Davis v. Billington

MEMORANDUM OPINION

Currently before the Court is' the Plaintiffs 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 *62 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 plaintiffs motion, the Court concludes that it cannot award the plaintiff the extraordinary forms of relief he desires, and thus the plaintiffs 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 (D.C.Cir.2012) (same); see also Davis v. Billington, 51 F.Supp.3d 97, 103-05, 2014 WL 2882679, at *1-2 (D.D.C.2014) (same). In brief, the plaintiff filed suit against the defendant, alleging that the defendant violated his First Amendment rights, 3 by terminating him as the Assistant Director of the Congressional Research Service’s Foreign Affairs, Defense and Trade Division (“Assistant Director”) for permitting. the Wall Street Journal and the Washington Post to publish opinion pieces that he authored, wherein he criticized the Obama administration’s prosecution of Guantanamo Bay detainees. See Davis, 681 F.3d at 379-80; Davis, 51 F.Supp.3d at 104-05, 114-15, 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 in-junctive 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 weighted] in [the plaintiffs] 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 plaintiffs 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 plaintiffs First Amendment claims against the defendant. Davis, 51 F.Supp.3d at 114-15, 2014 WL 2882679, at *10. With a more developed factual record than was available to the Court at the time it denied the plaintiffs 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 *63 Coui’t from granting summary judgment to either party. See id. at 114-23, at *10-16. Further, the Court determined that should the plaintiff prevail on his First Amendment claims, he would be entitled to neither back pay nor front pay. Id. at 109-12, at *6-8. The Court, however, left open the possibility that reinstatement into the plaintiffs former position could be an appropriate form of relief. Id. at 111-15, at *8-10.

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

II. LEGAL ANALYSIS

A. Legal Standard

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

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

[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be ap *64 plied for likelihood of success. Alternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other.

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

B. Analysis

1. Substantial Likelihood of Success on the Merits

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

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

Here, in considering the parties’ cross-motions for summary judgment on the plaintiffs First Amendment claims, the Court found that many outstanding factual disputes existed, and thus denied both parties’ motions. Davis, 51 F.Supp.3d at 114-23, 2014 WL 2882679, at *10-16. With factual disputes yet to be tested and potentially resolved on further motions for summary judgment following the completion of discovery, 6 or at trial, it follows that the plaintiff, at best, has an equal chance of succeeding as he does losing on his First Amendment claims. This falls well short of demonstrating a substantial likelihood of success on the merits. See In re Navy Chaplaincy, 928 F.Supp.2d at 36. Accordingly, the Court finds that this factor does not weigh in favor of the plaintiff.

2. Irreparable Harm

The plaintiff contends that the Court’s failure to award preliminary injunctive re7 lief will cause him to “experience! ] irreparable financial harm each day.” Mot. at 6. *65 The crux of the plaintiffs contention is that because the Court has ruled that monetary relief — back pay and front pay — is unavailable to him in this case, that inability to ever recover the lost income alone compels a finding that he is being irreparably harmed. See id. at 6-7, 9-10. Under the circumstances of this case, the Court cannot subscribe to that logic.

There is a “high standard for irreparable injury.” Chaplaincy, 454 F.3d at 297. Any alleged irreparable harm “must be both certain and great; it must be actual and not theoretical,” and be “of such imminence that there is a clear and present need for equitable relief.” Id. (emphasis in original) (internal quotation marks omitted). Moreover, “the injury must be beyond remediation.” Id. And courts have consistently held that irreparable harm is not established by proving merely economic loss, see, e.g., Wisc. Gas. Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985), or loss of employment, see, e.g., Farris v. Rice, 453 F.Supp.2d 76, 79 (D.D.C.2006); Veitch v. Danzig, 135 F.Supp.2d 32, 36-37 (D.D.C.2001) (finding no irreparable harm where alleged harm was “loss of salary and benefits, as well as damage to ... professional reputation,” as those types of harm are “typical in instances of the termination of any government employee”); Nichols v. Agency for Int’l Dev., 18 F.Supp.2d 1, 5 (D.D.C.1998) (“Merely asserting that one will lose his or her job and its attendant salary, without more, cannot possibly provide a sufficient basis for injunctive relief.”). There may, however, be such a showing where “the circumstances surrounding an employee’s discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found.” Sampson v. Murray, 415 U.S. 61, 92 n. 68, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). These “extraordinary cases are hard to define in advance of their occurrence.” Id.

