Davis v. Billington

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
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MORRIS D. DAVIS, )
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Plaintiff, )
)
v. ) Civil Action No. 10-00036 (RBW)
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JAMES H. BILLINGTON, in his official )
capacity as the Librarian of Congress, )
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Defendant. )
_______________________________________)
MEMORANDUM OPINION
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’ submissions 1 and their oral arguments presented to the Court on March 26, 2014, the
1
In addition to those already identified, the Court considered the following filings by the parties in reaching its
decision: (1) the Memorandum in Support of Defendant’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction
or, in the Alternative, for Summary Judgment (“Def.’s Mem.”); (2) the defendant’s Statement of Material Facts as to
Which There is no Genuine Issue (“Def.’s Stmt.”); (3) the Memorandum in Opposition to Defendant’s Motion to
Dismiss or for Summary Judgment and in Support of Plaintiff’s Motion for Summary Judgment (“Pl.’s Mem.”); (4)
the plaintiff’s Statement of Material Facts as to Which There is no Genuine Issue (“Pl.’s Stmt.”); (5) the plaintiff’s
Statement of Material Facts in Dispute (“Pl.’s Disputed Facts”); (6) the Reply in Support of Defendant’s Motion to
Dismiss for Lack of Subject-Matter Jurisdiction or, in the Alternative, for Summary Judgment and Opposition to
Plaintiff’s Cross-Motion for Summary Judgment (“Def.’s Reply”); (7) the Defendant’s Response to Plaintiff’s
Statement of Material Facts to Which There is no Genuine Issue (“Def.’s Resp. Stmt.”); and (8) the Reply
Memorandum in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Reply”).
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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.
I. BACKGROUND
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 (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.
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“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,
2
As the Court discusses below, the parties dispute whether the Foreign Affairs, Defense, and Trade Division
additionally has responsibilities concerning military commissions and/or Guantánamo Bay. Compare Pl.’s Stmt. ¶ 4
and Pl.’s Disputed Facts ¶ 1, with Def.’s Stmt. ¶ 4 and Def.’s Resp. Stmt. ¶ 4.
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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.
II. STANDARDS OF REVIEW
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 (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
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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 (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). 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
(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 (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. 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).
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III. LEGAL ANALYSIS
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 (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 Civil Service
Reform Act of 1978 (“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in
scattered sections of 5 U.S.C.), was intended to preclude district court jurisdiction over certain
claims, regardless of the constitutional implications of those claims. See __ U.S. at __, 132 S.
Ct. at 2140. In that case, the petitioners were “former federal competitive service employees”
who failed to comply with the Military Selective Service Act’s requirement that “male citizens
and permanent-resident aliens of the United States between the ages of 18 and 26 . . . register for
the Selective Service.” Id. at __, 132 S. Ct. at 2131. The petitioners were thus discharged by
their federal agency employers pursuant to 5 U.S.C. § 3328, which “bars from employment by an
Executive agency anyone who has knowingly and willfully failed to register” under the Military
Selective Service Act. Id. One of the petitioners, Michael Elgin, appealed to the Merit Systems
Protection Board (“MSPB”), arguing “that Section 3328 is an unconstitutional bill of attainder
and unconstitutionally discriminates on the basis of sex when combined with the registration
requirement of the Military Selective Service Act.” Id. An administrative law judge held that
the MSPB lacked the authority to consider the constitutionality of a federal statute and thus
dismissed the case for lack of jurisdiction. Id. Rather than appeal the ruling to the full MSPB or
the United States Court of Appeals for the Federal Circuit, Elgin and the other petitioners filed a
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civil lawsuit challenging their dismissal in the United States District Court for the District of
Massachusetts. Id.
The case eventually made its way to the Supreme Court. In reaching its conclusion that
the CSRA precluded federal district courts from entertaining the petitioners’ claims, the Supreme
Court looked to the standard it had announced in Thunder Basin Coal Co. v. Reich, 510 U.S. 200
(1994). See id. at __, 132 S. Ct. at 2133. In Thunder Basin, the Court stated that
[i]n cases involving delayed judicial review of final agency actions, we shall find
that Congress has allocated initial review to an administrative body where such
intent is “fairly discernible in the statutory scheme.” Whether a statute is intended
to preclude initial judicial review is determined from the statute’s language,
structure, and purpose, its legislative history, and whether the claims can be
afforded meaningful review.
510 U.S. at 207 (footnote and citations omitted). The Thunder Basin Court noted further in a
footnote that, because the statute at issue in that case provided for judicial review in another
forum, “‘the strong presumption that Congress did not mean to prohibit all judicial review’” was
not implicated. Id. at 207 n.8 (citations omitted). The Elgin Court, in turn, observed that “[l]ike
the statute in Thunder Basin, the CSRA does not foreclose all judicial review of petitioners’
constitutional claims, but merely directs that judicial review shall occur in the Federal Circuit,”
which “is fully capable of providing meaningful review of [the] petitioners’ claims.” Elgin, __
U.S. at __, 132 S. Ct. at 2132. Thus, the Elgin Court asked “whether it is ‘fairly discernible’
from the CSRA that Congress intended covered employees appealing covered agency actions to
proceed exclusively through the statutory review scheme, even in cases in which the employees
raise constitutional challenges to federal statutes,” id. at __, 132 S. Ct. at 2132-33, a question that
it answered in the affirmative, id. at __, 132 S. Ct. at 2134, 2140.
The case currently before this Court concerns constitutional claims raised by a federal
probationary employee in the excepted service, and is therefore somewhat distinct from Elgin,
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which addressed constitutional claims raised by federal non-probationary competitive service
employees. See __ U.S. at __, 132 S. Ct. at 2131. So while the analysis in Elgin is potentially
instructive, this Court must first determine whether the CSRA provides for meaningful judicial
review of constitutional claims brought by federal probationary employees in another forum.
See Thunder Basin, 510 U.S. at 207 & n.8. To be sure, certain CSRA remedies, including the
individual right to directly petition the MSPB with respect to allegations of prohibited
employment practices, are available only to employees who, unlike the plaintiff here, “meet
certain requirements regarding probationary periods and years of service.” Elgin, __ U.S. at __,
132 S. Ct. at 2130. The other, indirect methods for challenging prohibited employment practices
are limited to allegations that an “agency” has engaged in “a prohibited personnel practice.” See
5 U.S.C. § 1214 (a)(1)(A). And the Federal Circuit has held that, “[a]ccording to section 2302, a
‘personnel action’ may be considered a ‘prohibited personnel practice’ only if it occurs within an
‘agency’ as that word is defined.” Booker v. Merit Sys. Prot. Bd., 982 F.2d 517, 519 (Fed. Cir.
1992). Section 2302, in turn, excludes the Library of Congress from the definition of “agency.”
See § 2302(a)(2)(C) (defining “agency” as an “Executive agency and the Government Printing
Office” (emphasis added)); see also Davis, 681 F.3d at 384 (observing that the Library of
Congress is a non-Executive agency). Thus, even the limited protections provided by chapter 12
are unavailable to the plaintiff.
