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James H. Billington, In His Official Capacity As the Librarian of v. Morris S. Davis

March 30, 2011


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Morris S. Davis, brings this action against James H. Billington, the Librarian of Congress, in his official capacity, and Daniel P. Mulhollan, the director of the Congressional Research Service ("CRS"), in his individual capacity, alleging that the defendants violated his First and Fifth Amendment rights. Complaint ("Compl.") ¶¶ 78-85. On October 14, 2010, the Court denied the Defendants' Motion to Stay Litigation Except as to the Individual Capacity Defenses of Daniel P. Mulhollan ("Defs.' Mot. to Stay"), and stated that the reasons for its denial would be explained in a forthcoming memorandum opinion.*fn1 Civil Action 10-0036 (RBW), October 14, 2010 Order. This is that Memorandum Opinion. This Memorandum Opinion also addresses the Motion to Dismiss on Behalf of Defendant Daniel P. Mulhollan ("Def. Mulhollan's Mot. to Dismiss"), and the Motion to Dismiss on Behalf of Defendant James Billington ("Def. Billington's Mot. to Dismiss"), both of which remain pending before the Court and are opposed by the plaintiff.*fn2

In this Memorandum Opinion, the Court first further explains why it denied the motion for a partial stay, and then will address the motions to dismiss, which collectively raise three principal arguments in favor of dismissal: First, that the plaintiff cannot state a claim for damages against defendant Mulhollan in his individual capacity; second, that the plaintiff fails to state a claim under either the First or Fifth Amendments; and third, that defendant Mulhollan is entitled to qualified immunity as to the plaintiff's constitutional claims. The ensuing pages explain both the Court's earlier denial of the motion to stay and now its denial of both motions to dismiss.


Between September 2005 and October 2007, the plaintiff, who at that point in his career had achieved the rank of Colonel in the United States Air Force, served as the Chief Prosecutor for the Department of Defense's Office of Military Commissions. Compl. ¶ 2. In this position, he oversaw the prosecution of suspected terrorists held at the Guantanamo Bay Naval Base ("Guantanamo Bay") in Cuba. Id. Believing that the military commissions system had become "fundamentally flawed," id., the plaintiff resigned from his position as Chief Prosecutor in October 2007, id., and retired from his position as a military officer at that same time, id. ¶ 12. He has since become a "vocal and highly public critic of the system, speaking, writing[,] and testifying to Congress about his personal views and firsthand experiences." Id. ¶ 2.

A.The Plaintiff's Hire by the Library of Congress

In December of 2008, the Library of Congress (the "Library") hired the plaintiff as its Assistant Director of the Foreign Affairs, Defense and Trade Division (the "FADTD" or the "plaintiff's division") of the CRS. Id. ¶¶ 3, 26. The CRS is the public policy research arm of the United States Congress and a service unit of the Library. Id. ¶ 14. In his position as Assistant Director of the FADTD, the plaintiff represents that his "primary responsibilities were to lead, plan, direct, and evaluate the research and analytical activities in the policy areas assigned to his division, which included matters relating to foreign affairs, the Defense Department, and international trade and finance, but not issues related to military commissions." Id. ¶ 29. According to the plaintiff, "sole responsibility for topics relating to the military commissions system and the prosecution of the individuals held at Guantanamo [Bay] belongs to the American Law Division" and "[m]embers of Congress and their staffs know that [the American Law Division] is the division responsible for military-commission-related issues." Id. ¶¶ 31-32. The plaintiff also asserts that, within his division, he "had no authority to establish policy, and he had little opportunity for significant contact with the public." Id. ¶ 29. He therefore contends that he was "not expected to and did not author written reports or analyses on behalf of [the CRS,]" and that "[h]is name has not appeared on any reports distributed to Congress. Nor have any congressional inquiries or requests for information been directed to him." Id. ¶ 29.

