Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beberman v. U.S. Department of State

United States District Court, District of Columbia

October 30, 2019

JULIE BEBERMAN, Plaintiff,
v.
U.S. DEPARTMENT OF STATE et al., Defendants.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

         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.

         I. 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 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.

         II. 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. 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 plaintiffs 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).

         III. 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.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.