The case before this Court thus presents the following quandary: does the CSRA’s
complex remedial scheme completely deprive individuals in the plaintiff’s position—
probationary employees in non-Executive agencies—from challenging in this Court the
constitutionality of agency policies that lead to the termination of their employment? The
Supreme Court has emphasized repeatedly that “where Congress intends to preclude judicial
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review of constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592,
603 (1988) (citing Johnson v. Robison, 415 U.S. 361, 373-74 (1974)). Courts “require this
heightened showing in part to avoid the ‘serious constitutional question’ that would arise if a
federal statute were construed to deny any judicial forum for a colorable constitutional claim.”
Id. (citing Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986)); cf.
Elgin, __ U.S. at __, 132 S. Ct. at 2132 (“Webster’s standard does not apply where Congress
simply channels judicial review of a constitutional claim to a particular court.”).
As this Circuit has recognized and “[a]s the Supreme Court has made clear, in most
instances the judgment has been that Congress, not the judicial branch, is in the best position to
prescribe the scope of relief available for the violation of a constitutional right.” Davis, 681 F.3d
at 381. But “time and again this [Circuit] has affirmed the right of civil servants to seek
equitable relief against their supervisors, and the agency itself, in vindication of their
constitutional rights,” Spagnola v. Mathis, 859 F.2d 223, 229-30 (D.C. Cir. 1988) (citing cases);
see also id. at 230 n.13 (limiting judicial review to constitutional claims), and has “held that the
district courts are open to challenges seeking equitable relief on constitutional grounds, at least
where the CSRA does not provide an adequate alternative route to judicial review,” Suzal v. Dir.,
U.S. Info. Agency, 32 F.3d 574, 586 (D.C. Cir. 1994) (citing cases). Indeed, the Supreme Court,
in analyzing whether the CSRA’s comprehensive remedial scheme could accommodate the
constitutional claims of the Elgin petitioners, was careful to limit its discussion of the exclusivity
of the CSRA’s scheme for constitutional claims to “covered employees appealing covered
agency actions . . . , even in cases in which the employees raise constitutional challenges to
federal statutes.” Elgin, __ U.S. at __, 123 S. Ct. at 2133. The Court emphasized that “the
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CSRA does not foreclose all judicial review of petitioners’ constitutional claims, but merely
directs that judicial review shall occur in the Federal Circuit.” Id. at __, 132 S. Ct. at 2132.
Here, the plaintiff does not have access to the Federal Circuit through an appeal of a
decision resulting from the CSRA administrative process, because he is not entitled to
administrative review under the CSRA in the first place. See Davis, 681 F.3d at 388. Nor can he
obtain damages under Bivens, as no such remedy exists for probationary non-Executive agency
employees. Id. However, unless it is clear that Congress intended to preclude all judicial review
of colorable constitutional claims, see Webster, 486 U.S. at 603, the Court cannot find that it
does not have jurisdiction over the plaintiff’s claim for two reasons. First, the Supreme Court
has indicated that “when Congress intends to bar judicial review altogether, it typically employs .
. . unambiguous and comprehensive” language. Lindahl v. Office of Personnel Mgmt., 470 U.S.
768, 779-80 (1985). In a footnote illustrating this point, the Lindahl Court referenced the
language of 5 U.S.C. § 8128(b), which addresses compensation for work injuries and states:
The action of the Secretary [of Labor] or his designee in allowing or denying a
payment under this subchapter is—(1) final and conclusive for all purposes and
with respect to all questions of law and fact; and (2) not subject to review by
another official of the United States or by a court by mandamus or otherwise.
Id. at 780 & n.13 (quoting 5 U.S.C. § 8128(b)). The Court provided as a further example the
statutory language of 38 U.S.C. § 211(a), which addresses benefits for veterans and provides that
[t]he decisions of the Administrator on any question of law or fact under any law
administered by the Veterans’ Administration providing benefits for veterans and
their dependents or survivors shall be final and conclusive and no other official or
any court of the United States shall have power or jurisdiction to review any such
decision by an action in the nature of mandamus or otherwise.
Id. (quoting 38 U.S.C. § 211(a)). There is no similar language in the CSRA definitively barring
the plaintiff’s constitutional claims from review by a district court. Moreover, this Circuit has
explicitly stated that “the district courts are open to challenges seeking equitable relief on
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constitutional grounds, at least when the CSRA does not provide an adequate alternative route to
judicial review.” Suzal, 32 F.3d at 586. And in this case, the Circuit stated that the plaintiff “can
. . . file[] a claim for injunctive relief for the alleged constitutional violations.” Davis, 681 F.3d
at 388 n.1.
At bottom, the Court is unconvinced that the Supreme Court’s Elgin decision has any
effect other than to route the constitutional claims of civil servants who already have an
administrative remedy to the Federal Circuit. That Congress intentionally barred probationary
non-Executive agency employees from the CSRA’s administrative remedial scheme does not
thereby indicate that Congress intended to completely bar from judicial review colorable
constitutional claims filed by those same employees. Rather, in order “to avoid the ‘serious
constitutional question’ that would arise if . . . [the] statute were construed to deny any judicial
forum for a colorable constitutional claim,” Webster, 486 U.S. at 603, and in keeping with the
longstanding law of this Circuit that favors permitting plaintiffs the opportunity to bring
constitutional claims for injunctive relief in the district court, the Court finds that the CSRA does
not bar this Court’s jurisdiction to address the plaintiff’s constitutional claims. The Court
therefore denies the defendant’s motion to dismiss the plaintiff’s claims for lack of subject matter
jurisdiction.
B. Whether the Court has Jurisdiction to Award any of the Requested Relief
The defendant argues that the Court must dismiss this case because “reinstatement is not
an available remedy” and because the “[p]laintiff’s requests for front pay, back pay, and any
other form of money damages are barred by” sovereign immunity. Def.’s Mem. at 9. As the
defendant correctly notes, “[i]f the Court ‘cannot grant any of the relief sought by [the plaintiff],
a decision of this court would be an advisory opinion barred by Article III of the Constitution.’”
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Id. at 10 (citing James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996)).
The Court must therefore assess whether it can award any of the requested relief.
1. The Plaintiff’s Request for Front Pay
As to the plaintiff’s request for front pay, see Compl., Prayer for Relief, the defendant
correctly notes that the plaintiff “never even address[es] the topic” in his opposition to the
defendant’s motion to dismiss. Def.’s Reply at 1. The Court therefore deems this argument
conceded and need not address it. See Lewis v. District of Columbia, No. 10-5275, 2011 WL
321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam) (“‘It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.’”) (quoting Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003), aff’d, 98 F. App’x. 8 (D.C. Cir. 2004)).
2. The Plaintiff’s Request for Back Pay
The defendant argues that back pay is not available to the plaintiff because the United
States has not waived its sovereign immunity for claims like those advanced in this case. Def.’s
Mem. at 18. The plaintiff counters that the Court may award him damages under the Back Pay
Act, 5 U.S.C. § 5596(b)(1) (2006). Pl.’s Mem. at 13.
