Brown v. District of Columbia , 888 F. Supp. 2d 28 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHANIE Y. BROWN, )
)
Plaintiff, )
)
v. ) Civil Case No. 12-799 (RJL)
)
DISTRICT OF COLUMBIA et al., )
)
Defendants. )
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MEMORANDUM OPINION
(August z:l,
2012) [#2]
Plaintiff Stephanie Yvonne Brown ("plaintiff' or "Brown") seeks a preliminary
injunction 1 against the University of the District of Columbia David A. Clarke School of
Law ("DCSL"), as well as the University ofthe District of Columbia's ("UDC") Board of
Trustees and President Allen L. Sessoms ("President Sessoms") (collectively,
"defendants"), enjoining defendants from terminating her employment and from
precluding the Board of Trustees' consideration of plaintiffs application for tenure and
promotion. After consideration of both parties' pleadings and their oral arguments
before the Court, plaintiffs motion for a preliminary injunction is DENIED.
1 Plaintiff originally sought a Temporary Restraining Order ("TRO"), and this Court held
a hearing on the TRO request on May 22, 2012, at which point plaintiffs counsel stated
that plaintiff was no longer seeking a TRO, but a Preliminary Injunction. See Civ. Case
No. 12-799, Minute Entry, May 22,2012.
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BACKGROUND
Over the past twenty-five years, plaintiff has held a variety of administrative and
academic positions at UDC, the most recent of which was an associate professorship of
law at DCSL. Am. Compl. ~ 1, ECF No.6. On January 5, 2009, plaintiff applied for
tenure and promotion to a full professorship position at the law school. !d. ~ 14.
DCSL's Faculty Evaluation and Retention Committee ("FERC") met on May 14,
2009 to discuss plaintiffs application. !d. Voting in favor of recommending tenure,
FERC subsequently forwarded its approval to Katherine S. Broderick, Dean ofDCSL, a
few days later. !d. Dean Broderick was reluctant, at first, to endorse PERC's tenure
recommendation due to plaintiffs lack of scholarship, and even suggested that FERC
withdraw plaintiffs tenure application from consideration. !d.~~ 17, 20. When FERC
updated the application to include a newly-announced publication of one of plaintiffs
articles, however, Dean Broderick changed her mind, endorsed PERC's tenure
commendation, and transmitted it to then Interim Provost and Vice President for
Academic Affairs Graeme Baxter ("Provost Baxter") on December 8, 2009. !d.~~
22-24.
Eighteen months later, on June 6, 2011, Provost Baxter informed plaintiff, in
writing, that her tenure application had been rejected, and that the 2011-2012 academic
year would be her last as a member ofDCSL's law faculty. !d.~ 27; Def. Sessom's
Opp'n to Pl.'s Mot. for TRO and Mot. for Prelim. Injunct. ("Def.'s Opp'n"), Ex. 12, ECF
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No.4. Although Provost Baxter later informed plaintiff, in writing, that she had referred
the tenure matter to UDC President Allen Sessoms for his review, President Sessoms
agreed with Provost Baxter's decision to deny plaintiff tenure. Am. Compl. ~~ 29, 30.
Accordingly, in October 2011, President Sessoms ratified Provost Baxter's denial of
tenure, refused to forward plaintiff's application to the Board of Trustees for its
consideration, and notified plaintiff, in writing, of his decision. !d.; Pl.'s Mot. for
Prelim. Injunct. ("Pl.'s PI Mot."), Ex. 6, ECF Nos. 1-3, 2; Def.'s Opp'n, Exs. 13, 14.
On May 2, 2012, plaintiff received a letter from Provost and Vice President for
Academic Affairs Ken Bain, informing her that, consistent with Provost Baxter's June
2011 letter, plaintiff's employment at DCSL would officially conclude at the end of the
2011-2012 academic year, specifically on May 15, 2012. !d.~ 55; Pl.'s PI Mot., Ex. 7.
