Case 1:19-cv-00345-CKK Document 8-1 Filed 04/25/19 Page 1 of 30

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLIFTON DAVID SIMS,
Plaintiff,
v.
Case No. 1:19-cv-345 (CKK)
DONALD J. TRUMP, in his official capacity
as President of the United States; and
UNITED STATES OF AMERICA,
Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2
STANDARD OF REVIEW ............................................................................................................ 6
ARGUMENT .................................................................................................................................. 7
I.

THE ARBITRATION PROVISION OF PLAINTIFF’S AGREEMENT
REQUIRES DISMISSING HIS COMPLAINT. .................................................... 7

II.

THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF
SUBJECT-MATTER JURISDICTION. ............................................................... 10

III.

A.

Sovereign Immunity Bars Plaintiff’s Claims Against The United
States. ........................................................................................................ 10

B.

Plaintiff’s Claim Against The President Should Be Dismissed
Because Declaratory Relief May Not Be Ordered Against The
President In His Official Capacity. ........................................................... 12

C.

Plaintiff Lacks Standing Because He Has Not Alleged A
Cognizable Injury...................................................................................... 13

D.

Plaintiff’s Claim Is Unripe Because An Arbitrator Has Not Yet
Determined Whether The Agreement Is Enforceable Or Whether
Plaintiff Breached The NDA. ................................................................... 17

THE RELEVANT FACTORS WEIGH STRONGLY AGAINST THE
COURT EXERCISING JURISDICTION OVER PLAINTIFF’S
DECLARATORY JUDGMENT ACT CLAIM. .................................................. 19

CONCLUSION ............................................................................................................................. 22

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TABLE OF AUTHORITIES
CASES
ACLU Found. of S. Cal. v. Barr,
952 F.2d 457 (D.C. Cir. 1991) .................................................................................................. 20
Alexander v. Metro-Goldwyn-Mayer Studios, Inc.,
Case No. CV 17-3123-RSWL-KSx, 2017 WL 5633407 ............................................................ 4
Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc.,
531 F.3d 863 (D.C. Cir. 2008) .................................................................................................... 6
Am. Fed’n of Gov’t Emps. v. O’Connor,
747 F.2d 748 (D.C. Cir. 1984) .................................................................................................. 19
Am. Petroleum Inst. v. EPA,
683 F.3d 382 (D.C. Cir. 2012) ............................................................................................ 17, 18
AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011) .................................................................................................................... 8
Atl. States Legal Found., Inc. v. EPA,
325 F.3d 281 (D.C. Cir. 2003) .................................................................................................. 17
Benvenuti v. Dep’t of Def.,
587 F. Supp. 348 (D.D.C. 1984) ............................................................................................. 11
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ............................................................................................................ 14, 17
Contec Corp. v. Remote Solution, Co.,
398 F.3d 205 (2d Cir. 2005).................................................................................................... 8, 9
Cty. of Santa Clara v. Trump,
250 F. Supp. 3d 497 (N.D. Cal. 2017) ...................................................................................... 13
Day v. Obama,
No. 1:15-cv-00671, 2015 WL 2122289 (D.D.C. May 1, 2015) ............................................... 13
Dep’t of the Army v. Fed. Labor Relations Auth.,
56 F.3d 273 (D.C. Cir. 1995) .................................................................................................... 11
Dorsey v. U.S. Dep’t of Labor,
41 F.3d 1551 (D.C. Cir. 1994) .................................................................................................. 11

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Fairbanks v. Roller,
314 F. Supp. 3d 85 (D.D.C. 2018) .............................................................................................. 4
Fallo v. High-Tech Inst.,
559 F.3d 874 (8th Cir. 2009) ...................................................................................................... 8
Farah v. Esquire Magazine, Inc.,
863 F. Supp. 2d 29 (D.D.C. 2012) .............................................................................................. 4
FiberLight, LLC v. Nat’l R.R. Passenger Corp.,
81 F. Supp. 3d 93 (D.D.C. 2015) .................................................................................... 7, 20, 21
First Va. Bank v. Randolph,
110 F.3d 75 (D.C. Cir. 1997) .............................................................................................. 11, 12
Forrester v. U.S. Parole Comm’n,
310 F. Supp. 2d 162 (D.D.C. 2004) ...................................................................................... 7, 16
Fox v. Computer World Servs. Corp.,
920 F. Supp. 2d 90 (D.D.C. 2013) ............................................................................................ 10
Franklin v. Massachusetts,
505 U.S. 788 (1992), vacated and remanded on other grounds, 138 S. Ct. 353 (2017) .......... 12
French v. Devine,
547 F. Supp. 443 (D.D.C. 1982) ............................................................................................... 16
Green Tree Fin. Corp. – Ala. v. Randolph,
531 U.S. 79 (2000) ...................................................................................................................... 6
Haire v. Smith, Currie & Hancock LLP,
925 F. Supp. 2d 126 (D.D.C. 2013) ........................................................................................ 8, 9
Hanes Corp. v. Millard,
531 F.2d 585 (D.C. Cir. 1976) ............................................................................................ 20, 21
Hines v. Overstock.com, Inc.,
380 F. App’x 22 (2d Cir. 2010) .................................................................................................. 6
In re McConnell,
Case No. 2:15–cv–08183–R, 2015 WL 6125649 ....................................................................... 4
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir. 2017) .................................................................................................... 12

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J. Roderick MacArthur Found. v. F.B.I.,
102 F.3d 600 (D.C. Cir. 1996) ............................................................................................ 16, 17
Lemon v. Geren,
514 F.3d 1312 (D.C. Cir. 2008) ................................................................................................ 13
Lovitky v. Trump,
308 F. Supp. 3d 250 (D.D.C. 2018) .......................................................................................... 20
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .................................................................................................. 6, 14, 16, 17
Lynch v. United States,
292 U.S. 571 (1934) .................................................................................................................. 11
Maryland Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270 (1941) .................................................................................................................. 19
Mercadante v. XE Servs., LLC,
78 F. Supp. 3d 131 (D.D.C. 2015) .......................................................................................... 8, 9
Mississippi v. Johnson,
71 U.S. (4 Wall) 475 (1866) ..................................................................................................... 12
Monsanto Co. v. Geerston Seed Farms,
561 U.S. 139 (2010) .................................................................................................................. 12
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1 (1983) ................................................................................................................ 6, 7, 8
Nat’l Park Hospitality Ass’n v. Dep’t of,Inter.,
538 U.S. 803 (2003) ................................................................................................................. 17
Nat’l Student Ass’n v. Hershey,
412 F.2d 1103 (D.C. Cir. 1969) ................................................................................................ 16
Nat’l Treasury Emps. Union v. United States,
101 F.3d 1423 (D.C. Cir. 1996) ................................................................................................ 17
Nelson v. Insignia/Esg, Inc.,
215 F. Supp. 2d 143 (D.D.C. 2002) ........................................................................................ 6, 9
Newdow v. Bush,
391 F. Supp. 2d 95 (D.D.C. 2005) ............................................................................................ 12