B.The Plaintiff's Opinion Articles

On November 11, 2009, both the Wall Street Journal and the Washington Post published articles written by the plaintiff that "reflect[ed] his personal views regarding Guantanamo [Bay] and the military commissions process." Id. ¶¶ 43-44, 50. These articles relied exclusively on the plaintiff's professional experiences prior to his employment with the CRS. Id. ¶ 50. According to the plaintiff, neither of these articles criticized Congress, any Member of Congress, any political party, or positions associated exclusively with one political party, nor did they criticize the CRS, the Library, or any of their employees or policies. Id. ¶¶ 47, 50. Rather, the plaintiff contends that the "opinion pieces relate[d] to subjects of immense public concern . . . for the foreseeable future," as they discussed the then-current policies of "President Obama and Attorney General Eric Holder . . . with respect to [future announcements concerning additional decisions about] the military-commission or federal-court trial of other Guantanamo [Bay] detainees." Id. ¶ 45. The plaintiff wrote the articles at his home, away from his workplace during non-working hours, and he did not receive any form of compensation for their authorship.

Id. ¶¶ 48-49. The plaintiff also indicates that, although he previously engaged in speech similar to that at issue here, he was not reprimanded by either defendant in any way prior to the two articles being published on November 11, 2009. Id. ¶¶ 33-42.

The plaintiff had informed defendant Mulhollan that his articles would be published prior to their publication, and after Mulhollan had the opportunity to review them, Mulhollan sent multiple emails to the plaintiff expressing his dissatisfaction with the plaintiff's actions. Id. ¶¶ 53-54. The day after the articles' publication, on November 12, 2009, Mulhollan told the plaintiff in a meeting that he would not be converted from probationary status to permanent status, as had been the planned development of the plaintiff's employment with the CRS prior to the November 11, 2009 publications. Id. ¶ 55. On November 13, 2009, Mulhollan again called the plaintiff into a meeting and served him with a Memorandum of Admonishment in response to the publication of the two November 11, 2009 articles. Id. ¶¶ 56-57. Mulhollan's last alleged act of retaliation occurred on November 20, 2009, when he informed the plaintiff that, because the plaintiff had written the opinion articles, he would be reassigned to work temporarily as Mulhollan's Special Advisor beginning on December 21, and that thirty days thereafter he would be separated entirely from the CRS. Id. ¶¶ 58-59. Although the plaintiff filed suit on January 8, 2010, Def. Mulhollan's Mem. at 5, which was prior to the expiration of his thirty days as Mulhollan's Special Advisor, subsequent filings with the Court indicate that the expected and allegedly retaliatory acts described in the plaintiff's complaint-namely the complete separation from the CRS-did in fact ultimately occur. See Pl.'s Opp'n to Stay at 1-3.

C.The Library's Regulations

The Library's internal personnel regulations generally encourage employees to speak and write publicly and they do not restrict employees from engaging in public discourse when discussing issues not within an employee's area(s) of specialty. Compl. ¶¶ 65-67 (citing Library of Congress Regulation ("LCR") 2023-3 § 3(A) - (B)). However, when speaking on "controversial matters," the regulations dictate that Library employees should "explicitly disassociate" themselves from the Library and "their official positions," but such statements made by employees are not subject to prior review.*fn4 Id. ¶¶ 66-67 (citing LCR-2023-3 § 3(A) - (B)). Additionally, the Library's regulations state that "where an employee's writing relates to library science, the administration or policies of the Library, matters relating to an employee's official duties or responsibilities, or matters specifically addressing Members of Congress, the employee is expected to, among other things, "'assure, when appropriate, that staff members' opinions clearly differentiate from Library policy.'" Id. ¶ 67 (quoting LCR-2023-3 § 3(B)).

In 2004, defendant Mulhollan issued a statement clarifying the Library's regulations as applied to the CRS, which has since been adopted as policy and is implemented and enforced by defendant Mulhollan. Id. ¶ 68. This clarification, entitled Outside Speaking and Writing, encourages Library employees to submit their authored works for prior review and provides that employees are responsible for using "sound judgment in deciding when engagement in an outside activity may place the reputation of [the CRS] at risk." Id. ¶¶ 69-71. However, the term "sound judgment" is neither defined nor discussed, which the plaintiff alleges affords "the Library and [the CRS] unfettered discretion to determine which speech to punish." Id. ¶¶ 71, 76.