The Back Pay Act provides that certain federal employees who successfully challenge
“unjustified or unwarranted personnel action[s] which . . . resulted in the withdrawal or reduction
of all or part of the pay . . . of the employee[s] . . . [are] entitled, on correction of the personnel
action” to some or all of the back pay to which the employees are entitled, as well as reasonable
attorney fees. See § 5596(b)(1). However, as the Sixth Circuit explained,
[u]nder [United States v.] Fausto, [484 U.S. 439, 455 (1988),] where a
comprehensive remedial scheme exists to address agency adverse actions, and
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Congress has clearly indicated that no judicial review is available, an individual
may not choose other federal statutory avenues to obtain review. The CSRA
established a comprehensive system for reviewing personnel action taken against
federal employees. Its deliberate exclusion of employees in respondent’s service
category from the provisions establishing administrative and judicial review for
personnel action of the sort at issue here prevents respondent from seeking review
in the Claims Court under the Back Pay Act.
Fligiel v. Samson, 440 F.3d 747, 752 (6th Cir. 2006) (citations and quotation marks omitted); see
also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1067 (9th Cir. 2008) (same). And in
Elgin, the Supreme Court reiterated that “the CSRA’s integrated scheme of administrative and
judicial review for aggrieved federal employees was designed to replace an outdated patchwork
of statutes and rules that afforded employees the right to challenge employing agency actions in
district courts across the country.” Elgin, __ U.S. at __, 132 S. Ct. at 2135 (citing and quoting
Fausto, 484 U.S. at 444-45) (internal quotation marks omitted). Moreover, as this Circuit has
stated with respect to the plaintiff in this case, “the CSRA includes a comprehensive remedial
scheme evincing a considered judgment of Congress that certain remedies are not warranted,
including the damages remedy Davis seeks for alleged constitutional violations.” Davis, 681
F.3d at 388 (internal citations and quotation marks omitted).
“The doctrine of sovereign immunity shields the government from liability for . . . [back
pay] payments, except when waived by statute” and “any waiver of sovereign immunity must be
strictly construed in favor of the government.” Trout v. Sec’y of Navy, 540 F.3d 442, 443 (D.C.
Cir. 2008) (citations omitted). Here, although the plaintiff’s claims appear to fit the bill of the
Back Pay Act, it is clear that his claims are excluded from the comprehensive remedial scheme
of the CSRA. In other words, “Congress consciously, ‘not inadvertently’ omitted remedies for
civil-service members employed in or under the Library of Congress.” Davis, 681 F.3d at 386.
And where Congress has, in one comprehensive, specific statute, namely the CSRA, chosen not
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to waive sovereign immunity for the plaintiff’s claims, it would be illogical for the Court to find
that another, more general statute, like the Back Pay Act, constitutes a waiver of sovereign
immunity for the very same claims. Cf. Brown v. Sec’y of Army, 918 F.2d 214, 218 (D.C. Cir.
1990) (“[A] remedial framework inconsistent with the structure of Title VII is preempted by that
Title.”).
The Court’s conclusion that the Back Pay Act is inapplicable here does not conflict with
its earlier holding that Congress did not intend to completely foreclose civil servants in the
plaintiff’s position from seeking injunctive relief in district courts for colorable constitutional
claims. As this Circuit has stated, “back pay or lost wages traditionally have been viewed as
money damages and not specific relief.” Hubbard v. EPA, 949 F.2d 453, 470 (D.C. Cir. 1991).
Thus, although the plaintiff may seek and, if ultimately successful in this lawsuit, receive
injunctive relief, he is not entitled to money damages. See Davis, 681 F.3d at 388 & n.1.
3. The Plaintiff’s Request for Reinstatement
In arguing that reinstatement would be an unavailable remedy in this case, the defendant
relies principally on the after-acquired evidence rule. Def.’s Mem. at 10. Under this rule,
reinstatement is generally an inappropriate remedy “if the employer has after-acquired evidence
of wrongdoing ‘of such severity that the employee in fact would have been terminated on those
grounds alone if the employer had known of it at the time of the discharge.’” Kapche v. Holder,
677 F.3d 454, 464-65 (D.C. Cir. 2012) (quoting McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 362-63 (1995)). This is because “[i]t would be both inequitable and pointless to order
the reinstatement of someone the employer would have terminated, and will terminate, in any
event and upon lawful grounds.” McKennon, 513 U.S. at 362. In order to establish the defense,
an employer must show that it “would have discharged the employee because of the misconduct,
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not simply that it could have done so.” Frazier Indus. Co. v. NLRB, 213 F.3d 750, 760 (D.C.
Cir. 2000); see also Kapche, 677 F.3d at 466. And “[t]o do so, [the defendant] must establish
‘that [the employer’s] practice has been to dismiss employees for similar [conduct].’” Kapche,
677 F.3d at 466 (quoting Frazier Indus., 213 F.3d at 760) (some alterations in original). The
Circuit has indicated that affidavits or testimony, together with “company policy” and “common
sense,” are sufficient to establish that an employer would have terminated an employee for the
conduct at issue. See id. at 467 (citing O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d
756, 762 (9th Cir. 1996)).
Here, the defendant advances his after-acquired evidence argument with respect to the
following three courses of conduct by the plaintiff: (1) failure to maintain the confidentiality of
certain records; (2) mishandling of federal records; and (3) “demonstrated [] lack of honesty and
candor.” Def.’s Mem. at 11-15. He contends that the “[p]laintiff’s wholesale destruction of
records, removal and use of confidential CRS information, and false statements would have led
to his discharge even had he never published the opinion pieces.” Id. at 15. In particular, the
defendant asserts that the “[p]laintiff forwarded three batches of dozens of e-mails and other
documents from his CRS e-mail to his personal e-mail account.” Id. at 14 (citing Def.’s Mem.,
Ex. E (Emails from “Morris Davis” to “col.morris.davis@gmail.com”) at 2-4. The defendant
further asserts that the plaintiff “converted thousands of [g]overnment files from the Library into
his private possession” on the same day that he submitted a certification attesting that “he had no
‘[g]overnment property, correspondence, or records.’” Id. (citing Def.’s Mem., Ex. K (Davis
Library of Congress Separation Clearance Form)).
However, the nature of the documents that the plaintiff took with him when he departed
from the Library is less clear than the Library contends, and the plaintiff asserts that the deletion
15
of the emails and documents was not intentional. The defendant cites to a declaration previously
submitted by the plaintiff, see Def.’s Mem. at 12 (citing ECF 68-2 (Declaration of Morris D.
Davis (“2012 Davis Decl.”) ¶¶ 20-24)), in which the plaintiff acknowledges that he copied some
documents and emails onto a “thumb drive,” and deleted others. But what the defendant
characterizes as “deleting thousands of electronic files from their proper repository on a
government computer, and moving sensitive and potentially privileged files into his private
possession,” id., overstates the plaintiff’s admissions. First, the plaintiff stated that, “[b]ecause
of [his] position as an Assistant Director at CRS, [he] did not personally create or draft very
many documents during [his] time at CRS, other than emails.” ECF 68-2 (2012 Davis Decl.) ¶
14. He further states that, “[a]s a result, [he] did not have very many documents on [his] CRS
computer, other than emails.” Id. Moreover, the plaintiff asserted that his copying and deletion
of emails and other documents was consistent with his past practices in prior government
employment, id. ¶¶ 7-9, and that he received no instructions to the contrary upon beginning his
employment with the Library, id. ¶ 12. Finally, while the plaintiff admits to taking the emails
and documents, he does not characterize any of the information that he took with him as
confidential. See generally ECF 68-2 (2012 Morris Decl.).