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Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) .................................................................................... 10, 12, 13
NRDC v. EPA,
464 F.3d 1 (D.C. Cir. 2006) ...................................................................................................... 14
POM Wonderful LLC v. F.T.C.,
894 F. Supp. 2d 40 (D.D.C. 2012) ...................................................................................... 21, 22
Pub. Affairs Assocs. v. Rickover,
369 U.S. 111 (1962) .................................................................................................................... 7
Rent-A-Center, West, Inc. v. Jackson,
561 U.S. 63 (2010) ...................................................................................................................... 9
Rep. of Argentina v. BG Group PLC,
665 F.3d 1363 (D.C. Cir. 2012) .................................................................................................. 8
Riley v. BMO Harris Bank, N.A.,
61 F. Supp. 3d 92 (D.D.C. 2014) ............................................................................................ 6, 9
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989) .................................................................................................................... 8
Sakyi v. Estee Lauder Cos.,
308 F. Supp. 3d 366 (D.D.C. 2018) .................................................................................. 6, 8, 10
Settle v. Obama,
No. 3:15-cv-365, 2015 WL 7283105 (E.D. Tenn. Nov. 17, 2015) ........................................... 13
Stone v. Holder,
859 F. Supp. 2d 48 (D.D.C. 2012) ............................................................................................ 11
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) .................................................................................................. 12
Tri-State Hosp. Supply Corp. v. United States,
341 F.3d 571 (D.C. Cir. 2003) .................................................................................................. 11
United States v. Mitchell,
463 U.S. 206 (1983) .................................................................................................................. 10
United States v. N.Y. Rayon Importing Co.,
329 U.S. 654 (1947) .................................................................................................................. 11

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W&T Travel Servs., LLC v. Priority One Servs., Inc.,
69 F. Supp. 3d 158 (D.D.C. 2014) .............................................................................................. 9
Walton v. Fed. Bureau of Prisons,
533 F. Supp. 2d 107 (D.D.C. 2008) .......................................................................................... 11
Whitmore v. Arkansas,
495 U.S. 149 (1990) .................................................................................................................. 14
Willis v. U.S. Dep’t of Health & Human Servs.,
38 F. Supp. 3d 1274 (W.D. Okla. 2014) ................................................................................... 13
Wilton v. Seven Falls Co.,
515 U.S. 277 (1995) ........................................................................................................ 7, 19, 20
STATUTES
9 U.S.C. § 2 ................................................................................................................................. 6, 9
28 U.S.C. § 1331 ........................................................................................................................... 11
28 U.S.C. § 2201 ..................................................................................................................... 19, 20
28 U.S.C. §§ 2201-2202 ....................................................................................................... 5, 7, 11
RULES
Federal Rule of Civil Procedure 12(b)(1) ....................................................................................... 7
Federal Rule of Civil Procedure 56(c) .......................................................................................... 16
OTHER AUTHORITIES
Amazon.com, Amazon Charts: The Top 20 Most Sold & Most Read Books of the Week, Week
of February 3, 2019, https://www.amazon.com/charts/-2019-02-03/mostsold/nonfiction/.... 3, 4
Amazon.com, Team of Vipers; My 500 Extraordinary Days in the Trump White House
by Cliff Sims, https://www.amazon.com/Team-Vipers-Extraordinary-TrumpWhite/dp/125022389X/ref=tmm_hrd_swatch_0?_encoding=UTF8-&qid=&sr= ................ 4, 15
Sam Brodey & Asawin Suebsaeng, Trump to GOP: Sorry, but You’re Gonna Have to Campaign
on Obamacare Repeal, THE DAILY BEAST, Apr. 2, 2019, https://www.yahoo.com/news/
trump-republicans-sorry-gonna-campaign-015340202.html ...................................................... 4

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The New York Times Best Sellers list for Combined Print & E-Book Nonfiction. THE NEW YORK
TIMES Best Sellers: Combined Print & E-Book Nonfiction, N.Y. TIMES (Feb. 17, 2019),
https://www.nytimes.com/books/best-sellers/2019/02/17 .......................................................... 4
Clifton D. Sims, Team of Vipers: My 500 Extraordinary Days in the
Trump White House (2018)......................................................................................................... 3
Instagram post of Cliff Sims (Nov. 22, 2018),
https://www.instagram.com/p/Bqgbi5uHMrv/ .......................................................................... 3
Tweet of Cliff Sims (Feb. 5, 2019),
https://twitter.com/Cliff_Sims/status/1092986210442719233 ............................................. 4, 16
Tweet of Cliff Sims (Feb. 14, 2019),
https://twitter.com/Cliff_Sims/status/1096061262935609347 ............................................. 4, 16
Tweet of Cliff Sims (Mar. 19, 2019),
https://twitter.com/Cliff_Sims/status/1108100214299201536 ............................................... 4, 16
Press Release, St. Martin’s Press, Former White House Staffer to Release First Honest Insider’s
Account of the Trump Administration (Nov. 19, 2018), https://us.macmillan.com/wpcontent/uploads/2018/11/Cliff-Sims-Announcement.pdf ........................................................... 3
Todd Stacy, Cliff Sims’ ‘Team of Vipers’ book set for release January 29, ALA. DAILY NEWS,
Nov. 19, 2018, www.aldailynews.com/cliff-sims-team-of-vipers-book-setfor-release-january-29 ................................................................................................................. 3
Wright & Miller, 10 Federal Practice and Procedure § 2759 (1973)............................................ 20
Wright & Miller, 10B Federal Practice and Procedure § 2757 (4th ed. 2013) ............................. 19
Wright & Miller, 10B Federal Practice and Procedure § 2759 (4th ed. 2013) ............................. 21

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INTRODUCTION
Private employers do not violate the First Amendment when they bring claims in arbitration
to enforce a nondisclosure agreement even if the employee they are enforcing that agreement
against later served in government. Plaintiff disagrees, but he has no legitimate basis for doing so.
The plaintiff does not dispute that there is a contract between him and Donald J. Trump for
President, Inc. (the “Campaign”), that he freely signed the contract, that the contract contained
restrictions on his disclosure of information related to his employment, that the plaintiff published
a book in which he disclosed information covered by those contractual disclosure restrictions, or
that the contract contains a provision requiring that he arbitrate any claims arising out of the
contract. Nor does plaintiff advance any allegation that the Government is in any way restricting
or infringing his speech. To the contrary, he has been on a lengthy media tour that amply
demonstrates he has not been censored, silenced, or otherwise chilled from exercising his First
amendment rights. Plaintiff’s claims should be dismissed, for several reasons.
First, the Federal Arbitration Act (“FAA”) requires that private arbitrators decide the
threshold question of arbitrability where, as here, the relevant agreement assigns that question to
the arbitrator. Plaintiff’s sole claim is that the Campaign’s arbitration agreement is invalid, such
that the Campaign’s arbitration efforts ought to be enjoined. But under plaintiff’s agreement, that
question is for the arbitrator. For that reason alone, the Court should dismiss plaintiff’s complaint.
Second, the Court should dismiss the complaint for lack of subject-matter jurisdiction. This
is clear both because the plaintiff has not identified any applicable waiver of sovereign immunity
that entitles him to sue the United States, and because plaintiff has not alleged any actual or
imminent injury at the hands of the defendants sufficient to supply standing. Plaintiff does not
actually allege that the Campaign’s filing of an arbitration action has had the effect of censoring,

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silencing, or even chilling his speech, and plaintiff’s own actions clearly controvert any such
allegation.

