Hunter v. Hirsig ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
June 23, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHASE CARMEN HUNTER,
Plaintiff - Appellant,
v.
No. 14-8053
TOM HIRSIG, individually and in his
(D.C. No. 2:14-CV-00089-NDF)
official capacities as Commissioner of
(D. Wyo.)
Insurance for Wyoming and as
Director, Executive Board of the
National Association of Insurance
Commissioners,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
*
After examining the briefs and appellate record, this panel has
decided unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Chase Carmen Hunter appears pro se 1 and in forma pauperis (“IFP”) 2 to
challenge the district court’s denial of her motion for injunctive relief. Exercising
jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm the district court.
I
Ms. Hunter is a resident of Virginia and a licensed insurance agent in
several states, including Wyoming. In May 2014, after the Wyoming Department
of Insurance (“WDOI”) commenced an action to revoke her Wyoming insurance
license, Ms. Hunter filed a lawsuit in the United States District Court for the
District of Wyoming. She sought to impose liability on Tom Hirsig, both
individually and in his official capacity as the WDOI Commissioner, 3 bringing
eighteen claims wherein she accused Mr. Hirsig of various crimes (mail fraud,
racketeering, unlawful restraint of trade, and false statements in interstate
1
Because Ms. Hunter appears pro se, we afford her filings a liberal
construction. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010); Yang
v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
Pursuant to Federal Rule of Appellate Procedure 24(a)(3), the district
court’s grant of IFP status carries over to this appeal. See Brown v. Eppler, 725
F.3d 1221, 1229 (10th Cir. 2013).
3
Ms. Hunter named several other parties as defendants—namely, the
National Association of Insurance Commissioners and directors of other states’
insurance commissions. The district court properly noted that, “[t]o the extent
Plaintiff [wa]s seeking any action against these people and organizations, [it]
d[id] not have jurisdiction over them.” R. at 145 (Order Den. Mot. for TRO, filed
July 14, 2014).
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commerce) and alleged without explication that her “human rights” and civil
rights had been violated. R. at 88–96 (Second Am. Compl., filed June 12, 2014).
On June 19, 2014, Ms. Hunter filed a motion seeking a temporary
restraining order (“TRO”) or, alternatively, a preliminary injunction. In essence,
she argued that injunctive relief was necessary because (1) Mr. Hirsig and a host
of other entities were conspiring to “furnish[ ] . . . inaccurate information” about
her to credit-reporting agencies, id. at 102 (Mot. for TRO, filed June 19, 2014);
(2) Mr. Hirsig had refused to remove the information about her upon her request;
(3) this purportedly inaccurate information had formed the basis of WDOI’s
administrative (i.e., licensing) action against her; and (4) Mr. Hirsig’s alleged
conduct was damaging her “excellent reputation,” id. at 128. Ms. Hunter asked
the district court to enter a ruling ordering Mr. Hirsig to cease the administrative
effort to revoke her Wyoming insurance license.
The district court denied Ms. Hunter’s motion. In doing so, the court
collapsed Ms. Hunter’s TRO and preliminary-injunction requests into one
request—that is, a request for a preliminary injunction. See id. at 145 (“A party
seeking a temporary restraining order and preliminary injunction must prove all
four of the equitable factors weigh in Plaintiff’s favor . . . .”). Its ruling was
predicated on a finding that Ms. Hunter had failed to establish irreparable harm.
3
This timely appeal followed. 4
II
A
An order denying a TRO is generally not appealable. See Office of Pers.
Mgmt. v. Am. Fed’n of Gov’t Emps., 473 U.S. 1301, 1303–04 (1985); Populist
Party v. Herschler, 746 F.2d 656, 661 n.2 (10th Cir. 1984) (per curiam).
However, the order Ms. Hunter challenges is immediately appealable because it
“had the same ‘practical effect’” of denying a preliminary injunction. United
States v. Colorado, 937 F.2d 505, 507 (10th Cir. 1991) (quoting Carson v. Am.
Brands, Inc., 450 U.S. 79, 84 (1981)); see Populist Party, 746 F.2d at 661 n.2
(noting that such an order is appealable if it “in reality operates as [the denial of]
a preliminary injunction” (quoting Levesque v. Maine, 587 F.2d 78, 79 (1st Cir.
1978))). Indeed, the district court explicitly concluded that Ms. Hunter was “not
entitled to a . . . preliminary injunction,” R. at 147, thus enabling our appellate
review of the matter.
“Because a preliminary injunction is an extraordinary remedy, the right to
relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321
F.3d 1250, 1256 (10th Cir. 2003); see Gen. Motors Corp. v. Urban Gorilla, LLC,
4
Ms. Hunter concludes her opening brief with a request for the
appointment of counsel on appeal. Because of our ultimate affirmance of the
district court, insofar as we consider this request a motion for appellate counsel,
we deny it as moot.
4
500 F.3d 1222, 1226 (10th Cir. 2007) (noting that the grant of a preliminary
injunction is “the exception rather than the rule” (quoting GTE Corp. v. Williams,
731 F.2d 676, 678 (10th Cir. 1984))). We review the district court’s denial of a
preliminary injunction for an abuse of discretion. See Little v. Jones, 607 F.3d
1245, 1250 (10th Cir. 2010). Under this deferential standard, we will find an
abuse of discretion “only when the trial court bases its decision on an erroneous
conclusion of law or where there is no rational basis in the evidence for the
ruling.” Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,
1223–24 (10th Cir. 2008) (quoting Utah Licensed Beverage Ass’n v. Leavitt, 256
F.3d 1061, 1065 (10th Cir. 2001)); accord Wyoming v. U.S. Dep’t of Agric., 661
F.3d 1209, 1227 (10th Cir. 2011).