To support his contention that the plaintiff’s actions would nonetheless have led to his
discharge, the defendant proffers affidavits from four current and former CRS employees. See
generally Def.’s Mem., Exhibits (“Exs.”) A (Declaration of Daniel Mulhollan (“Mulhollan
Decl.”)), B (Declaration of Mary Mazanec (“Mazanec Decl.”)), C (Declaration of Karen Lewis
(“Lewis Decl.”)), D (Declaration of Richard Ehlke (“Ehlke Decl.”)). But while each of these
affidavits describes serious misconduct and provides some support for the notion that, on the
basis of the after-acquired evidence, the Library “would have discharged the [plaintiff],” Frazier
16
Indus., 213 F.3d at 760 (emphasis removed), there is no other indication in the record currently
before the Court regarding how the Library would have treated an employee who behaved in the
same manner as the plaintiff. For example, the defendant has presented no proof of an agency
policy indicating that the plaintiff’s conduct “would have,” as opposed to “could have,” resulted
in dismissal from the Library. See Frazier Indus., 213 F.3d at 760-61 (finding that employment
application which stated that “false information, omissions, or misrepresentations may result in a
discharge of the employee” was insufficient to establish that the plaintiff would have been
discharged for conduct at issue, and that company policy manual specifying that falsification of
records would warrant immediate dismissal was immaterial where manual had not been
distributed to employee prior to employee’s termination (emphasis added)); Kapche, 677 F.3d at
466 (finding that employer appropriately invoked after-acquired evidence defense where
employer presented evidence of its “policy and practice”); Moore v. Gilead Scis., Inc., No. C 07-
03850 SI, 2012 WL 1192075, at *8 (N.D. Cal. Apr. 10, 2012) (granting employer’s motion to
preclude reinstatement based on after-acquired evidence where employee admitted to deleting
documents from his hard drive related to pending lawsuit and employer “produced numerous
policies prohibiting destruction of [its] documents” as well as “human resource documents
relat[ing] to other employees who ha[d] been disciplined for behavior ranging from downloading
copyrighted materials to swapping hard drives [to] demonstrate that [the employer] [took]
computer misconduct seriously”). Nor has the defendant presented evidence concerning how the
Library has treated similarly situated employees who engaged in similar misconduct in the past.
See, e.g., Kapche, 677 F.3d at 466-68 (reviewing testimony of employer’s “usual practice” when
making hiring decisions); O’Day, 79 F.3d at 762 (“We could hardly require employers in these
cases to come forward with proof that they discharged other employees for the precise
17
misconduct at issue . . . , as often the only proof an employer will have is that adduced in this
case—a company policy forbidding the conduct and the testimony of a company official that the
conduct would have resulted in immediate discharge. This does not mean that employers can
prevail based only on bald assertions that an employee would have been discharged for the later-
discovered misconduct. In this regard, we find it significant that [the employer’s] testimony is
corroborated both by the company policy, which plausibly could be read to require discharge for
the conduct at issue here, and by common sense.” (citations omitted)); Moore, 2012 WL
1192075, at *8 (reviewing evidence of past termination for misconduct similar to that of
employee). The single case cited by the defendant, see Def.’s Mem. at 13, concerned a former
Library employee who “was removed from his position as a GS-12 Librarian (Cataloger) at the
Library of Congress for intentionally altering and destroying library catalog records,” Powitz v.
Office of Pers. Mgmt., 82 M.S.P.R. 56, 57 (1999) (emphasis added). Here, however, it is not
clear from the current record whether the plaintiff was aware of which documents were to be
treated as Library records. ECF No. 68-2 (2012 Davis Decl.) ¶ 12. And the plaintiff contends
that he did not intend to destroy the only copy of documents, because he “assumed that the
Library archived the data on its network.” Id. ¶ 15. As a result of the factual disputes
concerning the nature of the documents and emails, the plaintiff’s intentions, and the lack of
evidence concerning Library policy, the Court cannot find on the current record and prior to
discovery that the after-acquired evidence rule precludes the possibility of reinstatement as a
matter of law.
The defendant’s other arguments against reinstatement are that there is continuing
hostility between the plaintiff, the Library, and senior CRS leadership, Def.’s Mem. at 16-17, and
that there is no comparable position to which the plaintiff may be reinstated, id. at 17-18. But, as
18
the plaintiff notes, there has been no discovery in this case. See Pl.’s Mem. at 11-12. Rather, the
defendant relies solely on two affidavits stating that it would be “very difficult at best to restore a
collaborative atmosphere among senior management.” Def.’s Mem. at 17 (citing Def.’s Mem.,
Ex. C (Lewis Decl.) ¶ 33); see also Def.’s Mem., Ex. D (Ehlke Decl.) ¶ 40 (stating that, as a
result of his conduct, the plaintiff has “lost the ability to be a collaborator with others on detainee
issues, which should have been one of his greatest assets as an Assistant Director”). This does
not suffice. Moreover, the cases cited by the defendant as support for his summary judgment
request involve markedly different factual contexts than this case, see Def.’s Mem. at 16-17
(citing Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 845 (2001) (hostile work
environment based on sexual harassment); Navab-Safavi v. Broad. Bd. of Governors, 650 F.
Supp. 2d 40, 74 (D.D.C. 2009) (suggesting, without deciding, that reinstatement is inappropriate
in the context of personal service contracts), aff’d sub nom., Navab-Safavi v. Glassman, 637
F.3d 311 (D.C. Cir. 2011); Thomas v. Nat’l Football League Players Ass’n, 941 F. Supp. 156,
164 (D.D.C. 1996) (finding reinstatement inappropriate where plaintiffs alleged retaliatory
discharge based on racially discriminatory employment practices and where “the economic harm
to the plaintiff [who sought reinstatement] that resulted from defendant’s wrongful conduct had
subsided more than six years before the date of judgment”), rev’d in part, 131 F.3d 198 (D.C.
Cir. 1997), vacated in part, No. 96-7242, 1998 WL 1988451 (D.C. Cir. Feb. 25, 1998) (striking
language relating to costs); Castle v. Bentsen, 867 F. Supp. 4, 7 (D.D.C. 1994) (finding
reinstatement and front pay inappropriate after applying the after-acquired evidence rule and
considering evidence that the plaintiff had plagiarized large portions of her work), aff’d sub
nom., Castle v. Rubin, 78 F.3d 654 (D.C. Cir. 1996)), or are actually helpful to the plaintiff’s
arguments, see id. at 17 (citing Katz v. Georgetown Univ., No. 00-CV-2412, 2000 WL
19
33539394, at *7 (D.D.C. Nov. 6, 2000) (“[I]n an action for breach of contract, specific
performance is generally only available if monetary damages are deemed to be either inadequate
or impractical.”)). Without discovery concerning the nature of the documents and without
providing the plaintiff the opportunity to test the defendant’s statements about the hostility that
would result if the Court were to order reinstatement, the Court cannot find at this juncture that
reinstatement is inappropriate as a matter of law. Because the Court has not yet foreclosed the
possibility of reinstatement, there is no cause to address the current lack of a comparable
position, as that reality might change when a final judgment is ultimately issued in this case.