Seven days later, on May 9, 2012, plaintiff brought an action against defendants in the
D.C. Superior Court, requesting, among other things, a TRO or preliminary injunction to
thwart her dismissal, as well as to enable the Board of Trustees to consider her tenure and
promotion application. See Notice ofRemoval ("Removal Not."), ECF No. 1; Pl.'s Mot.
for TRO ("Pl.'s TRO Mot."), ECF Nos. 1-2, 2; Pl.'s PI Mot. 2 On May 17, 2012,
defendants removed the action to this federal court, see Removal Not. at 1, and on May
2 In addition to injunctive relief, plaintiff, in her suit, also requests compensatory and
economic damages, as well as attorneys' fees and costs, for defendants' alleged breach of
contract, breach of the covenant of good faith and fair dealing, wrongful termination, race
and gender discrimination, violation of 42 U.S.C. § 1981, negligent supervision, and
negligent infliction of emotional distress. See Am. Compl. ~~ 59-96.
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21, 2012, by agreement of the parties, defendant District of Columbia was voluntarily
dismissed from the case, see Stip. of Dismissal, ECF No.3, with prejudice.
At plaintiffs request, this Court converted plaintiffs motion for a TRO or
preliminary injunction into one seeking only a preliminary injunction, and set a date to
hear its oral argument for a preliminary injunction. See Civ. Case No. 12-799, Minute
Entry, May 22, 2012. The parties briefed the motion and this Court heard argument from
both sides on June 12, 2012. See Civ. Case No. 12-799, Minute Entry, June 12, 2012.
Because the plaintiffhas failed to establish the requisite likelihood of irreparable harm to
warrant a preliminary injunction, however, her motion must be DENIED.
DISCUSSION
1. Legal Standard
A preliminary injunction is an "extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res.
Def Council, Inc., 555 U.S. 7, 22 (2008). The movant, of course, carries the burden of
persuasion. Cabell v. Norton, 391 F.3d 251,258 (D.C. Cir. 2004). In deciding whether
to grant a preliminary injunction, a court must weigh: ( 1) whether "the plaintiff has a
substantial likelihood of success on the merits"; (2) whether "the plaintiff would suffer
irreparable injury were an injunction not granted"; (3) whether "an injunction would
substantially injure other interested parties"; and (4) whether "the grant of an injunction
would further the public interest." Ark. Dairy Co-op Ass·~, Inc. v. US. Dep 't ofAgric.,
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573 F.3d 815, 821 (D.C. Cir. 2009).
Although "these factors interrelate on a sliding scale ... the movant must, at a
minimum, demonstrate that irreparable injury is likely in the absence of an injunction."
Bill Barrett Corp. v. US. Dep 't ofInterior, 601 F. Supp. 2d 331, 334-35 (D.D.C. 2009)
(internal quotation marks and citations omitted) (emphasis in original). A mere
possibility of irreparable harm is not enough, see Winter, 555 U.S. at 22, and a court may
deny a motion for preliminary relief without considering any other factors when
irreparable harm is not established. See Chaplaincy ofFull Gospel Churches v. England,
454 F.3d 290, 297 (D.C. Cir. 2006) ("[a] movant's failure to show any irreparable harm is
therefore grounds for refusing to issue a preliminary injunction, even if the other three
factors entering the calculus merit such relief'); see also CityFed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) ("[b]ecause CityFed has made no
showing of irreparable injury here, that alone is sufficient for us to conclude that the
district court did not abuse its discretion by rejecting CityFed's request [for a preliminary
injunction]"); Cornish v. Dudas, 540 F. Supp. 2d 61, 64 (D.D.C. 2008)("[w]here a party
has made no showing of irreparable injury, injunctive relief may be unavailable regardless
of the showings on the other factors").
2. Irreparable Harm
Plaintiff contends that, if the Court does not grant the injunction she seeks, she will
suffer irreparable harm, including significant harm to her professional reputation, an
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effective end to her law teaching career, a difficult transition period due to her age and
health, and a loss of income. See Pl.'s TRO Mot. at 12-14; Pl.'s PI Mot., Ex. 9.
Defendants counter that plaintiffs speculative and conclusory allegations of irreparable
harm not only lack factual support, but are economic in nature and thus insufficient to
merit injunctive relief. See Def.'s Opp'n at 15-19.
In our circuit, the standard for establishing irreparable harm sufficient to warrant a
preliminary injunction is quite high. Chaplaincy, 454 F.3d at 297. For instance, not
only must the impending harm "be both certain and great," but it "must [also] be actual
and not theoretical." !d. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985) (per curiam)). The plaintiff, in this case, thus must show that her injury is of such
"imminence" that there is a "clear and present" need for equitable relief to prevent
irreparable harm. !d. (citations omitted); see also Connecticut v. Massachusetts, 282
U.S. 660, 674 (1931) (injunctive relief"will not be granted against something merely
feared as liable to occur at some indefinite time in the future").
