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Davis v. Billington

United States District Court, D. Columbia.

December 19, 2014

MORRIS D. DAVIS, Plaintiff,
v.
JAMES H. BILLINGTON, in his official capacity as the Librarian of Congress, Defendant

Page 60

For MORRIS D. DAVIS, Plaintiff: Brian M. Hauss, Lee Rowland, LEAD ATTORNEY, PRO HAC VICE, AMERIAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY; Lee B Rowland, LEAD ATTORNEY, NYU LAW SCHOOL, New York, NY; Alexander Abdo, PRO HAC VICE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY; Arthur B. Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC; Frederick V. Mulhauser, AMERICAN CIVIL LIBERTIES UNION, Washington, DC.

For JAMES HADLEY BILLINGTON, in his official capacity as the Librarian of Congress, Defendant: Christopher R. Hall, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, FEDERAL PROGRAMS BRANCH, CIVIL DIVISION, Washington, DC.

Page 61

MEMORANDUM OPINION

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

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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.

I. BACKGROUND

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, 401 U.S.App.D.C. 46 (D.C. Cir. 2012) (same); see also Davis v. Billington, 51 F.Supp.3d 97, 104, 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 119, 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, 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

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Court from granting summary judgment to either party. See Id. 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 *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 *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 ...


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