Because the CSRA does not bar the plaintiff’s colorable constitutional claims, and
because the Court cannot find on the current record as a matter of law that ordering reinstatement
will be inappropriate, the Court must deny in part the defendant’s motion to dismiss.
Specifically, the Court grants the defendant’s motion as to the plaintiff’s claims for front and
back pay, and denies the motion in all other respects.
C. Whether Summary Judgment Is Warranted
1. The Plaintiff’s First Amendment Claims
Both the defendant and the plaintiff seek summary judgment on the plaintiff’s First
Amendment claims. See Pl.’s Mem. at 15; Def.’s Mem. at 21-22. Under Pickering v. Board of
Education, 391 U.S. 563 (1968), courts must seek “a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs through its
employees.” 391 U.S. at 568. In accordance with the test developed in Pickering and its
progeny, this Circuit “has described the public employee’s First Amendment cause of action as
20
having four elements.” Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing Hall v. Ford, 856
F.2d 255, 258 (D.C. Cir. 1988)).
First, the public employee must have been speaking on a matter of public concern.
. . . Second, the court must balance the interest of the employee as a citizen, in
commenting upon matters of public concern and the interest of the employer in
promoting the efficiency of the public services it performs through its employees.
Thus, only where the employee’s speech touches on a matter of public concern,
and only where the employee’s First Amendment interest is not outweighed by
any disruption that the speech may cause to the efficiency of the public enterprise,
is that speech constitutionally protected. Third, the employee must prove that
h[is] speech was a substantial or motivating factor in the denial of the benefit that
[]he sought. Finally, the government employer must be given an opportunity to
prove that it would have reached the same decision even absent the protected
conduct. The first two factors under the Pickering test are questions of law for the
court to resolve, while the latter are questions of fact ordinarily for the jury.
Id. (citations and internal quotation marks omitted).
The defendant focuses on the second element of the Pickering test, arguing that “the
Library ‘reasonbl[y] predict[ed]’ that [the] [p]laintiff’s actions had ‘some potential to affect the
[Library’s] operations.’” Def.’s Mem. at 21 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). In assessing whether a government employer’s predictions of harm were reasonable,
courts consider whether “the statement impairs discipline by superiors or harmony among
coworkers, has a detrimental impact on close working relationships for which personal loyalty
and confidence are necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.” Hall, 856 F.2d at 260 (citing and quoting Rankin v.
McPherson, 483 U.S. 378, 388 (1987)). While it is not necessary “for an employer to allow
events to unfold to the extent that the disruption of the office and the of destruction working
relationships is manifest before taking action,” Connick v. Myers, 461 U.S. 138, 152 (1983), the
government must present more than “unadorned speculation as to the impact of [the] speech,”
Hall, 856 F.2d at 261. Moreover, the Supreme Court has “caution[ed] that a stronger showing
21
may be necessary if the employee’s speech more substantially involve[s] matters of public
concern.” Connick, 461 U.S. at 152. Courts must also consider “the content, manner, time[,]
and place of the speech in . . . weighing the governmental interest in regulating the speech.”
O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998).
The defendant argues that the plaintiff was a “key deput[y]” who “carr[ied] a higher
burden of care as to [his] public speech.” Def.’s Mem. at 39 (citing Hall and O’Donnell). To
determine whether a public employee is a high-level employee, the Circuit directs district courts
to
ask first whether the employee’s position relates to an area as to which there is
room for principled disagreement on goals or their implementation. In other
words, is it a policy area? If so, we then ask whether the office gives the
employee broad responsibilities with respect to policy formulation,
implementation, or enunciation. Put differently, was the individual a policy level
employee? If both criteria are met, we ask whether the government interest in
accomplishing its organizational objectives through compatible policy level
deputies is implicated by the employee’s speech.[3]
Hall, 856 F.2d at 264 (citations omitted); see also O’Donnell, 148 F.3d at 1136. The First
Amendment rights of key deputies and high-level public employees are constrained to a higher
degree than other employees. Hall, 856 F.2d at 263 (“High-level officials must be permitted to
accomplish their organizational objectives through key deputies who are loyal, cooperative,
willing to carry out their superiors’ policies, and perceived by the public as sharing their
superiors’ aims.”). Moreover, “[a]n employee may be dismissed who ‘expresses views on
matters within the core of his responsibilities that reflect[] a policy disagreement with his
superiors such that they could not expect him to carry out their policy choices vigorously.’”
3
The defendant points to additional factors set forth elsewhere in Hall. See Def.’s Mem. at 40 (citing Hall, 856 F.2d
at 262). However, these factors, while related to the test that the Circuit has fashioned for employee speech cases,
are factors for consideration in political affiliation cases. See Hall, 856 F.2d at 261-62.
22
O’Donnell, 148 F.3d at 1136 (quoting Hall, 856 F.2d at 265). This Circuit and other members of
this Court have generally limited the high-level employee exception to situations where the
public employee disagrees with either his employer’s internal policy or the manner in which the
employer has chosen to respond to a policy issue within the employee’s official responsibilities. 4
See, e.g., Hall, 856 F.2d at 265 (University of the District of Columbia athletic director disagreed
with manner in which the University responded to violations of University and National College
Athletic Association rules); Pearson v. District of Columbia, 644 F. Supp. 2d 23, 43 (D.D.C.
2009) (disagreement over office policy); see also Tao, 27 F.3d at 640 n.4 (finding appellee’s
reliance on Hall “misplaced because . . . [the appellant] [was] not a high level employee whose
expression reflected a policy disagreement with her superiors”).
However, the Circuit suggested in a recent decision that the high-level employee
exception applies in an additional context. In Navab-Safavi, the plaintiff was a contractor for a
federal news service charged with, among other things, providing “accurate, objective, and
comprehensive” news. 637 F.3d at 313, 316. While still employed by the federal news service,
the plaintiff appeared in a music video that her employer “judged . . . to be anti-American.” Id.
at 314. The employer argued that the plaintiff’s actions “raised two potential threats to [its]
journalistic credibility: first, that she would cause [the agency] to produce biased work[,] and
second, that, even if she did not, the public could perceive [the agency]’s broadcasting to be
4
Other circuits similarly limit the application of the high-level employee exception. See Lewis v. Cowen, 165 F.3d
154, 165 (2d Cir. 1999) (“This is not to say that a high-level policymaking employee may never claim the protection
of the First Amendment under Pickering, [but] only that a public employer’s interests in running an effective and
efficient office are given the utmost weight where a high-level subordinate insists on vocally and public criticizing
the policies of his employer.”); Moran v. Washington, 147 F.3d 839, 850 (9th Cir. 1998) (finding against high-level
employee who publicly criticized outreach program that she had been specifically hired to implement, and stating
that the court was “most doubtful that the Constitution ever protects the right of a public employee in a
policymaking position to criticize her employer’s policies or programs simply because she does not share her
employer’s legislative or administrative vision”); Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995) (recognizing
that an official’s “concern is . . . acute when a[n] [employee] openly disagrees with an official’s policy stance in a
certain area”).
