Beberman v. U.S. Department of State ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JULIE BEBERMAN,
Plaintiff,
v. Civil Action No. 19-3115 (TJK)
U.S. DEPARTMENT OF STATE et al.,
Defendants.
MEMORANDUM OPINION
Julie Beberman, a Foreign Service career candidate, was denied tenure and was set to be
separated from the Foreign Service in late March 2016. Around this time, she filed several
grievances with the Foreign Service Grievance Board (FSGB) and in each requested interim
relief from separation while the FSGB adjudicated the merits of the grievance. The State
Department opposed her requests for interim relief, and in early March 2016 the FSGB granted
her temporary interim relief while it adjudicated her requests for interim relief. The FSGB has
now denied all Beberman’s requests for interim relief, and the State Department has informed
her that she will be separated from the Foreign Service on October 31, 2019. Proceeding pro se,
Beberman filed this lawsuit in which she asserts that the March 2016 order granting her
temporary interim relief is still in effect and that separating her from the Foreign Service would
violate it and the statute that authorizes it.
Beberman has moved for a temporary restraining order and a preliminary injunction
preventing Defendants from separating her. Defendants, in turn, oppose her motion and have
moved to dismiss her complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. For
the reasons explained below, the Court will deny Defendants’ motion to dismiss and deny
Beberman’s motion for preliminary injunctive relief because she has failed to show that, absent
that relief, she would suffer irreparable harm.
Background
The Foreign Service denied Beberman tenure and scheduled her to be separated from its
ranks in late March 2016. ECF No. 1 ¶¶ 39–40. Around that time, she filed a series of related
grievances with the FSGB; the substance of those grievances is not relevant here. 1 Along with
each grievance, she requested interim relief from separation from the Foreign Service under 22
U.S.C. § 4136(8) while the FSGB adjudicated the merits of her claims. Id. ¶¶ 41–42. The State
Department opposed her requests for interim relief. In March 2016, the FSGB granted
Beberman temporary interim relief while it adjudicated her requests for interim relief. ECF No.
2-1 at 104. In a June 2017 order denying a few of Beberman’s requests for interim relief, the
FSGB ordered that her temporary interim relief would remain in effect until the FSGB resolved
her additional “outstanding requests for interim relief from separation.” ECF No. 5-3 at 57. And
in March 2019, in denying another request for interim relief, the FSGB ordered that Beberman’s
temporary interim relief would remain in effect “only until the Board has adjudicated the
[interim relief] issue still pending at [that] time.” ECF No. 5-4 at 40. In September 2019, the
FSGB denied the last of Beberman’s requests for interim relief. See ECF No. 5-5. A few days
later, the State Department informed Beberman that she would be separated from the Foreign
Service on October 31, 2019. ECF No. 1 ¶¶ 44–47; ECF No. 5 at 3. In response, Beberman
asked the State Department not to separate her. See, e.g., ECF No. 2-1 at 98–100, 102–09. She
argued that because she had filed motions for reconsideration of two of the FSGB’s interim relief
1
Beberman appears to have filed five grievances in total, three of which were consolidated,
resulting in three separate cases and three requests for interim relief. See ECF No. 5-3 at 2; ECF
No. 5-4; ECF No. 5-5.
2
orders, those orders were nonfinal, and therefore her temporary interim relief remained in effect.
See ECF No. 2-1 at 105–09. The State Department acknowledged receiving Beberman’s request
and her pending motions for reconsideration, but informed her that her planned separation would
still proceed. ECF No. 2-1 at 110.
On October 15, 2019, Beberman filed this suit and moved for a temporary restraining
order and a preliminary injunction to prevent her separation. 2 ECF No. 1. She appears to
proceed under the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the Due Process
Clause of the Fifth Amendment. See ECF No. 2 at 3. Defendants opposed her motion and
moved to dismiss the complaint for lack of subject matter jurisdiction. ECF Nos. 5, 6.
Beberman replied and opposed Defendants’ motion to dismiss. ECF No. 8.