And for similar reasons, plaintiff has failed to demonstrate that his claim is

constitutionally or prudentially ripe. Each of these jurisdictional defects independently compels
dismissal of plaintiff’s complaint.
Finally, because plaintiff’s claim is based on the Declaratory Judgment Act, this Court
retains discretion over whether to exercise jurisdiction. And the factors that govern whether to
withhold jurisdiction over a Declaratory Judgment Act claim weigh against exercising jurisdiction
here, where an arbitration proceeding is already pending and is fully capable of resolving the issues
plaintiff has raised. Plaintiff’s real goal appears to be circumventing that arbitration proceeding,
which is not an appropriate use of the Declaratory Judgment Act. For that reason, too, the Court
should dismiss the complaint.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, plaintiff was employed by Donald J. Trump for President, Inc. Compl. ¶¶ 3, 13.
In connection with that employment, plaintiff signed a contract (“Agreement”) in which he agreed
to certain conditions on the disclosure or publication of certain information. Id. ¶ 13; see generally
Agreement, attached hereto as Ex. A. These conditions included an agreement “not to disclose,
disseminate, or publish, or cause to be disclosed, disseminated, or published” any “information
(whether or not embodied in any media) of a private . . . or confidential nature . . . including
information with respect to the personal life, political affairs, and/or business affairs of Mr. Trump
or of any . . . [m]ember” of Mr. Trump’s family. Id. at 1, 3. The Agreement further provided that
“any dispute arising under or relating to” the Agreement would be “submitted to binding
arbitration in the State of New York pursuant to the rules for commercial arbitrations of the
American Arbitration Association” and that “[j]udgment upon the award rendered by an arbitrator

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may be entered in any court having jurisdiction.” Id. at 4.
On November 19, 2018, St. Martin’s Press announced that on January 29, 2019, plaintiff
would publish his book, Team of Vipers: My 500 Extraordinary Days in the Trump White House.
Compl. ¶ 15; Press Release, St. Martin’s Press, Former White House Staffer to Release First
Honest

Insider’s

Account

of

the

Trump

Administration

(Nov.

19,

2018),

https://us.macmillan.com/wp-content/uploads/2018/11/Cliff-Sims-Announcement.pdf (cited in
Compl. ¶ 15). That same day, an article in the Alabama Daily News stated that plaintiff “wrote in
an email to friends” informing them that the book was “a memoir of [his] time on the Trump
campaign and in the White House.” Todd Stacy, Cliff Sims’ ‘Team of Vipers’ book set for release
January 29, ALA. DAILY NEWS, Nov. 19, 2018, www.aldailynews.com/cliff-sims-team-of-vipersbook-set-for-release-january-29/ (cited in Compl. ¶ 15). See also Instagram post of Cliff Sims
(Nov. 22, 2018), https://www.instagram.com/p/Bqgbi5uHMrv/ (“On January 29, a memoir of my
time on the @realdonaldtrump campaign and in the @whitehouse will be published by St. Martin’s
Press.”).
Prior to the January 29, 2019 publication date, excerpts of plaintiff’s book were published
by several media outlets. See Compl. ¶ 16 (citing excerpts published in Vanity Fair, Breitbart,
and The Washington Post). “Each of these excerpts dealt with matters learned during Mr. Sims’
service as a federal employee” in the White House. Id. Further, “at no time prior to the public
release of “Team of Vipers” on January 29, 2019, did [President Trump or the United States] take
any action against Mr. Sims or seek to prevent the book’s publication.” Id. ¶ 17.
For the week of February 3, 2019, plaintiff’s book was the sixth most sold nonfiction book
on Amazon.com. See Amazon.com, Amazon Charts: The Top 20 Most Sold & Most Read Books
of the Week, Week of February 3, 2019, https://www.amazon.com/charts/-2019-02-

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03/mostsold/nonfiction/. Plaintiff’s book debuted as the third bestselling book on the February 17,
2019 The New York Times Best Sellers list for Combined Print & E-Book Nonfiction. THE NEW
YORK TIMES Best Sellers: Combined Print & E-Book Nonfiction, N.Y. TIMES (Feb. 17, 2019),
available at https://www.nytimes.com/books/best-sellers/2019/02/17/. As of the filing of this
brief, plaintiff’s book remains for sale on Amazon.com. See Amazon.com, Team of Vipers; My
500 Extraordinary Days in the Trump White House by Cliff Sims, https://www.amazon.com/TeamVipers-Extraordinary-Trump-White/dp/125022389X/ref=tmm_hrd_swatch_0?_encoding=UTF8&qid=&sr= (last accessed April 25, 2019). And on April 15, 2019, plaintiff promoted the sale of
his

book

on

Twitter.

See

Tweet

of

Cliff

Sims

(Apr.

15,

2019),

https://twitter.com/Cliff_Sims/status/1117933635053735942.
As recently as March 19, 2019, plaintiff posted an excerpt from the book on Twitter. See
Tweet of Cliff Sims (Mar. 19, 2019), https://twitter.com/Cliff_Sims/status/1108100214299201536;
see

also

Tweet

of

Cliff

Sims

(Feb.

14,

2019),

https://twitter.com/Cliff_Sims/status/1096061262935609347; Tweet of Cliff Sims (Feb. 5, 2019),
https://twitter.com/Cliff_Sims/status/1092986210442719233. 1 And plaintiff has spoken recently
to the media about information he learned during his federal employment. See, e.g., Sam Brodey
& Asawin Suebsaeng, Trump to GOP: Sorry, but You’re Gonna Have to Campaign on Obamacare

1

Pursuant to Federal Rule of Evidence 201(b), a court may take judicial notice of any fact that is
not subject to “reasonable dispute because it (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Applying this standard, courts in this district and
others have taken judicial notice of Internet postings in resolving motions to dismiss. See, e.g.,
Fairbanks v. Roller, 314 F. Supp. 3d 85, 88 n.1 (D.D.C. 2018); Farah v. Esquire Magazine, Inc.,
863 F. Supp. 2d 29, 35 (D.D.C. 2012); Alexander v. Metro-Goldwyn-Mayer Studios, Inc., Case
No. CV 17-3123-RSWL-KSx, 2017 WL 5633407, Slip op. *3 (C.D. Cal. 2017); In re
McConnell, Case No. 2:15–cv–08183–R, 2015 WL 6125649, Slip op. *5 n.7 (C.D. Cal. Bankr.
Oct. 8, 2105).

