Daugomah v. Roberts et al
Filing
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ORDER denying 4 Motion for TRO. Signed by Honorable Timothy D. DeGiusti on 9/16/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN DAUGOMAH,
Plaintiff,
vs.
LARRY ROBERTS, Acting Assistant
Secretary, United States Bureau of
Indian Affairs, in his official capacity,
et al.,
Defendants.
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Case No. CIV-16-1045-D
ORDER
Before the Court is Plaintiff John Daugomah’s Motion for Temporary Restraining
Order, Preliminary Injunction, and Permanent Injunction [Doc. No. 4], filed pursuant to Fed.
R. Civ. P. 65.1 Defendants, the Bureau of Indian Affairs and various agency officials acting
in their official capacities, have responded [Doc. No. 14], and Plaintiff has replied [Doc. No.
18]. Having considered the Complaint [Doc. No. 1] filed in this matter and the motion
papers and related exhibits, the Court finds that a temporary restraining order (“TRO”) is
unwarranted, and the motion for a TRO is denied.
1
A Motion to Intervene [Doc. No. 16] was filed September 15, 2016, on behalf of Joe E. Poe,
Jr., Charles Eisenberger, and Mary Helen Deer, all enrolled members and registered voters of the
Kiowa Indian Tribe of Oklahoma (“Kiowa Tribe”). However, given the expedited nature of the
consideration of Plaintiff’s request for a temporary restraining order, the Court declines to address
the Motion to Intervene at this time.
Background
Plaintiff filed the present action on September 9, 2016, seeking (1) a TRO enjoining
Defendants from conducting a Special Tribal Election set for September 17, 2016, and (2)
preliminary and permanent injunctions prohibiting the calling for and conducting of any
further special elections.2 This Order will address solely Plaintiff’s request for a TRO.
Standard
The requirements for the issuance of a TRO are essentially the same as a preliminary
injunction. See Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003).
Because a preliminary injunction is considered “an extraordinary and drastic remedy”
(Warner v. Gross, 776 F.3d 721, 728 (10th Cir. 2015) (citing Munaf v. Geren, 553 U.S. 674,
689 (2008)), a movant’s right to relief must be clear and unequivocal.
Petrella v.
Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015); see also Port City Props. v. Union Pacific
R. Co., 518 F.3d 1186, 1190 (10th Cir. 2008). Injunctive relief is an equitable remedy that
invokes the sound discretion of the district court, (Lundgrin v. Claytor, 619 F.2d 61, 63 (10th
Cir. 1980)), and “[t]he essence of equity jurisdiction is the power of the court to fashion a
remedy depending upon the necessities of the particular case.” Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1022 (9th Cir. 2009) (citations omitted); see also Pymatuning Water Shed
Citizens for a Hygienic Env’t v. Eaton, 506 F.Supp. 902, 908 (W.D. Pa. 1980) (“Like any
2
It is undisputed that the Kiowa Tribe has experienced uncertainty for several years in regard
to its elected officials. See Letter [Doc. No. 1-2] for a brief history of the Kiowa Tribe’s political
situation.
2
court of equity, the district court has very broad power to fashion a remedy appropriate to
deal with the factual situation before the court.”) (citation omitted).
The court of appeals has summarized the governing standard for the issuance of a
TRO as follows:
Ordinarily, a movant seeking a preliminary injunction
must establish (1) a substantial likelihood of success on the
merits;3 (2) irreparable injury to the movant if the injunction is
denied; (3) the threatened injury to the movant outweighs the
injury to the party opposing the preliminary injunction; and (4)
the injunction would not be adverse to the public interest.
Because a preliminary injunction is an extraordinary remedy, the
movant’s right to relief must be clear and unequivocal.
For certain preliminary injunctions, the movant has a
heightened burden of showing that the traditional four factors
weigh heavily and compellingly in its favor before obtaining a
preliminary injunction. The heightened burden applies to
preliminary injunctions that (1) disturb the status quo, (2) are
mandatory rather than prohibitory, or (3) provide the movant
substantially all the relief it could feasibly attain after a full trial
on the merits. This court disfavors such injunctions.
Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1154-55 (10th Cir.
2001) (citations omitted); see also Schrier v. Univ. of Co., 427 F.3d 1253, 1259 (10th Cir.
2005) (specifying that the modified standard does not apply to the three “specifically
3
Many Tenth Circuit cases do not include the word “substantial” in listing this factor;
however, recent decisions phrase this factor as a “substantial” likelihood of success on the merits.
See, e.g., Flood v. ClearOne Commc’ns., Inc., 618 F.3d 1110, 1117 (10th Cir. 2010); Chamber of
Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010); Att’y Gen. of Okla. v. Tyson Foods, Inc.,
565 F.3d 769, 788 (10th Cir. 2009); Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir.
2009). Other Tenth Circuit cases, however, focus on whether a plaintiff can show a “reasonable
probability” that it will succeed. See, e.g., Salt Lake Tribune Pub. Co., LLC v. AT&T Corp., 320
F.3d 1081, 1100 (10th Cir. 2003).
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disfavored preliminary injunctions”). Plaintiff’s Motion is subject to the heightened burden
because in it Plaintiff seeks to obtain substantially all relief available at the conclusion of this
action – preventing the completion of the current election.
