Page 11

§ 2302(b)(3) (coercing an employee’s political activity). The section also prohibits

violating “any law, rule, or regulation implementing, or directly concerning, . . . merit

system principles,” id. § 2302(b)(12), and these principles in turn entitle employees to

“proper regard for their . . . constitutional rights,” id. § 2301(b)(2). These provisions

show that Congress anticipated that the Office of Special Counsel and the Board would

handle constitutional as well as statutory issues. See Elgin, 132 S. Ct. at 2134 (“[The

Board] routinely adjudicates some constitutional claims,” especially “claims that an

agency [violated] an employee’s First or Fourth Amendment rights.”); Bush, 462 U.S.

at 386 (“Constitutional challenges to agency action . . . are fully cognizable within [the

Act’s] system.”). An employee may not evade this result by artful pleading—by taking

a core prohibited personnel practice covered by § 2302 and dressing it up as a

constitutional claim.

The text of § 2302 provides a further reason to doubt Krafsur’s theory. If an

employee alleges discrimination on account of forbidden grounds like race or sex,

§ 2302(d) permits him to sue in district court under the civil rights laws. The Act’s

special treatment of discrimination claims “demonstrates that Congress knew how to

provide alternative forums for judicial review based on the nature of an employee’s

claim.” Elgin, 132 S. Ct. at 2134. Congress’s failure to include a similar exception for

challenges like Krafsur’s “indicates that Congress intended no such exception.” Id. at

2135.

Allowing employees like Krafsur to jump straight to district court also would

overturn a central element of the Act’s architecture: the harsher the action, the greater

the employee’s entitlement to review. See supra at 3–4; see also Kloeckner v. Solis,

133 S. Ct. 596, 600 (2012) (“The Civil Service Reform Act . . . provides graduated

procedural protections depending on an action’s severity.”). Under Elgin, employees

facing more severe decisions (adverse actions) must go through the Board before

bringing their constitutional challenge in court. Under Krafsur’s theory, however,

employees facing less severe decisions (prohibited practices) would enjoy “the luxury

of immediate judicial review, without any resort to the administrative process,”

No. 13-5598 Krafsur v. Davenport Page 12

Carducci, 714 F.2d at 174–75. Put concretely, an administrative law judge would have

more extensive remedies for a reprimand than for a dismissal, more for a temporary

reassignment than for a permanent demotion, more for a denial of leave than for a

suspension.

Treating the Act’s remedial scheme as non-exclusive also would subvert the

Act’s objectives. One aim of the Act is to prevent “parallel litigation.” Elgin, 132 S. Ct.

at 2135. Krafsur’s theory, however, would yield parallel litigation whenever a minor

personnel decision escalates into a major one—whenever, say, a supervisor follows up

a reprimand with a suspension. The employee would have to challenge the suspension

(an adverse action) before the Board but could challenge the reprimand (at most a

prohibited personnel practice) in district court—meaning that two different tribunals

would simultaneously hear about related personnel decisions resulting from the same

employee conduct and involving the same constitutional issues. More, Krafsur’s theory

would yield bifurcated litigation even when no such escalation occurs. A prohibited

personnel practice might violate both a statute and the Constitution. Krafsur’s theory

would require routing the statutory part of the case through the Special Counsel, the

Board and the Federal Circuit, and the constitutional part through the district courts and

the regional courts of appeals.

The Act serves another purpose: ensuring that federal workplaces across the

country follow a uniform body of law developed by the Federal Circuit. Id.; Fausto,

484 U.S. at 449. Under Krafsur’s approach, however, an employee could challenge a

prohibited personnel practice in the regional circuits, each of which might have its own

take on the Constitution. Worse, Krafsur’s approach encourages forum shopping. Does

the law in the Federal Circuit favor the employee’s constitutional argument? Then he

can follow the Special Counsel route. Would the employee fare better in one of the

regional circuits? Then he can sue in district court. The employee, indeed, would not

even have to choose between these two options. He could complain to the Special

Counsel and sue in federal district court, hoping that one way or another he will win.

No. 13-5598 Krafsur v. Davenport Page 13

Far from coming up on rare occasions, these problems likely would

arise frequently. Constitutional claims, especially equal protection and due process

challenges, “are part of the ordinary fodder of review” in federal employment disputes.

See Elgin v. Dep’t of Treasury, 641 F.3d 6, 12 (1st Cir. 2011) (Boudin, J.).

Krafsur’s interpretation of the Act would in short make a muddle of its text, a

shambles of its structure and a lost cause of its purpose. That is a clear enough

indication of statutory meaning to overcome any barrier set up by Doe.

Krafsur persists that Doe requires more clarity still. But unlike say Gregory v.

Ashcroft, 501 U.S. 452 (1991) (involving restriction of a State’s core sovereign powers),

or Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) (involving elimination of a

State’s immunity from suit), Doe does not establish an express-statement requirement.

An early decision in the Doe sequence, Johnson v. Robison, proves the point. The Court

observed that “no explicit provision [in the relevant statute] bars judicial consideration

of [Robison’s] constitutional claims.” 415 U.S. at 367. If Doe’s heightened standard

were an express-statement rule, the Court would have stopped there. Cf. Dellmuth v.

Muth, 491 U.S. 223, 230 (1989) (“[Under Atascadero], evidence of congressional intent

must be both unequivocal and textual. . . . Legislative history generally will be irrelevant

to a judicial inquiry into whether Congress intended to abrogate the Eleventh

Amendment.”). But it did not. The Court went on to consult statutory purpose,

legislative history and administrative practice before pronouncing the law insufficiently

clear to prohibit constitutional review. Robison, 415 U.S. at 367–74.

Demore v. Kim does not undercut this conclusion. Kim, an alien detained

pending his removal from the country, wanted to use the writ of habeas corpus to raise

a constitutional challenge to his confinement. The Court held that he could do so,

because the governing statute “contain[ed] no explicit provision barring [his lawsuit].”

538 U.S. at 517. The Court explained, however, that it had insisted upon a “particularly

clear statement” because of the special presumption in favor of habeas review. Id. This

case does not involve the Great Writ and thus presents no occasion for ratcheting up the

Doe standard.

No. 13-5598 Krafsur v. Davenport Page 14

III.

For these reasons, we affirm.