The plaintiff fails to meet this high standard as he has no concrete proof that the vacancy for Deputy Assistant or some other comparable position wall not be available when this matter is ultimately resolved. See Mot. at 6 (arguing that irreparable harm flows from the “possibility that [the Congressional Research Service] will fill the [Deputy Assistant] position” (emphasis added)). And the plaintiffs alleged constitutional injury is not “beyond remediation” without injunctive relief because even if the vacancy for Deputy Assistant is filled before this case concludes, the Court still has the equitable power to reinstate the plaintiff into the Assistant Director position, or a comparable position assuming one is available, if he prevails on the merits. See Davis, 51 F.Supp.3d at. 114, 2014 WL 2882679, at *9 (“[T]he Court has not yet foreclosed the possibility of reinstatement.”). 7

Further, the Court is mindful that there is case authority suggesting that the lack of ability to recover back pay can amount to irreparable harm. See Rosario-Urdaz v. Rivero-Hernandez, 350 F.3d 219, 222 (1st Cir.2003) (“The unavailability of back pay or other monetary damages against either the Commonwealth or the defendants in their official capacities goes a long way toward establishing irreparable injury. It is nose-on-the-face plain that the plaintiff will lose wages while she is contesting her ouster. Where a plaintiff stands to suffer a substantial injury that *66 cannot adequately be compensated by an end-of-case award of money damages, irreparable harm exists.”); Am. Fed’n of Gov’t Emps., AFL-CIO v. United States, 104 F.Supp.2d 58, 76 (D.D.C.2000) (finding that preclusion of back pay supported irreparable harm argument). But the specific circumstances of this case require a different outcome, notwithstanding the Court’s ruling that the plaintiff cannot recover back pay. 8

The Court is not unsympathetic to the fact that the plaintiff may never recover the loss of income associated with his allegedly unlawful termination, which are not insignificant. See Mot. at 6. Aside from simply calculating and estimating his loss of income since the alleged unlawful termination, however, the plaintiff has not once even hinted that he has fallen victim to any financial distress. See Sampson, 415 U.S. at 90, 94 S.Ct. 937 (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” (internal quotation marks omitted)); Lee v. Christian Coal. of Am., Inc., 160 F.Supp.2d 14, 31 (D.D.C.2001) (“[Wjhile an employer’s discharge or constructive discharge of an employee will rarely constitute irreparable harm, courts routinely make exceptions when an employee is so poor that if she stopped working, the consequences would be severe.”); Callicotte v. Carlucci, 698 F.Supp. 944, 950 (D.D.C.1988) (“In personnel discharge actions, the ‘requisite irreparable harm is not established ... by financial distress or inability to find other employment, unless truly extraordinary circumstances are shown.’” (quoting Holt v. Cont’l Grp., Inc., 708 F.2d 87, 90-91 (2d Cir.1983) (ellipses in original)). The plaintiff is currently a law school professor earning a salary of approximately $73,000, 9 see Mot., Exhibit (“Ex.”) A (Declaration of Morris D. Davis (“Davis Decl.”)) ¶ 21, in addition to receiving an annual military pension of approximately $72,000, see Opp’n at 19 & n.5. Thus, in total, the plaintiff receives approximately $145,000 per year from these two sources. 10 The Court is, therefore, hard pressed to conclude that absent preliminary injunctive relief, the plaintiff is experiencing, and will continue to experience, irreparable financial harm during the pen-dency of this action with income of this magnitude. 11

*67 3. Balance of Equities

In considering the plaintiffs first motion for preliminary injunctive relief, the Court determined that the balance of harms was in “equipoise.” Order at 3. The Court reasoned that the mission of the Congressional Research Service could be “compromised” if the plaintiff remained in his position, as his working relationship with his immediate supervisor had become “fractured.” Id. The plaintiff now insists this factor has tipped in his favor because his then-immediate supervisor “is no longer employed at [the Congressional Research Service].” Mot. at 4, see also id. at 6. The Court disagrees.