B
As the movant seeking a preliminary injunction, Ms. Hunter must
“demonstrate four factors: (1) a likelihood of success on the merits; (2) a
likelihood that [she] will suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in [her] favor; and (4) that the
injunction is in the public interest.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203,
1208 (10th Cir. 2009); see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). We have said that “[b]ecause a showing of probable irreparable harm is
the single most important prerequisite for the issuance of a preliminary
injunction, the moving party must first demonstrate that such injury is likely
5
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, 1260 (10th Cir. 2004) (alteration in original) (quoting Reuters Ltd. v.
United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990)). The district court
limited its analysis to this factor—concluding that Ms. Hunter failed to show that
she would suffer irreparable harm absent an injunction—and so do we.
Establishing irreparable harm is “not an easy burden to fulfill.” Greater
Yellowstone Coal., 321 F.3d at 1258. Although we have said that the term
“irreparable harm” “does not readily lend itself to definition,” Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (quoting
Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir.
1985)), our caselaw provides some guidance in that regard. Most saliently, our
precedent instructs that the injury must be “both certain and great,” not “merely
serious or substantial”; incapable of being “adequately atoned for in money”; or
of the sort that “the district court cannot remedy following a final determination
on the merits.” Id. (alteration omitted) (citations omitted); accord Port City
Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1190 (10th Cir. 2008).
Having thoroughly reviewed the record, we find that the district court
correctly discerned no showing of irreparable harm. As noted supra, Ms. Hunter
cabined her allegations concerning this factor to reputational injury. But she did
so in cursory fashion, claiming only that WDOI was impugning her “excellent”
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name in the insurance industry by contributing in some amorphous way to
“another racket against [her].” R. at 125. Even construing Ms. Hunter’s pro se
filings liberally, as we must, we would be hard-pressed to find that these
averments describe an injury that satisfies any of our formulations of irreparable
harm for at least two reasons.
First, bedrock caselaw patently precludes Ms. Hunter’s ability to stake a
claim for injunctive relief on damage to her reputation. The Supreme Court has
expressly held that even if the record reflects “a satisfactory showing . . . that [the
litigant’s] reputation would be damaged as a result of the challenged agency
action, . . . the showing [will] fall[] far short of the type of irreparable injury
which is a necessary predicate to the issuance of a[n] . . . injunction.” Sampson v.
Murray, 415 U.S. 61, 91–92 (1974); accord Office of Pers. Mgmt., 473 U.S. at1304 n.6; see also Franks v. Nimmo, 683 F.2d 1290, 1294 (10th Cir. 1982).
Indeed, the Court has drawn an important “distinction between an action at law
for damages—which are intended to provide a victim with monetary
compensation for an injury to his person, property, or reputation—and an
equitable action for specific relief.” Bowen v. Massachusetts, 487 U.S. 879, 893
(1988) (emphasis added). We accordingly have embraced the principle that
“[a]ny loss of prestige, standing, or reputation that [the plaintiff] may have
suffered prior to filing this action can be remedied through money damages and
does not justify a preliminary injunction.” Schrier v. Univ. of Colo., 427 F.3d
7
1253, 1266 (10th Cir. 2005) (citation omitted). In other words, Ms. Hunter’s
challenge is meritless because, as a matter of well-settled law, allegations of
reputational injury do not rise to the level of irreparable harm that could justify
injunctive relief.
Second, even if Ms. Hunter could be heard to argue that the challenged
licensing action, by damaging her good name and reputation, is impeding her
ability to practice her chosen profession, that theory of relief would fail because it
is not borne out by the record. Ms. Hunter has offered no evidence indicating
how WDOI’s conduct has negatively impacted her livelihood in any of the
jurisdictions in which she purportedly holds an insurance license, nor how it
might do so in the future. Indeed, as particularly relevant to the challenged
agency proceedings, she has failed to demonstrate that she has ever conducted (or,
for that matter, ever intends to conduct) any business in Wyoming that could
potentially suffer if she loses her Wyoming insurance license. In other words,
Ms. Hunter has no legally cognizable basis for the relief that she seeks given that
she has not even alleged “[e]conomic loss[, which] usually does not, in and of
itself, constitute irreparable harm.” Heideman v. S. Salt Lake City, 348 F.3d
1182, 1189 (10th Cir. 2003); accord Port City Props., 518 F.3d at 1190.
In sum, binding precedent makes clear that Ms. Hunter’s claimed injuries
are overly speculative. And, insofar as they are redressable, it would be through
the vehicle of money damages after any merits determination. The district court
8
thus properly found no irreparable harm and did not abuse its discretion in
denying injunctive relief.
Lastly, we observe that the makeup of Ms. Hunter’s appellate briefing does
not avail her cause. She raises a host of miscellaneous contentions without
substantiation—including those that assail the district court’s character and aver
that state insurance officials are criminally conspiring against her. Her arguments
in this vein wholly lack merit and we decline to address them further. See Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(“[Plaintiff’s] briefs in this court contain no argument of substance, and the
[briefs’] tone convinces us to refrain from exercising any discretion we may have
to delve for substance in a pro se pleading.”).
III
For the reasons discussed above, we AFFIRM the district court’s denial of
injunctive relief.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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