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Repeal, THE DAILY BEAST, Apr. 2, 2019, available at https://www.yahoo.com/news/trumprepublicans-sorry-gonna-campaign-015340202.html (describing recent remarks plaintiff made to
The Daily Beast regarding efforts to repeal the Affordable Care Act undertaken while President
Trump was in office).
On January 31, 2019, the Campaign filed an arbitration claim against plaintiff for
“purported breaches” of the Agreement. Compl. ¶ 21. Then, on February 11, 2019, plaintiff filed
this suit against President Donald J. Trump, in his official capacity, and the United States
(collectively, “defendants”), asserting a single cause of action under the Declaratory Judgment
Act, 28 U.S.C. §§ 2201-2202, and the First Amendment to the U.S. Constitution. Id. ¶¶ 29-34.
The complaint alleges that the “Campaign’s Demand for Arbitration is nothing but a subterfuge
for the actions of the [defendants] and [was] undertaken under express authorization and
instruction, and certainly with the blessing of, President Trump” and thus “sufficiently and
constructively qualif[ies] as ‘state action’ for purposes of First Amendment jurisdictional
authority.” Id. ¶ 32. The complaint further alleges that because the Campaign filed an arbitration
claim against plaintiff for purported breaches of his Agreement, defendants here have “infringed
upon [plaintiff’s] First Amendment rights as a former federal employee and acted contrary to the
interests of public policy.” Id. The complaint asks the Court to “[e]nter a declaratory judgment in
favor of the Plaintiff declaring that the Defendants may not enforce, either directly or through nonU.S. government cutouts, any nondisclosure agreements that seek to unconstitutionally infringe
upon his First Amendment rights,” and to “[p]ermanently enjoin the Defendants from initiating or
pursuing further proceedings against the Plaintiff for publication of unclassified information
regarding [(sic)] which he learned during his tenure as a federal employee.” Id., Prayer for Relief.

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STANDARD OF REVIEW
Defendants move the court to dismiss the complaint. The Federal Arbitration Act (“FAA”),
9 U.S.C. § 2, governs “any arbitration agreement within the coverage of the Act.” Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). “[T]he validity of an unambiguous
arbitration agreement is a question of law for the court that may be resolved by summary
disposition under the summary judgment standard of Federal Rule of Civil Procedure 56(c).” Sakyi
v. Estee Lauder Cos., 308 F. Supp. 3d 366, 375 (D.D.C. 2018) (citing Aliron Int’l, Inc. v. Cherokee
Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008)). The party advocating arbitration need
only “‘demonstrat[e] that an agreement to arbitrate was made,’” and “‘the party resisting
arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.’” Id.
(quoting Hines v. Overstock.com, Inc., 380 F. App’x 22, 24 (2d Cir. 2010), and Green Tree Fin.
Corp. – Ala. v. Randolph, 531 U.S. 79, 91 (2000)). See also id. (noting that the moving party need
not “‘show initially that the agreement would be enforceable, merely that one existed’” (quoting
Hines, 380 F. App’x at 24)). Whether a defendant has chosen to file a motion to compel arbitration,
a motion for summary judgment, or a motion to dismiss in favor of arbitration, the “distinction . .
. is immaterial for the purposes of [the court’s] standard of review analysis.”

Nelson v.

Insignia/Esg, Inc., 215 F. Supp. 2d 143, 147 n.3 (D.D.C. 2002). And when “‘all of the plaintiff’s
claims must be submitted to arbitration’ dismissal is appropriate.” Riley v. BMO Harris Bank,
N.A., 61 F. Supp. 3d 92, 103 (D.D.C. 2014) (quoting Nelson, 215 F. Supp. 2d at 158).
Defendants also move to dismiss the complaint for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Plaintiff bears the burden of demonstrating jurisdiction.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because the Court has “‘an
affirmative obligation . . . to ensure that it is acting within the scope of its jurisdictional authority,’”

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the Court may “consider matters outside the pleadings” in addressing defendants’ motion to
dismiss under Rule 12(b)(1) without converting it to a motion for summary judgment. Forrester
v. U.S. Parole Comm’n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004) (citation omitted).
Finally, defendants urge the court to decline jurisdiction over the sole claim in plaintiff’s
complaint, which is brought under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. The
Supreme Court has explained that “[t]he Declaratory Judgment Act was an authorization, not a
command,” Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 112 (1962), and “whether or not to
accede to a plaintiff’s request for declaratory relief under the Declaratory Judgment Act lies within
the court’s discretion.” FiberLight, LLC v. Nat’l R.R. Passenger Corp., 81 F. Supp. 3d 93, 113
(D.D.C. 2015) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)).
ARGUMENT
I.

THE ARBITRATION PROVISION OF PLAINTIFF’S
REQUIRES DISMISSING HIS COMPLAINT.

AGREEMENT

Plaintiff previously agreed to resolve any disputes with the Campaign in binding
arbitration. Ex. A at 4. That agreement requires plaintiff to take his objections to his employment
contract’s nondisclosure provision to the arbitrator currently presiding over the Campaign’s
arbitration proceeding against him. Id. Plaintiff has instead come to this Court arguing that the
Campaign’s arbitration demand infringes his First Amendment rights, but that is simply an attack
on the validity of arbitration—something the FAA requires be litigated before the arbitrator where,
as here, the parties’ contract contains an arbitration clause that delegates the question of
arbitrability to the arbitrator. For that reason alone, dismissal is appropriate.
Plaintiff’s claim falls within his arbitration agreement with the Campaign. Indeed, his
claim is entirely about the Campaign and its ability to initiate an arbitration proceeding against
him. That issue is “govern[ed]” by “[f]ederal law in the terms of the Arbitration Act.” Moses H.

