DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION
Re Document No. 17
RUDOLPH CONTRERAS, District Judge.
Plaintiffs are currently engaged in litigation to compel various federal entities to recognize them as an American Indian tribe. Plaintiffs now seek a temporary restraining order, followed by a preliminary injunction, barring an election to amend the constitution of a different tribe, because Plaintiffs assert the amendments would impair their rights. Because Plaintiffs fail to demonstrate an irreparable injury, neither a temporary restraining order nor a preliminary injunction is appropriate.
Plaintiffs are several individuals and the Mdewakanton Sioux Indians of Minnesota, which they allege is an American Indian tribe to which they belong. Compl. at 2, ECF No. 1. Plaintiffs brought suit in this Court to compel the United States defendants "to acknowledge [the tribe's] existence and to enjoin the United States from continuing arbitrary decisions without informing the [tribe] that have the consequence of adversely affecting the rights or potential rights of the [tribe]." Compl. at 2. Defendants moved to dismiss the complaint on several grounds, see generally Fed. Defs.' Mot. Dismiss, ECF No. 10, and that motion remains pending.
Plaintiffs now seek a temporary restraining order, followed by a preliminary injunction, to stop the June 14, 2017 Secretarial election of the Prairie Island Indian Community.
III. LEGAL STANDARD
"Preliminary injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction, provides an `extraordinary remedy' that is `never awarded as of right.'" Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 901 F.Supp.2d 54, 55-56 (D.D.C. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). Because a temporary restraining order is "an extraordinary and drastic remedy," it should not be granted "unless the movant, by a clear showing, carries the burden of persuasion." Nat'l Head Start Ass'n v. Dep't of Health & Human Servs., 297 F.Supp.2d 242, 246 (D.D.C. 2004) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
In order to receive preliminary injunctive relief, the movant must demonstrate "(1) that it has a strong likelihood of success on the merits, (2) that it will suffer irreparable injury if injunctive relief is denied, (3) that other interested parties will not suffer substantial harm if injunctive relief is granted, and (4) that the public interest favors the granting of injunctive relief, (or at least, that the granting of injunctive relief is not adverse to the public interest)." Paleteria La Michoacana, 901 F. Supp. 2d at 56 (citing Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) and Federation Internationale de Football Ass'n v. Nike, Inc., 285 F.Supp.2d 64, 68 (D.D.C. 2003)).
Regardless of how the other three factors are analyzed,
The Court considers if Plaintiffs have demonstrated that they will suffer an irreparable harm absent the issuance of a temporary restraining order or preliminary injunction, and concludes that they have not. Because showing an irreparable injury is mandatory, the Court does not consider the remaining factors.
Plaintiffs' motion devotes only a single paragraph to discussing the irreparable injury requirement. Pl.'s Mot. at 43-44. Plaintiffs argue that preliminary injunctive relief is necessary to avoid increased litigation expenses, specifically, that:
Pl.'s Mot. at 43-44.
However, it is well established that litigation expenses are not an irreparable injury. The D.C. Circuit "has set a high standard for irreparable injury." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). In general, "economic loss does not, in and of itself, constitute irreparable harm." Nat'l Mining Ass'n v. Jackson, 768 F.Supp.2d 34, 50 (D.D.C. 2011) (citing Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). This is because an irreparable injury is one which is "beyond remediation"—and for economic harms "`[t]he 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.'" Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98 (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)).
The rule against economic losses constituting irreparable harm applies with full force to litigation expenses. Litigation costs cannot constitute an irreparable injury for the purposes of granting a preliminary injunction. See Live365, Inc. v. Copyright Royalty Bd., 698 F.Supp.2d 25, 45 (D.D.C. 2010) (noting that "[t]he Supreme Court has held that `[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury,'" even when those costs "are likely to be substantial" (quoting FTC v. Standard Oil Co., 449 U.S. 232, 244 (1980))).
The irreparable harm alleged by Plaintiffs is precisely the type of litigation costs previously rejected by the Supreme Court, and Plaintiffs offer no legal authority to the contrary. As to Plaintiffs' suggestion that they may not be able to "cross the litigation finish line," Plaintiffs cite no cases suggesting that this outcome would constitute an irreparable harm. Even if such a harm could suffice, Plaintiffs have not stated the applicable facts here with any specificity. Plaintiffs provide nothing more than a conclusory statement: they do not describe their expected expenses, expected costs, or the possible effects of denying preliminary injunctive relief on either. Indeed, the Court notes that briefing of Defendants' dispositive motion is already complete,
In their reply, Plaintiffs expand their discussion of irreparable injury from one paragraph to two. See Pl.'s Reply Mem. Supp. Mot. (Pl's Reply) at 9-10, ECF No. 19. However, Plaintiffs still do not elaborate on the irreparable injury posed by litigation costs, except to state conclusorily that "Plaintiffs are not in a position of funding years of litigation." Pl.'s Reply at 9. Plaintiffs' claims that they may run out of money remain speculative and unclear. As discussed above, this does not suffice to overcome the general rule that litigation expenses are not an irreparable injury. Plaintiffs also briefly attempt to introduce a new irreparable injury. See Pl.'s Reply at 9. However, because this argument is new in Plaintiffs' reply, the Court will not consider it.