First, as the plaintiff apparently acknowledges, there is a possibility that “some at [the Congressional Research Service] may be wary of welcoming [the plaintiff] back.” Id. at 7. Thus, to some de.gree, some friction may still arise if the plaintiff were to return to work at the Congressional Research Service. See Opp’n at 30-31 (documenting potential difficulty in fostering collaborative atmosphere were the plaintiff to be instated into role of Deputy Assistant). 12 Second, because the government generally enjoys “wide[] latitude” in handling personnel matters, Sampson, 415 U.S. at 83, 94 S.Ct. 937, see also id. (recognizing the “obviously disruptive effect” of reinstating an employee), the Court is reluctant to intrude on the Congressional Research Service’s prerogative of hiring an employee it concludes is best qualified to fill the Deputy Assistant position, 13 see Farris, 453 *68 F.Supp.2d at 81 (“Suffice it to say that the court considers compelling and insurmountable the institutional harm attendant to judicial interference with federal personnel actions.”); Nichols, 18 F.Supp.2d at 6 (“[T]he federal government would be paralyzed from taking necessary personnel action every time an employee believed that his or her termination or involuntary separation was animated by discriminatory or retaliatory animus.”). Third, as explained above, the plaintiff currently has considerable annual income, notwithstanding his separation from the Congressional Research Service. And fourth, the requested injunctive relief would disrupt the status quo. Unlike the injunctive relief requested by the plaintiff in his first motion, where he sought to prevent the Congressional Research Service from removing him from his then-position of Assistant Director, the plaintiff now seeks to be placed into a different position at the Congressional Research Service — Deputy Assistant. Thus, rather than preserving the status quo, such relief here would create a new status quo to the potential detriment of the defendant, see Elite Entm’t, Inc. v. Reshammiya, No. 08-cv-0641(RMU), 2008 WL 9356287, at *4 (D.D.C. Apr. 18, 2008) (finding that the mandatory nature of the injunctive relief, which sought to change the status quo, was “a relevant fact bearing on the equities of the case”). Therefore, with the record now before the Court, the balance of equities swings in favor of the defendant.

4. Public Interest

The plaintiff contends that a preliminary injunction would serve the public interest because it would “uphold[ ] constitutional values and ensur[e] that those who are unlawfully discharged retain both marketability and the possibility of ultimate relief.” Mot. at 8. The Court does not entirely accept the plaintiffs proposition. Although a preliminary injunction would ensure that the First Amendment rights of federal government employees are not unnecessarily restricted, see Order at 3, it could also create an undesirable work environment, where none now exists, that would interfere with, rather than advance the important mission of the Congressional Research Service to provide services to Congress, see Opp’n at 31 (explaining that defendant’s presence would hinder a “collaborative atmosphere among senior management” at the Congressional Research Service (citation omitted)); cf. Katz v. Georgetown Univ., No. 00-cv-2412, 2000 WL 33539394, at *7 (D.D.C. Nov. 6, 2000), aff'd, 246 F.3d 685 (D.C.Cir.2001) (“As a matter of public policy, courts prefer to avoid the friction that would be caused by compelling an employer to hire or retain someone against their wishes.”).

The Court also fails to see how a preliminary injunction is necessary to “retain ... the possibility of ultimate relief.” Mot. at 8. As the Court previously determined, if the plaintiff is successful, he could be entitled to reinstatement to his previous position at the Congressional Research Service as Assistant Director. See Davis, 51 F.Supp.3d at 113-14, 2014 WL 2882679, at *9. This possibility remains even if the newly-advertised position of Deputy Assistant is filled by an applicant other than the plaintiff.

Finally, while the plaintiff may in fact be qualified for the position of Deputy Assist tant, there is a distinct possibility that someone who has applied, or will apply, for the position is either more qualified or a better fit for the position. See Opp’n at 24-25. Were the Court- to prevent the Congressional Research Service from offering the position to such an applicant, this result would undermine the public interest in having the Congressional Re *69 search Service hire an applicant who can best advance its mission of servicing Congress. The public interest factor, therefore, does not weigh in favor of the plaintiff. 14

III. CONCLUSION

For the foregoing reasons, the Court concludes that the plaintiffs motion for a preliminary injunction must be denied. 15 This result is required because the plaintiff has failed to demonstrate that any of the four factors the Court must consider weigh in his favor. The plaintiff has thus failed to carry his burden of establishing that he is entitled to the extraordinary remedy of a preliminary injunction. 16

SO ORDERED this 19th day of December 2014.