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Cone Mem. Hosp., 460 U.S. at 24. The FAA reflects “both a liberal federal policy favoring
arbitration and the fundamental principle that arbitration is a matter of contract,” AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation marks and citation omitted), and
“strongly favors the enforcement of agreements to arbitrate as a means of securing prompt,
economical and adequate solution of controversies,” Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 479-80 (1989) (internal quotation marks and citation omitted).
Plaintiff’s Agreement with the Campaign clearly delegates questions of arbitrability to the
arbitrator. The Agreement’s arbitration provision provides that “any dispute arising under or
relating to this agreement may . . . be submitted to binding arbitration in the State of New York
pursuant to the rules for commercial arbitrations of the American Arbitration Association [(“AAA
rules”)], and [plaintiff] hereby agree[s] to and will not contest such submissions.” Ex. A at 4. As
courts in this district and “numerous” circuit courts of appeals have held, “‘incorporation of the
AAA rules constitutes clear and unmistakable evidence that the parties intended the question of
arbitrability be answered by an arbitrator.” Mercadante v. XE Servs., LLC, 78 F. Supp. 3d 131,
138 (D.D.C. 2015); see also Sakyi, 308 F. Supp. 3d at 378 (noting that this court, and every circuit
court to address the question, “repeatedly has held that adopting the AAA rules makes the issue of
arbitrability one for the arbitrator, not the court, to decide” and citing cases); Haire v. Smith, Currie
& Hancock LLP, 925 F. Supp. 2d 126, 132-33 (D.D.C. 2013) (citing Rep. of Argentina v. BG
Group PLC, 665 F.3d 1363, 1371 (D.C. Cir. 2012)) (finding that “[a] recent D.C. Circuit opinion
strongly suggests that the D.C. Circuit would view incorporation of the AAA Rules as satisfying”
the clear and unmistakable standard, and noting that “courts in this jurisdiction . . . have . . . found
that incorporation of the AAA Rules satisfies the . . . standard”); accord Fallo v. High-Tech Inst.,
559 F.3d 874, 878 (8th Cir. 2009); Contec Corp. v. Remote Solution, Co., 398 F.3d 205, 211 (2d

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Cir. 2005). Plaintiff’s effort to avoid arbitration must accordingly be raised in the ongoing
arbitration, rather than here.
Plaintiff might argue that his agreement to resolve arbitrability in arbitration is somehow
legally invalid, revocable, or unenforceable, see 9 U.S.C. § 2, which would be something the Court
ought to “consider . . . before ordering compliance.’” Mercadante, 78 F. Supp. 3d at 140. But that
sort of challenge “must be directed specifically at the delegation agreement and not at ‘another
provision of the contract, or to the contract as a whole,’” id. (quoting Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. 63, 70 (2010)), and plaintiff asserts no challenge to the provision in the
Agreement delegating questions of arbitrability to an arbitrator. In fact, plaintiff’s complaint says
nothing about the delegation provision at all. Rather, plaintiff challenges the “application of [the
Agreement]” as a whole and the filing of “an arbitration claim against [plaintiff] for purported
breaches of [the Agreement].” Compl. ¶¶ 10, 21. That sort of generalized challenge is not a
challenge specifically to the delegation and is thus something the delegation provision requires
plaintiff to raise in arbitration. See, e.g., Mercadante, 78 F. Supp. 3d at 140 (explaining that
because plaintiff’s claim “does not specifically address the delegation agreement itself as required
by Rent-A-Center,” plaintiff has “failed to successfully challenge the enforceability of the
delegation agreement”); Haire, 925 F. Supp. 2d at 133.
Plaintiff’s only claim seeks invalidation of his ongoing arbitration proceeding and where,
as here, “‘all of the plaintiff’s claims must be submitted to arbitration’ dismissal is appropriate.”
Riley, 61 F. Supp. 3d at 103 (quoting Nelson, 215 F. Supp. 2d at 158); see also, e.g., W&T Travel
Servs., LLC v. Priority One Servs., Inc., 69 F. Supp. 3d 158, 174 (D.D.C. 2014) (“follow[ing] the
majority rule regarding the propriety of dismissing a case where all of the claims are subject to
resolution by the arbitrator”); Haire, 925 F. Supp. 2d at 134 (dismissing case where “the parties

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intended the issue of arbitrability to be resolved by the arbitrator[, and] all other claims brought by
plaintiffs are essentially challenges to aspects of the [agreement], which likewise belong with the
arbitrator”); Fox v. Computer World Servs. Corp., 920 F. Supp. 2d 90, 105 n.9 (D.D.C. 2013)
(noting that the court was “dismiss[ing] this case rather than stay[ing] it pending arbitration, in
accordance with the approach adopted by other courts when all claims must be submitted to
arbitration”); accord Sakyi, 308 F. Supp. 3d at 387 n.9 (citing cases). For that reason alone, the
Court should dismiss the complaint.
II.

THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECTMATTER JURISDICTION.
Even if plaintiff could avoid arbitration, this Court would not have jurisdiction to hear his

claim for a variety of reasons. First, and most fundamentally, plaintiff has sued the United States
but sovereign immunity bars that claim. Second, plaintiff has sued the President in his official
capacity but this Court cannot redress any alleged injury at the President’s hands. That is because,
“[w]ith regard to the President, courts do not have jurisdiction to enjoin him, and have never
submitted the President to declaratory relief.” Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir.
2010). Third, plaintiff has not alleged any constitutionally cognizable injury: he asserts that the
defendants have somehow threatened his right to speak when in fact he has been exercising his
freedom of speech liberally and without restraint. Finally, because plaintiff has not alleged any
limitation on his speech or any actual harm from the arbitration to which he objects, plaintiff’s
claims are neither constitutionally nor prudentially ripe and should be dismissed on that basis too.
A. Sovereign Immunity Bars Plaintiff’s Claims Against the United States.
Sovereign immunity bars plaintiff’s claim against the United States. “It is axiomatic that
the United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction,” United States v. Mitchell, 463 U.S. 206, 212 (1983), and a court lacks

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jurisdiction over claims against the United States unless the United States’ sovereign immunity
has been explicitly waived, see Dep’t of the Army v. Fed. Labor Relations Auth., 56 F.3d 273, 275
(D.C. Cir. 1995) (citing United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947));
First Va. Bank v. Randolph, 110 F.3d 75, 77 (D.C. Cir. 1997) (“if the government has not
consented to the suit, sovereign immunity requires the court to dismiss the action for lack of
jurisdiction”). Only Congress may waive the sovereign immunity of the United States, and it must
do so equivocally. See, e.g., Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575
(D.C. Cir. 2003) (“[W]aiver of sovereign immunity must be unequivocally expressed in the
statutory text and strictly construed, in terms of its scope, in favor of the sovereign.”) (internal
quotation marks and citation omitted); Dorsey v. U.S. Dep’t of Labor, 41 F.3d 1551, 1555 (D.C.
Cir. 1994) (“The federal government’s waiver of sovereign immunity must be unequivocally
expressed.”).
Plaintiff has pointed to no applicable waiver of sovereign immunity. Plaintiff cites as the
basis of this Court’s jurisdiction 28 U.S.C. § 1331 and the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-2202. Compl. ¶ 1. Neither statute waives sovereign immunity. Section 1331, while
establishing district courts’ jurisdiction over federal questions, does not waive the sovereign
immunity of the United States. See Stone v. Holder, 859 F. Supp. 2d 48, 51 (D.D.C. 2012). The
Declaratory Judgment Act authorizes declaratory relief as a remedy but likewise does not waive
the federal government’s sovereign immunity. See Walton v. Fed. Bureau of Prisons, 533 F. Supp.
2d 107, 114 (D.D.C. 2008).