23
biased because of her editorial role in the agency.” Id. at 316. The employer further argued that
“[i]f [its] credibility were compromised in this way . . . this could hinder [its] ability to advance
foreign policy.” Id. The Circuit concluded that it was “inarguable that the government has
presented a weighty interest in support of its authority to take action against [the plaintiff’s]
exercise” of her First Amendment right to free speech. Id. The Circuit then observed that the
employer would “not likely . . . argue that, for example, a janitor or messenger could be
discharged for making an anti-American video[,] . . . . [while on the other hand] it might well be
that an on-the-air editorialist for [the news service] or a top executive could be discharged for the
same conduct.” Id. at 317. In other words, the Circuit left room for the possibility that a high-
level employee who engages in speech detrimental to his employer but unrelated to his official
responsibilities might nonetheless be subject to termination if the public perception of his
employer’s credibility is based on the employee’s non-partisanship and objectivity.
Here, as in Navab-Safavi, the plaintiff worked for an agency that places a premium on the
appearance of non-partisanship and objectivity. See Keeffe v. Library of Congress, 777 F.2d
1573, 1577-78 (D.C. Cir. 1985). And in both cases, the plaintiffs engaged in speech that neither
criticized an internal policy nor the employer’s chosen response to a public policy issue. But it is
not clear from the existing record whether the plaintiff here is a high-level employee. Compare
Pl.’s Mem. at 22 (disputing whether the plaintiff held a high-level position within the CRS); Pl.’s
Mot., Attachment (“Attach.”) 6 (Declaration of Morris D. Davis (“2013 Davis Decl.”)) ¶ 13
(“My main day-to-day duties as an Assistant Director were to lead, plan, direct, and evaluate the
research and analytical activities in the policy areas assigned to the [Foreign Affairs, Defense,
and Trade] Division: foreign affairs, the [United States] Department of Defense, and
international trade and finance.”), and Pl.’s Reply at 16 (“Col. Davis has consistently maintained
24
that his role a[t] CRS was not that of a ‘key deputy’ as defined in the caselaw.”), with Def.’s
Mem. at 39-41 (characterizing the plaintiff’s position as “a key role within the Service’s small
senior leadership core”), and id., Ex. A (Mulhollan Decl.) ¶¶ 14-18. The defendant relies in part
on the position description of a CRS Assistant Director, see Def.’s Mem., Ex. A (Mulhollan
Decl.) ¶ 14; see also Def.’s Mem. at 40, but this description is not dispositive, see Garcetti, 547
U.S. at 424 (“We reject, however, the suggestion that employers can restrict employees’ rights
by creating excessively broad job descriptions.”). Because the parties dispute whether the nature
of the plaintiff’s role within the CRS afforded him “broad responsibilities with respect to policy
formulation, implementation, or enunciation,” Hall, 856 F.2d at 264, the Court finds that there is
a genuine issue of material fact as to whether the plaintiff was a high-level employee within the
meaning of Hall. Thus, while the Circuit’s ruling in Navab-Safavi possibly lends support to the
defendant’s argument that the Library was justified in dismissing the plaintiff from the Assistant
Director position regardless of whether his speech related to his official responsibilities, the
Court cannot on the current record find that the plaintiff had a higher burden of care or was
obligated to exercise special caution in the exercise of his speech. Rather, because there are
issues of fact concerning the plaintiff’s responsibilities, the Court must consider whether either
party is entitled to summary judgment without employing the high-level employee analysis.
The Court therefore turns to the alleged harm that the plaintiff’s speech caused the
defendant. The defendant contends first that the “[p]laintiff was not separated because [the] CRS
disagreed with the content of his publication,” but rather because of “his sustained failure of
professional judgment.” Def.’s Mem. at 25. In advancing his argument, the defendant attempts
to separate the plaintiff’s publication of the opinion pieces from his conduct concerning how and
when he notified his superiors about the publication of the opinion pieces and also his conduct
25
during and after meetings concerning the opinion pieces. See id. at 25-27. The Court finds this
approach illogical. To separate the plaintiff’s speech from his interactions with the Library
before and after the opinion pieces were published—interactions that concerned the opinion
pieces—would ignore the Court’s obligation to consider not only the speech, but also the
government’s interest in regulating that speech, as well as the impact that the speech could or did
have in the workplace. Additionally, the “[p]laintiff maintains that each of the reasons claimed
by [the] [d]efendant” for terminating his employment “was pretextual, based on the
misapplication of Library policies, or was not conduct that had been treated as a disciplinary
matter by the Library in the past.” Pl.’s Disputed Facts ¶ 2. Because there is a dispute as to
whether it was the plaintiff’s alleged “sustained failure of professional judgment” or his
publication of the opinion pieces that resulted in his dismissal, the Court cannot grant either
party’s motion for summary judgment on these grounds.
The defendant argues next that the “CRS could have reasonably concluded that [the]
[p]laintiff’s publication of the November 2009 opinion pieces cast substantial doubt on his
commitment to fundamental CRS policies designed to further the Service’s mandated
commitment to objectivity and non-partisanship.” Def.’s Mem. at 27; see also id. at 27-30. The
plaintiff repeats the response he made in opposition to the previous argument. Pl.’s Disputed
Facts ¶ 2. Moreover, the plaintiff cites opinion pieces published by other Library employees in
the New York Times, the Legal Times, and the Washington Times, and contends that none of
these employees were disciplined. Id. ¶ 3 (citing Declaration of Lee Rowland (“Rowland
Decl.”), Exs. L, M, N). The plaintiff submitted with his motion for summary judgment the
declaration of one of his former colleagues, who states that he “wrote a sharply-worded opinion
piece on land use policy in Washington, D.C., which was prominently published in the Sunday
26
Washington Post’s ‘Outlook’ section in January 1996.” Pl.’s Mot., Attach. 7 (Declaration of
Richard F. Grimmett (“Grimmett Decl.”) ¶ 22. Grimmett represents that although “[t]he piece
criticized” certain government recommendations, “urged readers to take specific action,” and
“contained no disclaimer,” id., he remained employed by the CRS, see id. ¶¶ 2, 4 (stating that
Grimmett was hired by the CRS in 1974 and remained employed there for 38 years, which was
more than 15 years after his opinion piece was published). That Grimmett remained employed
despite engaging in seemingly similar conduct, id. ¶¶ 2, 4, 22, and possibly other employees, as
well, Pl.’s Disputed Facts ¶ 3 (citing Rowland Decl., Exs. L, M, N (Letters to the Editor
published in the New York Times, Legal Times, and Washington Times)), calls into question the
defendant’s assertions regarding its concern about the plaintiff’s “commitment to fundamental
CRS policies.” Def.’s Mem. at 27. Accordingly, the Court finds that summary judgment for
either party on these grounds is also inappropriate.
The defendant argues also that the “[p]laintiff’s decision to publish his two pieces deeply
undermined his relationship with then-Director Mulhollan and other colleagues.” Def.’s Mem. at
32. The Supreme Court
ha[s] previously recognized as pertinent considerations whether the statement
impairs discipline by superiors or harmony among co-workers, has a detrimental
impact on close working relationships for which personal loyalty and confidence
are necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.
Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570-73); see also O’Donnell, 148 F.3d at
1135. Indeed, “[i]nterference with work, personnel relationships, or the speaker’s job
performance can detract from the public employer’s function; avoiding such interference can be
a strong state interest.” Rankin, 483 U.S. at 388. And as noted earlier, “the employer need not
‘allow events to unfold to the extent that the disruption of the office and the destruction of
27
working relationships is manifest before taking action.’” Hall, 856 F.3d at 261 (quoting
Connick, 461 U.S. at 152).
Here, the defendants have presented evidence that the publication of the plaintiff’s
opinion pieces “impair[ed] discipline by superiors [and] harmony among co-workers.” Rankin,
483 U.S. at 388. As noted in the Lewis Declaration, “[t]o effectively fulfill [the CRS’s] duties to
provide balanced and authoritative advice, collaboration between and among divisions is
encouraged and often mandated in both formal and informal ways.” Def.’s Mem., Ex. C (Lewis
Decl.) ¶ 12. Lewis further contends that attorneys in the CRS’s American Law Division “have
collaborated with analysts in [the Foreign Affairs, Defense, and Trade Division] on issues related
to Guantanamo and detainee treatment, military commissions, and national security, to name just
a few,” id. ¶ 15, and that the attorneys collaborated specifically with the plaintiff on these issues,
id. ¶¶ 17-19. However, “[a]fter the publication of [the] [p]laintiff’s opinion pieces, [Lewis]
discussed the pieces with the attorneys who work on these issues and advised them not to seek
[the] [p]laintiff’s assistance in their future research and writing” because she was “concerned that
their work would be tainted.” Id. ¶ 31. Lewis also states in her declaration that the “[p]laintiff’s
decision to write these opinion pieces negatively impacted [her] professional working
relationship with him because [she] was disappointed in the example he set.” Id. ¶ 32. She
contends that she and the plaintiff “never talked much after their publication,” and that “it
seemed clear to [her] that he was unable to separate himself from the issues that he cared deeply
about and also carry out his responsibilities as an [Assistant Director] in [the] CRS.” Id. Finally,
she states that
[i]f [the] [p]laintiff were ‘reinstated’ to [the] CRS in a senior leadership position,
whether as [Assistant Director] for [the Foreign Affairs, Defense, and Trade
Division] or in an arguably comparable senior position, [she] would have deep
reservations based on his prior conduct as to whether he could meet effectively
28
the professional obligations that come with such a position, [and that she would]
have similar reservations about whether [she] could ever effectively work with
[the] [p]laintiff again in the unique context of CRS’ senior leadership team given
his prior conduct.
Id. ¶ 33. The Ehlke Declaration expresses similar concerns. See Def.’s Mem., Ex. D (Ehlke
Decl.) ¶ 40 (“[The] [p]laintiff’s conduct impaired the necessary sense of harmony and
collaboration among him and his co-workers, particularly at the Assistant Director level. [His]
behavior was uniformly condemned by his fellow [Assistant Directors]; it shattered their
collaborative relationship and undermined his credibility in the eyes of his fellow [Assistant
Directors]. In particular, he lost the ability to be a collaborator with others on detainee issues,
which should have been one of his greatest assets as an Assistant Director.”).
But the plaintiff has submitted his own declaration that contradicts the assertions set forth
in the Lewis and Ehlke Declarations. Unsurprisingly, the plaintiff contends that “[his]
colleagues at [the] CRS never expressed outrage or concern over the content of [his] opinion
pieces during [his] time there. To the contrary, business continued as usual after the articles’
publication.” Pl.’s Mot., Attach. 6, (2013 Davis Decl.) ¶ 52. He further states that the “Assistant
Directors got together each month to catch up and compare notes over wine and cheese, and to
the best of [his] recollection [he] attended one of those get-togethers after the publication of the
articles.” Id. He states that he “never detected any change in how [the other Assistant Directors]
interacted with [him].” Id. As to the representations in the Lewis Declaration, the plaintiff
responds that he “continued working with [her] for more than two months after the articles came
out, and [he] cannot recall her ever saying anything even remotely similar to what she says in her
declaration.” Id. ¶ 55. He states that “[they] did not stop speaking and continued to go to the
same meetings.” Id. Further, the plaintiff states that he “ha[s] maintained positive relationships
29
with [his] [former] colleagues and former subordinates, who have been extremely supportive of
[him] throughout this process.” Id. ¶ 58.
Even if the defendant’s declarations comprise more than “unadorned speculation as to the
impact of the speech,” Hall, 856 F.2d at 261, the plaintiff has challenged the defendant’s
characterization of that impact through his own declaration. It is well-established that on a
motion for summary judgment, “[c]redibility determinations . . . are jury functions, not those of a
judge.” Anderson, 477 U.S. at 255. Where, as here, the parties have presented directly
contradictory, written statements about the level of discord, if any, between the plaintiff and his
colleagues following the publication of the plaintiff’s opinion pieces, it is not only impossible,
but also inappropriate for the Court to determine which party’s depiction of the facts is accurate.
Accordingly, the Court cannot conclude that the plaintiff’s speech “impair[ed] discipline by
superiors or harmony among co-workers, [or] ha[d] a detrimental impact on close working
relationships,” Rankin, 483 U.S. at 388, and therefore cannot grant summary judgment on such
grounds.
The defendant further argues that the plaintiff’s “conduct was even more damaging to
[the] CRS in light of the role that he was expected to play as Assistant Director for [the Foreign
Affairs, Defense, and Trade Division] . . . on detainee and military commission issues.” Def.’s
Mem. at 34. In asserting that the plaintiff’s official responsibilities included detainee and
military commission issues, the defendant argues that the plaintiff has “admitted significant
responsibility for” those issues. Id. at 35-37 (citing Def.’s Mem., Ex. R (email correspondence
attaching Mid-Term Assessment); Pl.’s Mot., Attach. 6 (2013 Davis Decl.) ¶ 25; Def.’s Mem.,
Exs. M, S, T, U (email correspondence)). But what the defendant characterizes as admissions of
“significant responsibility” are references to discussions in which the plaintiff took part rather
30
than admissions or assertions of his official responsibilities. Indeed, the statements in the emails
could be read as puffery designed to make the plaintiff appear more involved in detainee issues
than he actually was. Furthermore, the statements do not speak to the role that the Library
expected the plaintiff to play but rather, if anything, to his own subjective understanding of his
role—an understanding which he asserts changed at some point prior to the publications of the
opinion pieces. 5 See Pl.’s Mot., Attach. 6 (2013 Davis Decl.) ¶ 29.