In addition, it is well-settled that "recoverable economic losses are not considered
irreparable." Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C. Cir. 1995); see
also Wis. Gas Co., 758 F.2d at 674 ("economic loss does not, in and of itself, constitute
irreparable harm"). Indeed, our circuit has explicitly stated that "(m]ere injuries,
however substantial, in terms of money, time and energy necessarily expended in the
absence of a stay are not enough," and that the availability of sufficient compensation or
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other remedial relief in the normal course of litigation "weighs heavily against a claim of
irreparable harm." Wis. Gas Co., 758 F.2d at 674 (quoting Virginia Petroleum Jobbers
Ass 'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)).
Last, ingrained in each of these principles is the added requirement that "the
movant substantiate the claim that irreparable injury is likely to occur." !d. (internal
quotation marks and citation omitted). Because the court is charged with deciding
"whether the harm will in fact occur" when contemplating injunctive relief, "[b]are
allegations of what is likely to occur are of no value." !d. (emphasis in original); see also
Int'l Internships Programs v: Napolitano, 798 F. Supp. 2d 92, 100 (D.D.C. 2011)
(plaintiff failed to support its claim of economic injury by not offering a single piece of
evidence, "not a bill, financial statement, past budget, current budget, or financial
projection," to support its alleged harm). Rather, the movant, "must provide proof that
the harm has occurred in the past and is likely to occur again, or proof indicating that the
harm is certain to occur in the near future." Wis. Gas Co., 758 F.2d at 674.
Here, plaintiff has utterly failed to meet her burden to show that she will suffer
immediate and irreparable harm if the injunctive relief she requests is denied. First,
plaintiff fails to demonstrate that her injury is "certain to occur in the near future," and
that this harm could not be prevented absent injunctive relief. See Int'l Internships
Programs, 798 F. Supp. 2d at 100 (citation omitted). In June 2011, plaintiffwas
informed, in writing, that Provost Baxter had denied her tenure application, and thus her
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employment at DCSL would culminate at the end of the 2011-2012 academic year. Am.
Compl. ~ 27; Def.'s Opp'n, Ex. 12. Yet plaintiff waited eleven months, until May 2012,
to file for injunctive relief (rendering this a true eleventh hour request). Even assuming,
arguendo, that plaintiff did not consider Provost Baxter's June 2011 decision to be
definitive, and waited for a final decision from President Sessoms on her tenure
application before contemplating her next steps, plaintiff still waited almost seven
months, from October 2011 to May 2012, to file this lawsuit against the defendants, along
with the instant motion seeking to enjoin defendants from terminating her employment.
See Am. Compl. ~~ 29, 30; Pl.'s PI Mot., Ex. 6; Def.'s Opp'n, Exs. 13, 14.
Unfortunately for the plaintiff, this delayed timeline establishes that she had plenty
of notice that her DCSL employment would end, an alleged harm that she now asks this
Court to halt via the extraordinary remedy of a preliminary injunction. Indeed, plaintiff
allowed a full six months to pass without any attempt to challenge the tenure denial or to
take advantage of legal remedies to reinstate her professorship, a fact that directly
undercuts any argument that her injury is of such imminence that there is a "clear and
present need for equitable relief to prevent irreparable harm." See Fed. Maritime
Comm 'n v. City ofLos Angeles, 607 F. Supp. 2d 192, 202 (D.D.C. 2009).