And though plaintiff alleges his claims arise under the First

Amendment, the Constitution does not waive sovereign immunity. See Lynch v. United States,
292 U.S. 571, 582 (1934) (sovereign immunity “applies alike to causes of action arising under acts
of Congress . . . and to those arising from some violation of rights conferred upon the citizen by

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the Constitution”); Benvenuti v. Dep’t of Def., 587 F. Supp. 348, 352 (D.D.C. 1984) (the
“Constitution itself” does not “operate as such [a] waiver[]”). The Court should thus “dismiss the
action for lack of jurisdiction” pursuant to Rule 12(b)(1). First Va. Bank, 110 F.3d at 77.
B. Plaintiff’s Claim Against the President Should Be Dismissed Because
Declaratory Relief May Not Be Ordered Against the President In His Official
Capacity.
Plaintiff’s claim against the President in his official capacity fails for a similarly
fundamental reason: whatever injury plaintiff alleges is not “redressable by a favorable ruling”
from this Court. Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 149 (2010). The Supreme
Court and D.C. Circuit have made clear that courts lack authority to issue injunctive or declaratory
relief against the President in his official capacity. See Mississippi v. Johnson, 71 U.S. (4 Wall)
475, 501 (1866) (courts lack jurisdiction “to enjoin the President in the performance of his official
duties”); Newdow, 603 F.3d at 1013 (plaintiff failed to show redressability where the “only
apparent avenue of redress for plaintiffs’ claimed injuries would be injunctive or declaratory relief
against . . . the President himself” finding such relief “unavailable” because “[w]ith regard to the
President, courts do not have jurisdiction to enjoin him, and have never submitted the President to
declaratory relief”) (citing Johnson, 71 U.S. (4 Wall.) at 499, and Franklin v. Massachusetts, 505
U.S. 788, 827-28 (1992) (Scalia, J., concurring)); Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C.
Cir. 1996) (recognizing that the same concerns that preclude injunctive relief against the President
also preclude declaratory relief). 2 Plaintiff’s claims against the President in his official capacity

2

Numerous other courts have held that the President is not subject to declaratory and injunctive
relief when sued in his official capacity. See, e.g., Int’l Refugee Assistance Project v. Trump, 857
F.3d 554, 605 (4th Cir. 2017) (holding that “the district court erred in issuing an injunction against
the President himself,” because “‘in general, this court has no jurisdiction of a bill to enjoin the
President in the performance of his official duties’” (quoting Franklin, 505 U.S. at 802-03 (opinion
of O’Connor, J.))), vacated and remanded on other grounds, 138 S. Ct. 353 (2017); Newdow v.
Bush, 391 F. Supp. 2d 95, 106-07 (D.D.C. 2005) (holding that plaintiff failed to show redressability

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seek only declaratory and injunctive relief. He thus cannot show his claims are “capable of being
redressed by a court order,” let alone that they are likely to be redressed. Lemon v. Geren, 514
F.3d 1312, 1314 (D.C. Cir. 2008).
Plaintiff has sued the President in his official capacity and seeks an order (1) enjoining the
President from “initiating or pursuing further proceedings against the Plaintiff for publication of
unclassified information regarding which [(sic)] he learned during his tenure as a federal
employee”, and (2) declaring that the President “may not enforce . . . any nondisclosure agreements
that seek to unconstitutionally infringe upon [the plaintiff’s] First Amendment rights.” See
Compl., Prayer for Relief. That is relief this Court cannot provide, since a federal “court—whether
via injunctive or declaratory relief—does not sit in judgment of a President’s executive decisions.”
Newdow, 603 F.3d at 1012. Plaintiff thus lacks standing to bring his claim against the President
and that claim should be dismissed. Id. at 1013 (dismissal appropriate where the “only apparent
avenue of redress for plaintiffs’ claimed injuries would be injunctive or declaratory relief against
. . . the President himself”).
C. Plaintiff Lacks Standing Because He Has Not Alleged A Cognizable Injury.
Plaintiff lacks standing to assert his claim against both defendants for an additional reason:
he has not alleged any injury that is sufficiently imminent to support a cause of action. Standing
inquiries should be “especially rigorous when reaching the merits of the dispute would force [the

“where only an injunction or declaratory judgment against the President can redress plaintiff's
injury,” finding that “the Court is without the authority to grant such relief[ and t]o conclude
otherwise[] would be to render meaningless the words of the Supreme Court and the D.C. Circuit
that injunctions and declaratory judgments may not be issued against the President”); Cty. of Santa
Clara v. Trump, 250 F. Supp. 3d 497, 539–40 (N.D. Cal. 2017); Settle v. Obama, No. 3:15-cv-365,
2015 WL 7283105, at *6 (E.D. Tenn. Nov. 17, 2015); Day v. Obama, No. 1:15-cv-00671, 2015
WL 2122289, at *1 (D.D.C. May 1, 2015); Willis v. U.S. Dep’t of Health & Human Servs., 38 F.
Supp. 3d 1274, 1277 (W.D. Okla. 2014)

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court] to decide whether an action taken by one of the other two branches of the Federal
Government was unconstitutional.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)
(internal quotations and citation omitted). And here, plaintiff has failed to plead the sort of
imminently impending injury necessary to confer standing.
Although “imminence” is a “somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—
that the injury is certainly impending.” Lujan, 504 U.S. at 565 n.2. The Supreme Court has thus
“repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in
fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 568 U.S. at 409
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis added by court)). “‘[S]ome
day’ intentions—without any description of concrete plans, or indeed even any specification of
when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our
cases require.” Lujan, 504 U.S. at 565 (emphasis in original); see also NRDC v. EPA, 464 F.3d 1,
6 (D.C. Cir. 2006) (“We . . . generally require that petitioners demonstrate a ‘substantial
probability’ that they will be injured.”).
Plaintiff has not pled this sort of imminent injury. The heart of plaintiff’s complaint is his
asserted right “under the First Amendment to the United States Constitution to be free from
unlawful infringement upon or restraint of his ability to disclose unclassified information regarding
[(sic)] which he learned during his tenure as a federal employee.” Compl. ¶ 30. But while plaintiff
alleges that defendants “ha[ve] infringed upon Mr. Sims’ First Amendment rights as a former
federal employee,” id. ¶ 32, his complaint does not contain any allegations that give content to this
conclusory assertion. Rather, the allegations addressing plaintiff’s purported current or threatened
future injury are limited to the following:

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(1) “the Trump Campaign . . . filed an arbitration claim against Mr. Sims for purported
breaches of an NDA,” and such claim “seeks monetary damages, . . . and to enjoin Mr.
Sims from making” certain disclosures, id. ¶ 21;
(2) the defendants “through the use of private surrogates, [are] seeking to
unconstitutionally censor and punish” the plaintiff for disclosing certain information,
id. ¶ 28;
(3) defendants “seek to penalize Mr. Sims for exercising his First Amendment right to
disclose unclassified information” he learned during his federal employment, id. ¶ 31;
(4) defendants “seek to prohibit any further remarks or statements by Mr. Sims regarding”
information he learned during his federal employment, id.;
(5) defendants’ actions “demand the return of information or materials Mr. Sims has in his
possession from his tenure as a federal employee,” id.;
(6) due to defendants’ actions, plaintiff “could suffer monetary penalties for the publication
of ‘Team of Vipers’, as well as for any future remarks . . . he makes in the future
regarding his” federal employment, id. ¶ 33; and
(7) plaintiff “has suffered or may suffer actual adverse and harmful effects, including, but
not limited to, possible civil penalties, a delay in being able to timely comment on
information of public interest, and/or lost or jeopardized present or future financial
opportunities,” id. ¶ 34.
None of these allegations establish injury for standing purposes.
Allegation (1). For the first allegation, plaintiff asserts that the Campaign’s arbitration
action against him violates his First Amendment rights.