Additionally, the plaintiff has submitted the Grimmett Declaration, which states that “no
one at [the Foreign Affairs, Defense, and Trade Division] had any formal or public responsibility
for anything involving Guantánamo Bay or the related military commissions,” and that “[i]f
anyone within [the Division] had been tapped to work on military commissions issues . . . it
would likely have been [him, i.e., Grimmett], as [he] was an expert on war powers. However,
[he] was never asked to work on military commissions issues broadly or Guantánamo
5
The defendant now urges the Court to impose an “argument-preclusion sanction” to “preclude [the] [p]laintiff from
denying,” among other things, “his involvement with military commission or detainee issues.” Def.’s Mem. at 24-
25. The parties previously briefed and presented oral argument on the merits of the Defendant’s Material Evidence
and Misappropriation of Government Information. See ECF No. 63. The Court denied the motion, but “reserve[d]
for consideration the issue of whether an adverse inference instruction is warranted.” See ECF No. 86 at 1. An
issue-related sanction in the form of an adverse inference instruction or something similar is warranted where:
(1) the party having control over the evidence had an obligation to preserve it when it was
destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind”;
and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the
party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder
could conclude that the lost evidence would have supported the claims or defense of the party that
sought it.
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008) (citation omitted). “[A] district
court may impose issue-related sanctions whenever a preponderance of the evidence establishes that a party’s
misconduct has tainted the evidentiary resolution of the issue.” Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1478
(D.C. Cir. 1995). Here, the defendant argues that a large number of relevant emails from the period of time giving
rise to this litigation are missing, Def.’s Mem. at 24, and the plaintiff responds that he “absolutely did not
intentionally delete any e-mails because of their timing or relation to the events giving rise to this litigation,” Pl.’s
Mot., Attach. 6 (2013 Davis Decl.) ¶ 59. The posture of this case today is thus no different than it was when the
parties briefed and argued the merits of the defendant’s motion for sanctions: discovery has not begun, and the
Court has no basis upon which to conclude that the plaintiff’s deletion of the emails in question “was accompanied
by a culpable state of mind.” Mazloum, 530 F. Supp. 2d at 291 (citation and internal quotation marks omitted). The
Court therefore declines to impose an argument preclusion sanction at this time.
31
specifically.” Pl.’s Mot., Attach. 7 (Grimmett Decl.) ¶ 6. In light of the factual disputes
surrounding the scope of the plaintiff’s responsibilities, the Court cannot grant summary
judgment to either party on these grounds.
Finally, the defendant argues that the plaintiff’s use of his CRS computer during work
hours to edit and submit edits to the opinion piece that he published in the Wall Street Journal
weigh in favor of the government’s interest in regulating the plaintiff’s speech. See Def.’s Mem.
at 41. The defendant is correct that “content, manner, time[,] and place of speech” are relevant
factors that the Court must consider. See O’Donnell, 148 F.3d at 1135. And a former member
of this Court held in another case that a “[p]laintiff’s liberty interest in speaking on matters of
public concern is diminished by the fact that [he] used government property to do so.” Waldau
v. Coughlin, Civ. Ac. No. 95-1151, 1997 WL 161958, at *6 (D.D.C. Apr. 1, 1997), aff’d, No. 97-
5162, 1997 WL 634539, at *1 (D.C. Cir. Sept. 25, 1997). Here, the plaintiff concedes that he
used at least some CRS time and resources in order to finalize his Wall Street Journal opinion
piece. See Pl.’s Mem. at 31. The Court therefore finds that the plaintiff’s interest in speaking is
diminished with respect to that particular opinion piece.
However, it is not apparent from the current record how much CRS time the plaintiff
spent in order to finalize the Wall Street Journal opinion piece. In light of that uncertainty, as
well as the myriad of other factual disputes raised by the parties’ motions and other submissions,
the Court cannot find that the government’s interest in regulating the plaintiff’s speech
outweighed the plaintiff’s speech interest. Accordingly, the Court must deny without prejudice
both parties’ motions for summary judgment on the plaintiff’s First Amendment claims.
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2. The Plaintiff’s Fifth Amendment Due Process Claim
The plaintiff argues that “the application of the Library rules to [him] was
unconstitutionally vague because nothing in the policies or their past enforcement gave [him]
‘fair warning’ that [the] CRS might interpret them to apply to his outside speech about the
military commissions system—on which he had previously been permitted to speak.” Pl.’s
Mem. at 38. The defendant argues that the plaintiff “fails to establish any of the legal or factual
prerequisites for . . . [a Fifth Amendment due process] claim.” Def.’s Mem. at 43.
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
To be sure, when a statute “interferes with the right of free speech or of association, a more
stringent test of vagueness should apply.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 499 (1982). But “perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism,
491 U.S. 781, 794 (1989).
As an initial matter, the Court notes that it previously held that the Library’s speech
policy is not void as facially vague, see Davis, 775 F. Supp. 2d at 43, and on appeal the Circuit
did not disturb that holding, see Davis, 681 F.3d at 388. The plaintiff’s sole claim, therefore, is
whether the speech policy, as applied to him, violated his due process rights.
The Court also previously held that the plaintiff had stated a claim under the Fifth
Amendment. See Davis, 755 F. Supp. 2d at 46. As the Court noted, this Circuit has directly
addressed the Library’s regulations, stating that “‘the Library must . . . give loud and clear
advance notice when it [decides] to interpret a particular regulation as a prohibition of the
limitation on an employee’s outside activity. Without this notice, an employee is entitled to read
33
the Library’s overly long silence as assent.’” Id. (quoting Keeffe, 777 F.2d at 1583). In so
holding, this Court found that the plaintiff had stated a claim because he “was not provided fair
warning of the adverse consequences of” publishing his opinion pieces, Davis, 755 F. Supp. 2d
at 46, that is, fair notice that his employment would be terminated.
The defendant now argues that the plaintiff’s Fifth Amendment claim can survive
summary judgment only if he has stated a constitutionally protected property interest in his
employment with the Library of Congress. Def.’s Mem. at 43-44. The plaintiff appears to
concede that he has no property interest in his employment, and instead argues that his “claim is
grounded in his liberty interest in free speech.” Pl.’s Mem. at 42. As a result, the plaintiff’s
claim fails. The Supreme Court has long held that, “[w]here a particular Amendment ‘provides
an explicit textual source of constitutional protection’ against a particular sort of government
behavior, ‘that Amendment . . . must be the guide for analyzing these claims.’” Albright v.
Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
Indeed, the cases that the plaintiff cites as supporting his liberty interest in free speech are First
Amendment cases, or cases addressing whether the statutes at issue were unconstitutionally
vague. See Pl.’s Mem. at 42 (citing Rankin, 483 U.S. at 383-84; Keyishian v. Bd. of Regents,
385 U.S. 589, 664 (1967); Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 288 (1961)). While a
property interest in employment might be protected under the Fifth Amendment, Keeffe, 777
F.2d at 1583, a liberty interest in free speech cannot be. Rather, a particular Amendment—the
First Amendment—explicitly provides for the protection of the plaintiff’s liberty interest in free
speech. Accordingly, regardless of the ultimate conclusion of this case, the plaintiff cannot state
a Fifth Amendment liberty interest in free speech. See Albright, 510 U.S. at 273; Graham, 490
34
U.S. at 395. The Court therefore grants summary judgment to the defendant on the plaintiff’s
Fifth Amendment claim.
IV. CONCLUSION
For the foregoing reasons, the Court will deny in part and grant in part the defendant’s
motions to dismiss and for summary judgment, and will deny the plaintiff’s motion for summary
judgment in its entirety. 6
SO ORDERED this 25th day of June, 2014.
REGGIE B. WALTON
United States District Judge
6
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
35