Legal Standards
The plaintiff bears the burden of establishing, by a preponderance of the evidence, that
the court has subject matter jurisdiction to hear her claim. Cause of Action Inst. v. Internal
Revenue Serv., 390 F. Supp. 3d 84, 91 (D.D.C. 2019). In deciding a Rule 12(b)(1) motion, the
court treats the complaint’s factual allegations as true, but gives them closer scrutiny than it
would in judging a motion for failure to state a claim. Id.
A party seeking the extraordinary relief of a temporary restraining order or a preliminary
injunction must carry the burden of persuasion to 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 of Full Gospel Churches v.
2
This is at least the eighth federal lawsuit filed by Beberman related to her employment at the
State Department. See Beberman v. Pompeo, 1:16-cv-02361-TJK, ECF No. 65 (D.D.C.
December 11, 2018) (summarizing Beberman’s relevant litigation history through December
2018).
3
England, 454 F.3d 290, 297 (D.C. Cir. 2006); see Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2
(D.D.C. 2009). When, as here, the government is the opposing party, the third and fourth factors
merge. Nken v. Holder, 556 U.S. 418, 435 (2009).
Before the Supreme Court decided Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008), courts in this Circuit analyzed these factors on a sliding scale, so that a
plaintiff’s weak showing on one could be overcome by a strong showing on the others. Sherley
v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011). The D.C. Circuit “has suggested, without
deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a ‘more
demanding burden’ requiring plaintiffs to independently demonstrate both a likelihood of
success on the merits and irreparable harm.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (quoting Sherley, 644 F.3d at 392). But the Court
need not determine the continued validity of the sliding-scale approach here. The “basis of
injunctive relief in the federal courts has always been irreparable harm.” Chaplaincy, 454 F.3d
at 297 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir.
1995); Sampson v. Murray, 415 U.S. 61, 88 (1974)). Thus, “[a] movant’s failure to show any
irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other
three factors entering the calculus merit such relief.” Id.; see also CityFed Fin. Corp., 58 F.3d at
747; Nat’l Parks Conservation Ass’n v. Semonite, 282 F. Supp. 3d 284, 288 (D.D.C. 2017).
Analysis
A. Defendants’ Motion to Dismiss
Defendants argue that this action is effectively an appeal of the FSGB’s denial of interim
relief, a nonfinal agency action not subject to judicial review under the APA. See ECF No. 5 at
5–6. As a result, they assert, the Court lacks subject matter jurisdiction and must dismiss the
complaint. They are wrong for three reasons.
4
First, Beberman appears to proceed under the Due Process Clause of the Fifth
Amendment, as well as the APA. 3 See ECF No. 2 at 3. So despite Defendants’ arguments
directed at her APA claim, the Court would retain subject matter jurisdiction over her
constitutional claim, rendering dismissal of the entire complaint unwarranted.
Second, Defendants misunderstand the factual basis for Beberman’s APA claim. She
repeatedly disclaims any attempt to appeal the FSGB’s denials of interim relief. In fact, she
readily concedes that the FSGB’s decisions are nonfinal, and therefore unreviewable, because
she has moved for their reconsideration. 4 See, e.g., ECF No. 1 at 2–4; ECF No. 2 at 5; ECF No.
8 at 1–3. Rather, she asserts that, because the FSGB granted her temporary interim relief from
separation—which she asserts remains in effect—Defendants’ decision to separate her from the
Foreign Service is final agency action that violates 22 U.S.C. § 4136(8) (authorizing that relief).
See ECF No. 8 at 2. Defendants have not argued that Defendants’ decision to separate her is not
final agency action.
Third, and in any event, Defendants are wrong on the law. Final agency action is not a
jurisdictional requirement under the APA. In other words, even assuming Beberman’s APA
claim fails to challenge final agency action, that would not deprive the Court of subject matter
jurisdiction over it, although it would mean that she does not have a cause of action. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 183–85, 188–89 (D.C. Cir. 2006). The cases from this
Circuit cited by Defendants for the contrary proposition do not address subject matter
3
Because Beberman is a pro se plaintiff, the Court considers all her filings in deciding
Defendants’ motion to dismiss. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152
(D.C. Cir. 2015).
4
That these orders are not final, Beberman asserts, is precisely why the FSGB’s order granting
her temporary interim relief remains in effect. See ECF No. 2 at 11–14.
