Davis v. Billington

Decision Date19 December 2014
Docket NumberCivil Action No. 10–0036 RBW
Citation76 F.Supp.3d 59
PartiesMorris D. Davis, Plaintiff, v. James H. Billington, in his official capacity as the Librarian of Congress, Defendant.
CourtU.S. District Court — District of Columbia

Brian M. Hauss, Lee Rowland, Aden J. Fine, Alexander Abdo, American 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, Nicholas P. Cartier, U.S. Department of Justice, Joseph Wilfred Mead, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.


REGGIE B. WALTON, United States District Judge

Currently before the Court is the Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction (“Mot.”). The plaintiff seeks instatement into a “recently advertised position within the Congressional Research Service,” id. at 1, i.e., the “Deputy Assistant Director of the Congressional Research Service's Foreign Affairs, Defense and Trade Division,”1 id. at 4. The plaintiff describes the position as being “reasonably comparable to the [Assistant Director of the Congressional Research Service's Foreign Affairs, Defense and Trade Division] position from which he was unlawfully discharged.” Id. at 1, 3. Alternatively, the plaintiff requests that the Court temporarily enjoin the defendant “from filling this currently-available position, which would potentially eliminate the only real relief available to [the][p]laintiff in this action.” Id. at 1. After careful consideration of the parties' submissions,2 as well as the parties' oral arguments at the December 11, 2014 hearing on the plaintiff's motion, the Court concludes that it cannot award the plaintiff the extraordinary forms of relief he desires, and thus the plaintiff's motion must be denied.


The Court need not rehash the factual background in much detail, as it has been set forth in various opinions by both this Court and the District of Columbia Circuit. See generally Davis v. Billington, 775 F.Supp.2d 23, 26–29 (D.D.C.2011) (providing factual background), vacated and remanded, 681 F.3d 377, 379–80 (D.C.Cir.2012) (same); see also Davis v. Billington, 51 F.Supp.3d 97, 103–105,2014 WL 2882679, at *1–2 (D.D.C.2014) (same). In brief, the plaintiff filed suit against the defendant, alleging that the defendant violated his First Amendment rights,3 by terminating him as the Assistant Director of the Congressional Research Service's Foreign Affairs, Defense and Trade Division (“Assistant Director”) for permitting the Wall Street Journal and the Washington Post to publish opinion pieces that he authored, wherein he criticized the Obama administration's prosecution of Guantanamo Bay detainees.See Davis, 681 F.3d at 379–80 ; Davis, 51 F.Supp.3d at 104–105, 114–115 2014 WL 2882679, at *2, *10. Upon filing suit, the plaintiff sought a “preliminary injunction to prevent the Congressional Research Service, a service unit of the Library of Congress, from terminating his employment.” Order at 1, Davis v. Billington, No. 10–cv–36 (D.D.C. Jan. 20, 2010), ECF No. 11 (Order”). In considering the motion for preliminary injunctive relief,4 the Court found that “the plaintiff ha[d] established, at least based on the record before the Court at th[at] time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh[ed] in [the plaintiff's] favor,” id. at 2, and that “the balance of harms factor ... seem[ed] to be in equipoise,” id. at 3. Nevertheless, the Court ultimately denied the plaintiff's motion on the ground that he had not demonstrated any irreparable harm. See id. at 5–8. Most recently, the parties filed cross-motions for summary judgment on the plaintiff's First Amendment claims against the defendant. Davis, 51 F.Supp.3d at 114–115, 2014 WL 2882679, at *10. With a more developed factual record than was available to the Court at the time it denied the plaintiff's first motion for preliminary injunctive relief, the Court denied both parties' summary judgment motions, concluding that there were a myriad of factual disputes which precluded the Court from granting summary judgment to either party. See id. at 114–123, at *10–16. Further, the Court determined that should the plaintiff prevail on his First Amendment claims, he would be entitled to neither back pay nor front pay. Id. at 109–112, at *6–8. The Court, however, left open the possibility that reinstatement into the plaintiff's former position could be an appropriate form of relief. Id. at 111–115, at *8–10.

Against the background just described, the plaintiff has again requested that the Court award him preliminary injunctive relief that would require the defendant to reemploy him. Mot. at 1. And as already noted, this time, the plaintiff seeks either instatement into the vacant position of the Deputy Assistant Director of the Congressional Research Service's Foreign Affairs, Defense and Trade Division (“Deputy Assistant”), or alternatively, that the Court prohibit the defendant from filling this vacancy until this litigation is completed. Id. at 1, 4. The defendant opposes both requests. See Opp'n at 4.

A. Legal Standard

A preliminary injunction is “an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (internal quotation marks and citation omitted). “The power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C.Cir.1969) (internal quotation marks omitted). “To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Chaplaincy, 454 F.3d at 297.

The District of Columbia Circuit has applied a “sliding-scale approach” in evaluating the preliminary injunction factors.5 See, e.g., Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C.Cir.2011). Under this analysis,

[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success. Alternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other.

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C.Cir.2009) (internal quotation marks and citations omitted).

B. Analysis
1. Substantial Likelihood of Success on the Merits

The plaintiff incorporates by reference previous arguments the Court has already considered regarding the merits of the plaintiff's remaining First Amendment claims. See Mot. at 5. Specifically, the plaintiff argues that because the Court found in favor of the plaintiff on this factor when considering the plaintiff's first motion for a preliminary injunction, and because these First Amendment claims survived the defendant's motion for summary judgment, the plaintiff has demonstrated a substantial likelihood of success on the merits. See id. Ignoring whether such a simplistic argument is even sufficient for the plaintiff to meet the burden of persuasion on this factor, the Court does not agree that its prior rulings in this case compel it to now conclude that the plaintiff has a substantial likelihood of success with respect to the First Amendment claims.

“Because a preliminary injunction is an extraordinary and drastic remedy, ... the [party] seeking to invoke such stringent relief is obliged to establish a clear and compelling legal right thereto based upon undisputed facts.” In re Navy Chaplaincy, 928 F.Supp.2d 26, 36 (D.D.C.) (internal citations and quotation marks omitted), aff'd, 738 F.3d 425 (D.C.Cir.2013). “If the record presents a number of disputes regarding the inferences that must be drawn from the facts in the record, the [C]ourt cannot conclude that [the] plaintiff has demonstrated a substantial likelihood of success on the merits.” Id. (internal quotation marks omitted) (citing cases); see also Bancoult v. McNamara, 227 F.Supp.2d 144, 152 (D.D.C.2002) (denying preliminary injunction where “the parties hotly dispute [d] certain basic points”); Tarpley v. Laird, No. 1300–cv–72, 1972 WL 212, at *1 (D.D.C. Sept. 25, 1972) (denying preliminary injunction where “the record is ambiguous at best”).

Here, in considering the parties' cross-motions for summary judgment on the plaintiff's First Amendment claims, the Court found that many outstanding factual disputes existed, and thus denied both parties' motions. Davis, 51 F.Supp.3d at 114–123, 2014 WL 2882679, at *10–16. With factual disputes yet to be tested and potentially resolved on further motions for summary judgment following the completion of discovery,6 or at trial, it follows that the plaintiff, at best, has an equal chance of succeeding as he does losing on his First Amendment claims. This falls well short of demonstrating a substantial likelihood of success on the merits. See In re Navy Chaplaincy, 928 F.Supp.2d at 36. Accordingly, the Court finds that this factor does not weigh in favor of the plaintiff.

2. Irreparable Harm

The plaintiff contends that the Court's failure to award preliminary injunctive relief will...

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