NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1788

____________

JULIE A. BEBERMAN,

Appellant

v.

UNITED STATES DEPARTMENT OF STATE;

SECRETARY OF STATE

 ____________

Appeal from the District Court of the United States

Virgin Islands

(D.C. No. 1-14-cv-00020)

District Judge: Hon. Wilma A. Lewis

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 12, 2016

__________

Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

(Filed: January 12, 2017)

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OPINION∗

____________

 ∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

CHAGARES, Circuit Judge.

Julie A. Beberman appeals from the District Court’s decisions denying her

motions for a preliminary injunction and for reconsideration. Beberman, a United States 

Department of State employee, brought an employment discrimination suit alleging that 

her supervisor discriminated against her on the basis of age. Beberman sought a 

preliminary injunction to prevent her from having to leave her assignment in Equatorial 

Guinea and return to Washington, D.C. after she was denied tenure as a Foreign Service 

Officer. The District Court concluded that Beberman failed to demonstrate irreparable 

harm because if she prevailed on her lawsuit, she would be adequately compensated by 

money damages and equitable relief. We will affirm.

I. 

We write solely for the parties and therefore recite only the facts necessary to our 

disposition. Beberman accepted a position with the State Department in January 2010. 

She served as a Foreign Service Officer at the embassy in Caracas, Venezuela from 

October 2011 to November 2012. After serving the term of her assignment in Venezuela,

Beberman was reassigned to Washington, D.C. and then to Equatorial Guinea for a threeyear tour set to conclude in 2017. 

In May 2014, Beberman filed a complaint against the Department of State and the 

Secretary of State in his official capacity, alleging gender discrimination under Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, age discrimination under the Age 

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a, and a violation of the 

Privacy Act of 1974, 5 U.S.C. § 552. Beberman filed a First Amended Complaint in 
3

which she withdrew her Title VII gender discrimination claim, and the District Court 

accepted the parties’ stipulation to the dismissal of the Privacy Act claim. Beberman 

alleged in the First Amended Complaint that while serving at Embassy Caracas, her

supervisor, Eric Cohan, discriminated against her on the basis of age by, inter alia, 

publicly ridiculing her, challenging her visa adjudication decisions, terminating her 

access to consular systems, accusing her of violating an internal protocol known as Visa 

Lookout Accountability, and preventing her from participating in a scheduled rotation.1

While this litigation was ongoing, Beberman was denied tenure as a Foreign 

Service Officer. Joint Appendix (“J.A.”) 232. Beberman was thus required to leave her 

post in Equatorial Guinea and forego certain benefits associated with her overseas 

assignment, including hardship pay, service needs differential, and access to the Student 

Loan Repayment Program. 

On March 18, 2016, Beberman filed an emergency motion for a temporary 

restraining order or preliminary injunction, seeking an order from the District Court

directing the Department of State to retain her in her assignment in Equatorial Guinea. 

The District Court denied the motion. Beberman filed a motion for reconsideration, 

which the District Court also denied. 

 1 Beberman filed several amended complaints, although she failed to obtain leave to do 

so. The Third Amended Complaint included a retaliation claim. Joint Appendix (“J.A.”) 

215. The District Court has not ruled on any of Beberman’s motions for leave to amend 

her complaint. State Dept. Br. 3 n.1.
4

This timely appeal followed.2

 

II. 

The District Court had jurisdiction pursuant to 48 U.S.C. § 1612, 28 U.S.C. 

§ 1331, and 29 U.S.C. § 633a. We have jurisdiction to review the District Court’s denial 

of Beberman’s motions for a preliminary injunction and reconsideration as interlocutory 

orders pursuant to 28 U.S.C. § 1292(a)(1).3

 

We review the District Court’s decision to grant or deny a preliminary injunction 

for abuse of discretion. Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 

(3d Cir. 2014). The District Court’s findings of fact are reviewed for clear error, and its 

conclusions of law are subject to plenary review. Id. We review the District Court’s 

decision not to hold an evidentiary hearing prior to denying the motion for a preliminary 

injunction for abuse of discretion. Elliott v. Kiesewetter, 98 F.3d 47, 53 (3d Cir. 1996).

