Davis v. Billington

Decision Date25 June 2014
Docket NumberCivil Action No. 10–00036 RBW
Citation51 F.Supp.3d 97
CourtU.S. District Court — District of Columbia
PartiesMorris D. Davis, Plaintiff, v. James H. Billington, in his official capacity as the Librarian of Congress, Defendant.

Brian M. Hauss, Lee Rowland, Alexander Abdo, Amerian Civil Liberties Union Foundation, Lee B. Rowland, NYU Law School, New York, NY, Arthur B. Spitzer, Frederick V. Mulhauser, American Civil Liberties Union of the Nation's Capital, Washington, DC, for Plaintiff.

Christopher R. Hall, U.S. Department of Justice, Washington, DC, for Defendant.


REGGIE B. WALTON, United States District Judge

The plaintiff, Morris D. Davis, filed this action against James H. Billington, the Librarian of Congress, in his official capacity, and Daniel P. Mulhollan, the former Director of the Congressional Research Service (“CRS”), in his individual capacity, alleging that the defendants violated his First and Fifth Amendment constitutional rights. Complaint (“Compl.”) ¶¶ 13–14, 78–85. The only claims that now remain are those against defendant Billington. Currently before the Court are the Defendant's Motion to Dismiss for Lack of Subject–Matter Jurisdiction or, in the Alternative, for Summary Judgment (“Def.'s Mot.”), filed by defendant Billington, and the Plaintiff's Motion for Summary Judgment (“Pl.'s Mot.”). After carefully considering the parties' submissions1 and their oral arguments presented to the Court on March 26, 2014, the Court concludes for the following reasons that it must grant in part and deny in part the defendant's motion and deny the plaintiff's motion.


The factual allegations that the plaintiff makes in this case are set forth in prior memorandum opinions issued by this Court and by this Circuit on appeal of this Court's opinion. See Davis v. Billington, 775 F.Supp.2d 23, 27–29 (D.D.C.2011), vacated and remanded, 681 F.3d 377, 379–80 (D.C.Cir.2012). A divided panel of the District of Columbia Circuit reversed this Court's order denying defendant Mulhollan's motion to dismiss, see Davis, 681 F.3d at 379–80, and in accordance with the mandate issued following the Circuit's opinion, this Court thereafter dismissed the plaintiff's claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendant Mulhollan. See Order at 1, ECF No. 53. Thus, because the plaintiff sued defendant Mulhollan only in his individual capacity, he is no longer a party in this case.

The plaintiff's factual allegations aside, the following facts are undisputed. The plaintiff “is a twenty-five year veteran of the U.S. Air Force” who was “appointed Chief Prosecutor for the Department of Defense's Office of Military Commissions in 2005.” Pl.'s Stmt. ¶ 1; Def.'s Resp. Stmt. ¶ 1. In that capacity, [h]e was responsible for overseeing the military commissions created to prosecute suspected terrorists held at Guantánamo Bay, Cuba.” Pl.'s Stmt. ¶ 1; Def.'s Resp. Stmt. ¶ 1. The plaintiff resigned from his position as Chief Prosecutor in October 2007, and thereafter “became a vocal critic of the military commissions system.” Pl.'s Stmt. ¶¶ 1–2; Def.'s Resp. Stmt. ¶¶ 1–2. He “wrote opinion pieces for major newspapers[,] ... spoke about his experiences concerning the military commissions to various legal audiences,” and “was asked to testify before Congress in July 2008.” Pl.'s Stmt. ¶ 2; Def.'s Resp. Stmt. ¶ 2.

“In December 2008, [the plaintiff] began work at the ... [CRS], a unit of the Library of Congress (‘the Library’), as Assistant Director of its Foreign Affairs, Defense, and Trade Division,” Pl.'s Stmt. ¶ 3; Def.'s Resp. Stmt. ¶ 3, in a probationary status, Def.'s Stmt. ¶ 1. The Foreign Affairs, Defense, and Trade Division “has official responsibilities for matters including foreign affairs and the [United States] Defense Department.”2 Pl.'s Stmt. ¶ 4; Def.'s Resp. Stmt. ¶ 4. In his capacity as the Assistant Director, the plaintiff “reported directly to [then] CRS Director Daniel Mulhollan ... and managed the substantive work of almost 100 analysts and support personnel within [the Foreign Affairs, Defense, and Trade Division].” Def.'s Stmt. ¶ 2. The [p]laintiff was [also] responsible for enforcing Library of Congress and CRS rules, regulations, and policies among the staff of [the Division].” Id. ¶3. Additionally, he “spoke about military commissions on certain occasions during his CRS tenure with knowledge of and approval by CRS management.” Def.'s Resp. Stmt. ¶ 5; Pl.'s Stmt. ¶ 5.

“On November 10, 2009, [the] [p]laintiff caused to be published an opinion-editorial piece in the Wall Street Journal and a letter-to-the-editor in the Washington Post, both written by him addressing military commission and detainee prosecution issues.” Def.'s Stmt. ¶ 5; Pl.'s Stmt. ¶ 8. Neither submission “referenced [the] CRS or the Library,” Pl.'s Stmt. ¶ 8; Def.'s Resp. Stmt. ¶ 8, and [t]here was no explicit disclaimer” appended to either submission, Pl.'s Stmt. ¶ 11; Def.'s Resp. Stmt. ¶ 11. “Director Mulhollan requested a meeting with [the] [p]laintiff for November 12, 2009, to continue the discussion about the opinion pieces that had begun the previous evening by e-mail,” as well as “a subsequent meeting with [him] for November 13, 20[09].” Def.'s Resp. Stmt. ¶ 14; Pl.'s Stmt. ¶ 14. During the November 13, 2009 meeting, [Director] Mulhollan handed [the plaintiff] a formal letter of admonishment.” Pl.'s Stmt. ¶ 14; Def.'s Resp. Stmt. ¶ 14. Several days later, [o]n November 20, [2009,] [Director] Mulhollan informed [the plaintiff] that he would be terminated as of December 21, 2009, and that [he] would thereafter be given a thirty-day temporary position as [Director] Mulhollan's Special Advisor. [Director] Mulhollan's assistant then delivered a formal notice of termination to [the plaintiff].” Pl.'s Stmt. ¶ 16; Def.'s Resp. Stmt. ¶ 16.

The defendant has now filed a motion to dismiss on jurisdictional grounds, or in the alternative, for summary judgment. The plaintiff has opposed the defendant's motion with his own motion for summary judgment.

A. Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) allows a party to move to dismiss for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self–Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004) ; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’ Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (citation omitted). “Although ‘the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) on the complaint standing alone,’ ‘where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted).

B. Rule 56 Motion for Summary Judgment

A motion for summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” based upon the depositions, affidavits, and other factual materials in the record. Fed.R.Civ.P. 56(a), (c). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And [a] dispute over a material fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ Arrington v. United States, 473 F.3d 329, 333 (D.C.Cir.2006) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the opposing party to ‘set forth specific facts showing that there is a genuine issue for trial.’ Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (citation omitted). “Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate ‘if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011) (citations omitted). [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this assessment, [t]he evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ).

A. Whether the Civil Service Reform Act of 1978 Precludes Judicial Review of the Plaintiff's Constitutional Claims

The defendant argues that the holding of a recent Supreme Court case, Elgin v. Dep't of Treasury, ––– U.S. ––––, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012), mandates the conclusion that claims like the plaintiff's are unreviewable by district courts. Def.'s Mem. at 6.

In Elgin, the Supreme Court held that the review scheme set forth in the ...

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