Moreover, plaintiff fails to offer a single piece of evidence to substantiate her
claim that irreparable injury is likely to occur beyond hypothetical, conclusory allegations
with no factual support. For instance, instead of introducing evidence into the record
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that would allow this Court to determine whether plaintiff faces irreparable harm to her
professional reputation or teaching career if an injunction is not issued, plaintiff offers
speculative, unsubstantiated contentions such as that defendants' denial of tenure "has
and will continue to tarnish [her] professional reputation," that "most other law schools
would view denial of tenure as a negative statement regarding [her] qualifications" and
that "[her] age and ongoing health concerns further increase the difficulty of transitioning
to a new academic environment .... " 3 Plaintiff does not offer any evidence, however,
that demonstrates, for example, that other law schools have refused or would refuse to
hire her due to defendants' denial of tenure, or that describes what health issues plaintiff
suffers from and how they have or will impede plaintiffs ability to transition to a
different educational setting if terminated. As such, plaintiff does not demonstrate the
likelihood of irreparable injury. 4
3 See Pl.'s PI Mot., Ex. 9; see also Pl.'s TRO Mot. at 12 ("[d]efendants' actions, which
interrupt a longstanding career of public service to the law school, will interrupt if not end
[p]laintiffs law teaching career and significantly harm her professional reputation"); Pl.'s
Reply to Def.'s Opp'n to Pl.'s Mot. for TRO and Mot. for Prelim. Injunct. ("Pl.'s Reply")
at 4, ECF No. 5 ("[p]laintiff is an older law professor with 25 years of service, not healthy
and suffers loss of a career"); id. ("[p ]laintiff is older and not in the best of health .... [i]t
is unlikely in this eccmomic climate that [plaintiff] ... could ever find work approaching
what she now does, if she could find work at all") (internal quotation marks and citation
omitted); id. ("the record demonstrates that [p]laintiffwould experience great difficulty
finding similar work").
4 See Winter, 555 U.S. at 21-22 (rejecting a standard that would require a plaintiff to
demonstrate only a "possibility" of irreparable injury); see also Int 'l Internships
Programs, 798 F. Supp. 2d at 100 ("plaintiffs bald assertions ... simply do not suffice to
prove irreparable injury"); Miniter v. Moon, 684 F. Supp. 2d 13, 16 (D.D.C. 2010)
(denying injunctive relief where plaintiff failed to provide the court with any supporting
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Because plaintiff fails to present any evidence that, absent injunctive relief, her
professional reputation or ability to obtain future employment will be irreparably harmed
beyond notional assertions that they will, the only other contentions of irreparable harm
made by the plaintiff"are merely financial, and thus, not irreparable." Fanning v. High
Mountain Inspection Servs., Inc., 520 F. Supp. 2d 55, 59 (D.D.C. 2007). Specifically,
plaintiff argues that she will suffer a loss of income if her employment at DCSL is
terminated. See Pl.'s PI Mot. at 12-14; Pl.'s TRO Mot., Ex. 9. But in the absence of
special circumstances, which plaintiff does not assert, "temporary loss of income,
ultimately to be recovered, does not usually constitute irreparable injury." Sampson v.
Murray, 415 U.S. 61, 90 (1974). Indeed, should plaintiff ultimately prevail, her
economic losses can be remedied with money damages. See Davenport v. Int'l Bhd. of
Teamsters, AFL-CIO, 166 F.3d 356, 367 (D.C. Cir. 1999); Wis. Gas Co., 758 F.2d at 674;
Gray v. Dist. of Columbia, 477 F. Supp. 2d 70, 75 (D.D.C. 2007). Accordingly, because
plaintiffs injuries are economic in nature, they do not constitute the sort of irreparable
harm that justifies preliminary injunctive relief. See, e.g., Davis v. PBGC, 571 F.3d
1288, 1295 (D.C. Cir. 2009); Smoking Everywhere, Inc. v. US. FDA, 680 F. Supp. 2d 62,
76 (D.D.C. 201 0); TD Int 'I, LLC v. Fleischmann, 639 F. Supp. 2d 46, 48-49 (D.D.C.
2009). Plaintiffs preliminary injunction thus must be denied on this basis as well.
evidence to substantiate his claims of irreparable harm); Deen-Mitchell v. Lappin, No.
09-2069, 2010 WL 3831388, at* 1 (D.D.C. Sept. 27, 2010) (holding that, because
plaintiff"supports the motion with nothing more than speculation and hyperbole,"
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In sum, the burden of persuasion lies directly on the plaintiffs shoulders, and she
has failed to carry that burden. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Having failed to demonstrate the necessary irreparable harm, the court need not reach the
other factors needed to warrant injunctive relief. CityFed Fin. Corp., 58 F.3d at 747.
CONCLUSION
Thus, for all of the above reasons, the Court DENIES plaintiffs Motion for
Preliminary Injunction. An appropriate Order will issue with this Memorandum
Opinion.
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United States District Judge
plaintiff had not shown his entitlement to a preliminary injunction).
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