The defendants requested that this Court issue "an order staying [this] action except as to [the] litigation of Director Mulhollan's individual capacity defenses, including both qualified immunity and statutory bars to [the plaintiff's] Bivens claims for damages against Director Mulhollan." Defs.' Mot to Stay at 2. As noted above, however, this Court denied that request on October 14, 2010. Davis v. Billington, et al., No. 10-0036 (RBW) (D.D.C. Oct. 14, 2010).

A.Standard of Review

Upon balancing the competing interests of the parties, a court has inherent power to stay proceedings on its docket. Feld Entm't v. Am. Soc'y for the Prevention of Cruelty to Animals, 523 F. Supp. 2d 1, 2-3 (D.D.C. 2007). "The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 879 n.6 (1998) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). In determining whether to grant a stay, "the [C]court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side." Gordon v. FDIC, 427 F.2d 578, 580 (D.C. Cir. 1980). The party requesting a stay must make out a "clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else." Feld Entm't, 523 F. Supp. 2d at 3 (quoting Landis, 299 U.S. at 255).

B.Legal Analysis

As noted above, the defendants sought "an order staying [this] action except as to [the] litigation of Director Mulhollan's individual capacity defenses." Defs.' Mot. to Stay at 2. As grounds for this request, defendant Mulhollan argued that he is shielded "from both liability and the burdens of litigation" by the doctrine of qualified immunity, id. at 4, and he asserted that "were [the] plaintiff permitted to embark upon discovery as to Dr. Billington and the Library, it would have an immediate and direct effect on [him], his qualified immunity defense, and his right not to participate in discovery until the Court has ruled on his motion to dismiss." Id. at 6. In other words, defendant Mulhollan maintains that "for the protections of [qualified immunity] to be meaningful to [him], litigation should be stayed as to the Library pending the outcome of [his motion to dismiss]." Defs.' Reply to Stay at 4.

The plaintiff opposed the motion to stay, asserting that the defendants were "attempt[ing] to expand the qualified immunity doctrine to stay all litigation of all claims against all defendants, including defendants for whom qualified immunity is not available." Pl.'s Opp'n to Stay at 3. And the plaintiff argued that because defendant Billington has been sued in his official capacity as the Librarian of Congress he is not protected by qualified immunity, and he must therefore respond to the plaintiff's Complaint. Id. The plaintiff further objected to the timing of the motion to stay, noting that "the Supreme Court . . . has focused on the individual-capacity defendant's right to avoid peculiarly disruptive proceedings like 'unnecessary and burdensome discovery or trial proceedings,' which necessarily occur only after the defendant has filed a response to the plaintiff's complaint." Id. at 4 (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

"Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callhan, 555 U.S. 223, __, 129 S.Ct. 808, 815 (2009). Qualified immunity is "an immunity from suit rather than a mere defense to liability." Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). A district court "must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings." Crawford-El, 523 U.S. at 597-98. The Supreme Court has "repeatedly stressed . . . the importance of resolving immunity questions at the earliest possible stage in litigation." Pearson, 555 U.S. at __, 129 S.Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). It must be remembered, however, that qualified immunity is not a right to immunity "from litigation in general." Behrens v. Pelletier, 516 U.S. 299, 312 (1996).

Here, the defendants' motion to stay was premature, overly encompassing, and did not demonstrate a clear case of hardship. First, although defendant Mulhollan had filed a pre-answer motion to dismiss, defendant Billington had not yet responded to the plaintiff's Complaint with an answer or any other form of responsive pleading or motion permissible under the Federal Rules of Civil Procedure. Pl.'s Oppn' to Stay at 3; see Fed. R. Civ. P. 8(b)-(c), 12 (b). While the defendants cited ample case authority supporting the issuance of a stay of discovery pending resolution of the qualified immunity issue, see Defs.' Mot to Stay at 5 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("[u]ntil this threshold immunity question is resolved, discovery should not be allowed,") and Behrens, 516 U.S. at 308 (1996) (qualified immunity "is meant to give government officials a right, not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery")) (emphasis added), as the plaintiff aptly noted, the defendant did not cite any authority to support the extension of qualified immunity to the pleading stage. Pl.'s Opp'n to Stay at 8. The Court was similarly unable to find authority supporting a pre-answer or dispositive motion stay of litigation.*fn5 Because this litigation was only in the infancy of the pleading ...

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