5
jurisdiction at all. Therefore, they provide no reason to doubt that in this Circuit “the finality
requirement . . . determine[s] whether there is a cause of action under the APA, not whether there
is federal subject matter jurisdiction.” Perry Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C.
Cir. 2017). For these reasons, the Court does, in fact, have jurisdiction over Beberman’s Due
Process and APA claims under 28 U.S.C. § 1331. See Trudeau, 456 F.3d at 185.
B. Beberman’s Motion for Preliminary Injunctive Relief
The D.C. Circuit has set a high bar for a showing of irreparable harm required to obtain
preliminary injunctive relief. Irreparable harm must be both certain and great, and it must be
beyond remediation. Chaplaincy, 454 F.3d at 297. “The possibility that adequate compensatory
or other corrective relief will be available at a later date, in the ordinary course of litigation
weighs heavily against a claim of irreparable harm.” Id. at 297–98 (quoting Va. Petroleum
Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Absent
extraordinary circumstances, recoverable economic losses will not constitute irreparable injury.
See Sampson, 415 U.S. at 90; Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1294–95
(D.C. Cir. 2009).
Relevant here, the loss of a job and attendant difficulties do not generally constitute
irreparable harm. See, e.g., Sampson, 415 U.S. at 88–92; Davis v. Billington, 76 F. Supp. 3d 59,
65–66 (D.D.C. 2014) (finding no irreparable harm to a discharged federal employee ineligible to
receive back pay); Veich v. Danzig, 135 F. Supp. 2d 32, 36 (D.D.C. 2001) (finding that loss of
salary and benefits and damage to professional reputation were “no more than are typical in
instances of the termination of any government employee” and insufficient to constitute
irreparable harm); Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 4–5 (D.D.C. 1998) (finding
no irreparable harm to a federal employee who argued that he would have trouble finding
employment because he had been trained in a highly specialized field).
6
Beberman does not differentiate her predicament from the many cases in which courts
have held that the termination of employment—while no doubt a serious disruption to the
employee—does not “so far depart from the normal situation that irreparable injury might be
found.” Sampson, 415 U.S. at 92 n.68. She acknowledges that she will be entitled to back pay if
she ultimately prevails on the merits of this suit. ECF No. 1 ¶ 54. Still, she argues that a
monetary award cannot remedy the disruption to her career if she is separated from the Foreign
Service because she will suffer the following non-economic harms: (1) her separation will reduce
the likelihood of her promotion in the future; (2) she will be unable to stay current with Foreign
Service developments, disadvantaging her in bidding for future Foreign Service positions;
(3) she has a limited time left in the Foreign Service—about seven and a half years—because the
mandatory retirement age is 65; and (4) she will not be able to find similar employment
elsewhere because working in the Foreign Service is a unique career. ECF No. 1 ¶¶ 52–69. But
none of these alleged harms meets the D.C. Circuit’s standard for irreparable harm.
Beberman’s first claim of non-economic injury is too speculative. She cannot show that,
even assuming she is reinstated, she would likely receive a promotion without the gap in her
service that will result from her separation. The Circuit rejected a similar claim of harm to future
promotion opportunities as too speculative in Chaplaincy of Full Gospel Churches v. England,
454 F.3d at 298. Preliminary relief is also unnecessary to redress this alleged harm; if she were
to prevail in this lawsuit, the Court could order that she be reinstated with service credit for the
time during which she was unlawfully separated. Her second claim of harm is insufficiently
great to justify preliminary relief. Indeed, many employees removed from their work
environments are unable to stay abreast of relevant professional developments to some degree.
Beberman’s situation presents nothing unusual along those lines. Cf. Nichols, 18 F. Supp. 2d at
7
5 (“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.”).
Similarly, Beberman’s third and fourth claims of non-economic harm, while no doubt
significant to her, are not the kind of certain, great, and irremediable harms that distinguish her
case from many others in which employees are separated from jobs from which they derive
professional satisfaction. Certainly, they are not harms of the sort the Circuit has found warrant
preliminary injunctive relief. And Beberman has advanced, and lost, similar arguments in at
least one other circuit. See Beberman v. United States Dep’t of State, 675 F. App’x 131, 134 (3d
Cir. 2017) (“Beberman is also not entitled to preliminary relief on the basis that being required to
leave her post unexpectedly would cause her to ‘lose forever the opportunity and satisfaction of
serving as a U.S. diplomat in Equatorial Guinea.’ While this may be an unfortunate consequence
of the tenure denial decision, it is not the type of ‘extreme deprivation’ that a preliminary
injunction is designed to remedy.” (internal citation omitted)).