But nowhere does plaintiff make

allegations showing how the Campaign’s initiation of an arbitration action has had the effect of
censoring, silencing, or even chilling his speech.
Allegations (2)-(5).

In allegations two through five, plaintiff never claims that the

defendants have censored or punished him for his speech; he alleges only that defendants “seek”
to censor or punish him for his speech in various vague ways. See id. ¶¶ 28, 31. And in reality, it
is clear plaintiff has not been censored at all. As of the filing of this brief, plaintiff’s book is for
sale on Amazon.com. See supra at 4 (citing Amazon.com page). As recently as April 15, 2019,

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plaintiff has promoted the sale of his book on social media. See supra at 4 (citing Tweets of Cliff
Sims). And plaintiff has spoken recently to the media about information he learned during his
federal employment. See supra at 4-5 (citing Brodey & Suebsaeng, “Trump to GOP: Sorry, but
You’re Gonna Have to Campaign on Obamacare Repeal”). The court may consider these public
facts in assessing its jurisdiction, see Forrester, 310 F. Supp. 2d at 167, and they make clear that
the Campaign’s January 31, 2019 arbitration claim has not infringed plaintiff’s speech. As for
plaintiff’s conclusory allegation regarding the return of material he possesses from his time as a
federal employee, plaintiff never alleges that this supposed seeking of material has any connection
to his speech. Nor does he allege that the material is actually his property, as opposed to
governmental property and information he is legally obligated to return upon leaving the
government’s employ.
In short, while it is true that “[s]uits alleging injury in the form of a chilling effect upon
plaintiff’s First Amendment rights are more readily justiciable than comparable suits not so
affected with a First Amendment interest,” French v. Devine, 547 F. Supp. 443, 446 (D.D.C. 1982)
(citing Nat’l Student Ass’n v. Hershey, 412 F.2d 1103, 1113 (D.C. Cir. 1969)), plaintiff has not
alleged that defendants have chilled him from speech in which he otherwise desires to engage, let
alone alleged a chilling effect that is “sufficiently strong to render a case justiciable.” Id.
Allegations (6)-(7). Finally, the remainder of plaintiff’s allegations do not describe
“threatened harms” that are certainly impending. Where a plaintiff “does not allege that it has yet
suffered any injury” that its complaint seeks to redress, then “its only hope for standing rests upon
showing that a threatened harm is ‘certainly impending.’” J. Roderick MacArthur Found. v. F.B.I.,
102 F.3d 600, 606 (D.C. Cir. 1996) (emphasis in original) (quoting Lujan, 504 U.S. at 564 n.2).
To make such a showing, “[i]t is not enough for the [plaintiff] to assert that it might suffer an injury

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in the future, or even that it is likely to suffer an injury at some unknown future time. Such
‘someday’ injuries are insufficient.” Id. (quoting Lujan, 504 U.S. at 564).
Allegations (6) and (7) do not describe “threatened harms” that are “certainly impending.”
Rather, they describe the remedies for breach laid out in the Agreement plaintiff entered into with
the Campaign, see Ex. A at 3-4, which the Campaign could therefore request as relief in arbitration.
But no arbitration award has been entered—for or against the plaintiff—and plaintiff does not
allege when any such decision might issue. Plaintiff’s future injuries are thus entirely hypothetical
rather than “certainly impending.” See J. Roderick MacArthur Foundation, 102 F.3d at 606.
Moreover, because the outcome of the arbitration is unknown, plaintiff’s threatened harms
constitute mere “‘allegations of possible future injury’ [which] are not sufficient” to establish
standing. Clapper, 568 U.S. at 409 (citation omitted).
D. Plaintiff’s Claim is Unripe Because An Arbitrator Has Not Yet Determined
Whether the Agreement Is Enforceable Or Whether Plaintiff Breached the
NDA.
Finally, even if the Court were to conclude that plaintiff's allegations could establish an
injury sufficient to support standing, his claim still must be dismissed because it is not yet ripe.
“The ripeness doctrine generally deals with when a federal court can or should decide a case,” Am.
Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012), and has both constitutional and
prudential dimensions. See Atl. States Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C. Cir.
2003). As with standing, constitutional ripeness requires “that an injury in fact be certainly
impending.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996).
And a court considering prudential ripeness “evaluate[s] (1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park
Hospitality Ass’n v. Dep’t of Inter., 538 U.S. 803, 808 (2003); see Am. Petroleum, 683 F.3d at 386.

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Here, plaintiff's claims are constitutionally unripe for similar reasons to those that deprive
him of standing. Plaintiff has not alleged that he has been prevented from speaking or that his
speech is currently being infringed, which it plainly is not given that plaintiff continues to sell his
book, publish excerpts of his book on social media, and disclose to the media information he
learned as a federal employee. See supra at 4-5. Even if plaintiff had alleged that defendants’
actions chilled him from speech in which he otherwise desires to engage, the same evidence of
plaintiff’s recent actions would refute any such allegation of subjective chill. See supra at 4-5.
And finally, the fact that the arbitration decision plaintiff fears has not been entered (and may never
be entered) further demonstrates why his claims are unripe.
Moreover, even if the constitutional threshold for ripeness were met, prudential
considerations would still weigh against considering plaintiff’s claim at this time. Because the
arbitration award plaintiff fears has not yet been entered, there is no way to know whether that
hypothetical award will infringe on his First Amendment rights or otherwise cause him hardship.
To show hardship, a plaintiff must show that withholding review would result in “immediate and
significant” hardship.

Am. Petroleum, 683 F.3d at 389 (internal quotation marks and

citationsomitted). Here, the facts show that no such hardship exists. Plaintiff has continued to
exercise his First Amendment rights regardless of the fact that a third party—the Campaign—is
undertaking precisely the actions plaintiff asks the Court to forbid the defendants from taking. See
Compl., Prayer for Relief ¶¶ 1 (requesting that the Court declare that the defendants “may not
enforce . . . any nondisclosure agreements that seek to constitutionally infringe upon [plaintiff’s]
First Amendment rights”) & 2 (requesting that the Court enjoin the defendants from “initiating or
pursuing further proceedings against the Plaintiff for publication of unclassified information . . .
which he learned during his tenure as a federal employee”). For all these reasons, the Court should

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dismiss plaintiff’s complaint as unripe.
III.