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As discussed above, Plaintiffs' motion for a temporary restraining order or preliminary injunction fails because Plaintiffs do not demonstrate an irreparable injury. This conclusion is further bolstered by the disfavored nature of injunctive relief barring an election when only one outcome of the election would allegedly impair the movants rights. Because the proposed measures may yet be voted down and the controversy avoided, many courts have declined to enjoin elections in analogous circumstances. See, e.g., Ranjel v. City of Lansing, 417 F.2d 321, 325 (6th Cir. 1969) (reversing a preliminary injunction against a referendum on a proposition that allegedly violated the Fourteenth Amendment because "[w]e believe the better practice [i]s. . . [to] allow the election to proceed and rule on the validity of the measure after its passage"), cert. denied, 397 U.S. 980 (1970); Nevada Rest. Ass'n v. Pest Comm., No. 3:08-CV-00118, 2008 WL 8225546, at *4 (D. Nev. July 15, 2008) ("Insofar as the few federal courts that have entertained such challenges [to ballot measures pre-election] are concerned, those courts have only done so where the proposed measures were plainly unconstitutional."); Ajax Gaming Ventures, LLC v. Brown, No. CVIA 06-336, 2006 WL 2302192, at *2-3 (D.R.I. Aug. 8, 2006) ("[T]he Court is not prepared to say without doubt that the proposed amendment is `patently' unconstitutional, nor is this case of such an `exceptional' nature as to warrant intervention before the election has yet come to pass . . . . This Court may never be called upon to rule on the constitutionality of the proposed amendment: the electorate may vote it down in November. Courts should not wade into constitutionally torrid waters unless doing so is unavoidable. That is not the case here." (citations omitted)); Diaz v. Bd. of Cty. Comm'rs of Dade Cty., 502 F.Supp. 190, 193 (S.D. Fla. 1980) ("In this action, the plaintiffs claim they will be damaged by the results of the referendum; they will not be damaged by the act of voting itself. This Court has decided that the act of voting must be allowed. A determination of the constitutionality of the results must wait until that now-hypothetical time when there may be actual results."). The rare exceptions to this rule occur mainly when the proposed measure is patently unconstitutional. See, e.g., Otey v. Common Council of City of Milwaukee, 281 F.Supp. 264, 276 (E.D. Wis. 1968) (blocking the submission of a "palpably unconstitutional" resolution to a referendum).
In this case, Plaintiffs have not argued, and this Court does not conclude, that the proposed amendments are patently unconstitutional. As in other election cases, this Court is not yet squarely faced with the controversy concerning the amendments because the proposed amendments may be voted down. Furthermore, even if approved by the voters, the proposed amendments face additional hurdles before they could take effect. The Secretary must either approve or disapprove the amendments. 25 U.S.C. § 5123(d)(1). If the Secretary approves the amendments, that approval would constitute a final agency action, 25 C.F.R. § 81.45(f), presumably subject to APA challenge by Plaintiffs. These reasons bolster this Court's conclusion that preliminary relief to prevent the election is inappropriate.
For the foregoing reasons, Plaintiffs' Motion for Temporary Restraining Order and a Preliminary Injunction (ECF No. 17) is
Plaintiffs argue that "[n]one of the post-election procedures will restore to the [Plaintiffs] the pre-election right to request or object to the June 14, 2017 Secretarial election." Pl.'s Reply at 9. The suggestion that Plaintiffs may lose some ability to object to the election is new in their reply. See, e.g., Pl.'s Mot. at 44, ECF No. 17 (summarizing the dispute over the Secretarial election as: "[Plaintiffs] contend the June 14, 2017 proposed Constitution is contrary to federal law"). However, Plaintiffs do not discuss what pre-election objections they wish to bring or explain why these alleged injuries would be great. Furthermore, Plaintiffs fail to explain why the loss of any pre-election objection would be an irreparable injury, given the admitted availability of post-election procedures.
Plaintiffs also suggest that they will be injured by the proposed amendments to the Prairie Island Indian Community's constitution, if enacted. Pl.'s Reply at 9. This alleged injury, however, is neither certain nor actual. The outcome of the Secretarial election is undecided. Even if the amendments prevail in the vote, the Secretary must still approve or disapprove the amendments, 25 U.S.C. § 5123(d)(1), and that approval would constitute a final agency action that Plaintiffs could challenge, 25 C.F.R. § 81.45(f). Cf. United Farm Workers v. Chao, 593 F.Supp.2d 166, 170 (D.D.C. 2009) (rejecting a motion for a temporary restraining order because plaintiffs were unable to show that they would certainly be injured by new regulations).