Beberman also cites several cases, mostly from the Ninth Circuit, in which courts have
held that the loss of the ability to pursue a chosen profession amounts to irreparable harm. See
Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 976 (9th Cir. 2017); Enyart v. Nat’l
Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1156–66 (9th Cir. 2011); Bonnette v. District of
Columbia Court of Appeals, 796 F. Supp. 2d 164, 186–87 (D.D.C. 2011). But Plaintiffs in those
cases faced barriers to an entire profession, such as law, or obstacles that would make the pursuit
of any employment opportunity harder. Here, Beberman will only be separated from one type of
job—the Foreign Service—and nothing prevents her from seeking other positions working for
the government that also involve foreign affairs or diplomacy. Those cases do not suggest she
faces irreparable harm under the law of this Circuit.
8
Finally, throughout her motion Beberman relies on Miller v. Baker, 969 F.2d 1098 (D.C.
Cir. 1992), a case in which the Circuit addressed the scope of the FSGB’s power to order relief
from separation under 22 U.S.C. § 4136(8). She argues that it supports her claim that the loss of
a Foreign Service job is a harm which cannot be remedied by economic relief alone. See ECF
No. 2 at 6–9. But Miller does not stand for that proposition, nor does it help Beberman show
irreparable harm in any other way. In fact, the case does not address preliminary relief at all,
except by noting in passing that because the district court there had “refused to issue a temporary
restraining order,” the plaintiff was separated from the Foreign Service. Id. at 1099. So too here.
For all these reasons, Beberman has not shown that she will be irreparably harmed by her
separation from the Foreign Service. Accordingly, the Court must deny her motion for
preliminary injunctive relief. 5
5
Beberman also asserts that irreparable harm flows from her due process claim. ECF No. 2 at 6–
7. Although “a prospective violation of a constitutional right constitutes irreparable injury,”
Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013), this is so only when the violation “is
shown to be likely,” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314,
334 (D.C. Cir. 2018). In other words, if Beberman is unlikely to succeed on the merits of her
constitutional claim, she cannot show irreparable harm through the violation of a constitutional
right. See Brown v. Fed. Election Comm’n, 386 F. Supp. 3d 16, 33 (D.D.C. 2019). Here,
Beberman is unlikely to prevail on the merits of her due process claim because, even assuming
she has a constitutionally protected interest in her job, she has not shown that Defendants
decided to separate her without adequate process. See NB ex rel. Peacock v. District of
Columbia, 794 F.3d 31, 41 (D.C. Cir. 2015). To the contrary, Defendants afforded Beberman
extensive notice and opportunities to be heard. See Propert v. District of Columbia, 948 F.2d
1327, 1331–32 (D.C. Cir. 1991). She was initially scheduled to be separated in March 2016,
over three and a half years ago. ECF No. 1 at ¶¶ 39–40. She has since then been granted
temporary interim relief, presented her argument for interim relief in three cases, and received at
least five written FSGB decisions that resolved her requests for interim relief. See ECF No. 5-3;
ECF No. 5-4; ECF No. 5-5; ECF No. 8-1 at 2–21, 22–45. Further, upon receiving notice that she
would be separated on October 31, 2019, she took the opportunity to argue that her temporary
interim relief remained in effect because of her pending motions for reconsideration, but the
State Department, acknowledging those motions, disagreed. ECF No. 2-1 at 102–10. Because
she is unlikely to succeed on this constitutional claim, it cannot provide the basis for her alleged
irreparable harm.
9
Conclusion
For all the above reasons, Defendants’ Motion to Dismiss for Lack of Jurisdiction, ECF
No. 6, is DENIED and Plaintiff’s Motion for a Temporary Restraining Order and Preliminary
Injunction, ECF No. 2, is also DENIED. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: October 30, 2019
10