Of all the factors considered for the issuance of injunctive relief, proof of irreparable
harm is generally considered the most important in determining whether a preliminary
injunction should be issued. See Port City Props., 518 F.3d at 1189 (observing that “courts
have consistently noted” that “a showing of probable irreparable harm is the single most
important prerequisite for the issuance of a preliminary injunction”). Therefore, “the moving
party must first demonstrate that such injury is likely before the other requirements for the
issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar
Satellite Corp., 356 F.3d 1256 (10th Cir. 2004). “[P]urely speculative harm does not amount
to irreparable injury.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir.
2003). Rather, the movant must identify an injury that is “certain, great, actual and not
theoretical.” See Heideman, 348 F. 3d at 1189; accord Prairie Band of Potawatomi Indians
v. Pierce, 253 F.3d 1234, 1250 (10th Cir.2001). The movant must also demonstrate that its
injury cannot be satisfied by a remedy after trial of an award of monetary damages, (see
RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009) (citing Greater Yellowstone
Coal., 321 F.3d at 1258)), and that the harm alleged is “of such imminence that there is a clear
and present need for equitable relief to prevent irreparable harm.” Schrier, 427 F.3d at 1267
(quoting Heideman, 348 F.3d at 1189).
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Discussion
Pursuant to Fed. R. Civ. P. 78(b), and consistent with Plaintiff’s contention that this
case “presents a straightforward question of law” and that “facts are not in dispute” (Mot.
[Doc. No. 4] at 5), the Court declines to hold an oral hearing on Plaintiff’s Motion. See
Carbajal v. Warner, 561 Fed. App’x. 759 (10th Cir. 2014) (unpublished) (Absent any
authority cited by Plaintiff requiring “a district court to hold an evidentiary hearing prior to
granting or denying a preliminary injunction motion . . . . we do not instruct the district court
to hold an evidentiary hearing prior to disposition of [Plaintiff’s] motion, although the district
court is free to do so within its own discretion.”); see also Bors v. Allen, 607 F. Supp. 2d 204,
207 (D.D.C. 2009) (Plaintiff’s application for a preliminary injunction could be denied
“without first providing a hearing on the merits when the record demonstrate[d] a lack of
right to relief.”) (citations omitted). In this case, as set forth infra, the submitted papers
readily demonstrate that Plaintiff is not entitled to a TRO.
Without addressing in detail the other requirements for the issuance of an injunction,
the Court finds that Plaintiff has failed to show a probability of irreparable harm. Plaintiff
asserts in conclusory fashion that the election “will likely have long-standing, generational
consequences,” and that the procedural rules used for the election have “caused great
disruption in the Tribe,” without providing any significant evidentiary or factual support for
such speculative assertions. And Plaintiff’s assertion that “[t]he new Business Committee
will have the power to make immediate decisions directly impacting the members of the
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Tribe and Plaintiff Daugomah, such as the expenditure of the Tribe’s funds and the operation
of the Tribe’s casino enterprise,” while presumably true, does not equate to a showing of
irreparable harm to Plaintiff. See Motion, p. 17, § VII A., Irreparable Harm [Doc. No. 4].
Further, Plaintiff’s choice to file this action on the eve of completion of the election,4 when
Plaintiff has been aware of the pending election process for at least several months, militates
against the notion that emergency relief based on expedited proceedings to prevent imminent
and irreparable harm is called for here. Indeed, the procedure established for the election
also includes a period in which the election results may be challenged, which period does not
begin to run until the election is completed on September 17, 2016. Moreover, the election
Plaintiff seeks to enjoin has been formally underway and in progress since mid-July 2016.
Plaintiff simply seeks at this point to stop the tallying of votes, announcement of results, and
running of the contesting period. The effect of granting temporary injunctive relief here
would be to undo a months-long process at the eleventh hour upon an insufficient showing
of irreparable harm. Thus, the Court will not grant such relief.
Even if the Court were to consider the other elements required for injunctive relief,
in light of Article IV, §3 of the Kiowa Tribe Constitution,5 it appears that Plaintiff’s ability
4
All that remains in the voting portion of this election process is for the last ballots to be
received and counted, and for the results of the election to be certified. See Defs.’ Resp. [Doc. No.
14] at 2.
5
Article IV, § 3 purports to empower federal agencies, in the permanent absence of a quorum
and by authorization of the Commissioner of Indian Affairs, to “call and supervise an election to
bring the [Kiowa Business Committee] up to its full complement and prescribe the rules or
procedure.” Constitution [Doc. No. 14-1] at 5.
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to show a substantial likelihood of prevailing on the merits is in doubt. Further, Plaintiff’s
Motion fails to show how the issuance of the TRO is not adverse to the public’s interest. To
the contrary, dozens of tribal members have participated as candidates for office, nearly two
thousand members have registered to vote, and many ballots have already been received. It
seems completely consistent with the public interest for such a process to continue to
completion, and for any challenges to be considered in a more thorough and deliberate
manner than that afforded by emergency, expedited consideration via TRO proceedings.
Conclusion
For these reasons, the Court finds that Plaintiff has failed to meet his heightened
burden of showing that the traditional four factors for preliminary injunctive relief weigh
heavily and compellingly in his favor, and in particular, has failed to make more than a
speculative and conclusory showing of irreparable harm. Therefore, the Court hereby
DENIES Plaintiff’s Motion for Temporary Restraining Order [Doc. No. 4].
IT IS SO ORDERED this 16th day of September, 2016.
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