THE RELEVANT FACTORS WEIGH STRONGLY AGAINST THE COURT
EXERCISING JURISDICTION OVER PLAINTIFF’S DECLARATORY
JUDGMENT ACT CLAIM.
Finally, the Court should also dismiss plaintiff’s claim using its discretion to decline

jurisdiction under the Declaratory Judgment Act, the principal basis for plaintiff’s suit. The Act
provides, in relevant part, that “[i]n a case of actual controversy within its jurisdiction,” a “court
of the United States, upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not further relief is or
could be sought.” 28 U.S.C. § 2201(a). As the D.C. Circuit has explained, the Declaratory
Judgment Act “settle[s] legal rights and remove[s] uncertainty and insecurity from legal
relationships without awaiting a violation of the rights or a disturbance of the relationships.” Am.
Fed’n of Gov’t Emps. v. O’Connor, 747 F.2d 748, 759 (D.C. Cir. 1984) (internal quotation marks
and citations omitted).
Claims brought under the Declaratory Judgment Act must stem from an “actual
controversy,” and in determining whether a claim meets this requirement, a court asks “whether
the facts alleged, under the circumstances, show that there is a substantial [conflict], between
parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance
of a declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).
If one or both of the parties have acted so as to make litigation “imminent” and “inevitable” absent
a declaration, then a declaratory judgment is appropriate. Wright & Miller, 10B Federal Practice
and Procedure § 2757 (4th ed. 2013). But even if there is an actual controversy, and the plaintiff
has standing to file suit for a declaratory judgment, district courts retain discretion to decline to
exercise jurisdiction or provide declaratory relief under the Declaratory Judgment Act. See Wilton,

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515 U.S. at 288 (noting that the Declaratory Judgment Act “created an opportunity, rather than a
duty, to grant a new form of relief to qualifying litigants”); see also ACLU Found. of S. Cal. v.
Barr, 952 F.2d 457, 466 (D.C. Cir. 1991) (“The Declaratory Judgment Act, 28 U.S.C. § 2201,
provides only that a district court ‘may’ declare the ‘rights and other legal relations’ of the parties,
not that it must. The decision whether to grant this relief is discretionary.”); Lovitky v. Trump, 308
F. Supp. 3d 250, 259 (D.D.C. 2018) (“As the use of the word ‘may’ suggests, [the Declaratory
Judgment Act] . . . is permissive, not mandatory: even when a suit otherwise satisfies subject matter
jurisdictional prerequisites, the Act gives courts discretion to determine whether and when to
entertain an action.” (internal quotation marks and citations omitted)).
The D.C. Circuit has identified a “series of factors that are among the ‘relevant’
considerations in deciding whether to withhold jurisdiction over a claim brought under the DJA.”
FiberLight, 81 F. Supp. 3d at 114. These factors are: (1) “whether [a declaration] would finally
settle the controversy between the parties;” (2) “whether other remedies are available or other
proceedings pending;” (3) “the convenience of the parties;” (4) “the equity of the conduct of the
declaratory judgment plaintiff;” (5) “prevention of ‘procedural fencing’;” (6) “the state of the
record;” (7) “the degree of adverseness between the parties;” and (8) “the public importance of the
question to be decided.” Hanes Corp. v. Millard, 531 F.2d 585, 591 n.4 (D.C. Cir. 1976) (citing
10 Wright & Miller, Federal Practice and Procedure § 2759 (1973)).
Even if this court had subject-matter jurisdiction over plaintiff’s claims against the United
States and the President in his official capacity, the majority of the D.C. Circuit’s factors weigh
heavily against exercising jurisdiction under the DJA. First, as to the availability of other remedies
(factor (2)), an arbitration proceeding is pending, and arbitration may provide plaintiff with the
remedies he seeks here, in the forum in which he contractually agreed to resolve these issues. See

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Compl. ¶ 21; Ex. A at 4; see POM Wonderful LLC v. F.T.C., 894 F. Supp. 2d 40, 44 (D.D.C. 2012)
(declining jurisdiction under the Declaratory Judgment Act where “overlapping proceedings are
pending” and, although not identical to the declaratory judgment action, such proceedings are
“perfectly capable” of resolving the questions raised under the Declaratory Judgment Act). Next,
as to the equity of plaintiff’s conduct (factor (4)), and the avoidance of procedural fencing (factor
(5)), plaintiff is using this lawsuit to “preempt” the arbitration proceeding to which he contractually
agreed claims should be submitted. See Ex. A at 4; see also FiberLight, 81 F. Supp. 3d at 115-16.
As to the public importance of the question to be decided (factor (8)), Wright & Miller have noted
that “courts particularly are reluctant to resolve important questions of public law in a declaratory
action.” 10B Wright & Miller, Federal Practice and Procedure § 2759 (4th ed. 2013). Plaintiff’s
allegations that the defendants, “for the first time ever through the use of private surrogates, [are]
seeking to unconstitutionally censor and punish a former federal employee for disclosing
unclassified information outlining what he saw and observed during his [federal employment],”
Compl. ¶ 28, certainly seems to raise a question of first impression. Accord FiberLight, 81 F.
Supp. 3d at 116 (finding fact that allegations “raise . . . significant questions of law” with farreaching implications weighs against the exercise of jurisdiction under the Declaratory Judgment
Act). And “[t]he final factor that indicates that this Court should decline jurisdiction is the fact
that [plaintiff] appears to be seeking to establish an ‘anticipatory defense’” against the Campaign’s
arbitration claim. Id. Just as in FiberLight, this combination of factors “strongly suggest[s] that
[plaintiff] has moved deftly to invoke the Declaratory Judgment Act in the context of the instant
case in order to engage in ‘a disorderly race to the courthouse,’ and for this reason, too, this Court
should decline the invitation to declare a winner.” Id. (quoting Hanes Corp., 531 F.2d at 593); see
also POM Wonderful, 894 F. Supp. 2d at 45 (noting that “[t]o the extent that [the plaintiff] is

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 Case 1:19-cv-00345-CKK Document 8-1 Filed 04/25/19 Page 30 of 30

seeking, in the current action, to resolve a defense, this court may decline to exercise jurisdiction
to hear the action”). The Court should decline to hear plaintiff’s claim and dismiss the complaint.
CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court dismiss the
complaint with prejudice.

Dated: April 25, 2019

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
JAMES M. BURNHAM
Deputy Assistant Attorney General
CHRISTOPHER R. HALL
Assistant Director
Civil Division, Federal Programs Branch
/s/ Julie Straus Harris
JULIE STRAUS HARRIS (DC Bar # 1021928)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Room 11514
Washington, D.C. 20005
Tel: (202) 353-7633
Fax: (202) 616-8470
E-mail: julie.strausharris@usdoj.gov
Counsel for Defendants

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