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 ...