A plaintiff seeking preliminary relief must show that “he is likely to succeed on 

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, 

that the balance of equities tips in his favor, and that an injunction is in the public 

interest.” Ferring Pharm., Inc., 765 F.3d at 210 (quoting Winter v. Nat. Res. Def. 

 2

 Beberman filed with her notice of appeal an “Urgent Motion for Injunction Pending 

Appeal.” This Court denied that motion on April 5, 2016 on the grounds that Beberman 

had failed to establish irreparable harm for substantially the same reasons set forth by the 

District Court. Supplemental Appendix 23. 

3 We lack jurisdiction to review the District Court’s decision to the extent it denied a 

temporary restraining order. See Vuitton v. White, 945 F.2d 569, 573 (3d Cir. 1991) 

(“[O]rders granting or denying temporary restraining orders, unlike orders granting or 

denying preliminary injunctions, have been found not to be appealable under 

§ 1292(a)(1).”).
5

Council, Inc., 555 U.S. 7, 20 (2008)). The movant bears the burden of showing that these 

four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. 

Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). The “failure to establish any 

element . . . renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit–Mar 

Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999); see also In re Arthur Treacher’s 

Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) (“[A] failure to show a likelihood 

of success or a failure to demonstrate irreparable injury, must necessarily result in the 

denial of a preliminary injunction.”). 

III.

Beberman argues on appeal that the District Court acted outside its discretion in 

denying her motion for preliminary relief. She also argues that the District Court erred 

by failing to hold an evidentiary hearing or make adequate findings of fact and 

conclusions of law before ruling on her motion. We have considered Beberman’s 

arguments, and for the following reasons, we will affirm the District Court’s 

determination.

A. 

The District Court denied Beberman’s motion principally on the basis that 

Beberman did not establish irreparable harm. The District Court also concluded that 

none of the remaining preliminary injunction factors favored relief. We agree with the 

District Court that Beberman failed to demonstrate an imminent risk of irreparable harm

and consider that a sufficient ground upon which to have denied relief. 
6

“[T]o demonstrate irreparable harm the plaintiff must demonstrate potential harm 

which cannot be redressed by a legal or an equitable remedy following a trial. The 

preliminary injunction must be the only way of protecting the plaintiff from harm.” 

Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) (quoting Instant Air 

Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)). It is not enough 

that the harm be “serious or substantial, . . . . [I]t must be of a peculiar nature, so that 

compensation in money cannot atone for it.” ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 

226 (3d Cir. 1987) (quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir. 1977)).

The District Court properly concluded that even if Beberman prevailed in her 

lawsuit, she could be adequately compensated by money damages or reinstatement under 

the ADEA. See 29 U.S.C. § 626(b) (“[T]he court shall have jurisdiction to grant such 

legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, 

including without limitation judgments compelling employment, reinstatement or 

promotion . . . .”); see also Sampson v. Murray, 415 U.S. 61, 90 (1974) (“[T]he 

temporary loss of income, ultimately to be recovered, does not usually constitute 

irreparable injury.”). Even if Beberman’s position were no longer available for 

reinstatement at the time of judgment, a court could fashion a substitute alternative 

remedy as necessary. Cf. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 

(2001) (discussing, in the context of Title VII employment discrimination claims, the 

remedies a court may order when reinstatement is not immediately available or viable). 

Similarly, Beberman has not shown that the legal process would not adequately redress 

any actual loss of benefits associated with her overseas assignment. See, e.g., Blum v. 
7

Witco Chem. Corp., 829 F.2d 367, 373 (3d Cir. 1987) (observing that the ADEA’s 

“broad language” encompasses a “make-whole philosophy”). 

Beberman is also not entitled to preliminary relief on the basis that being required 

to leave her post unexpectedly would cause her to “lose forever the opportunity and 

satisfaction of serving as a U.S. diplomat in Equatorial Guinea.” Beberman Br. 47. 

While this may be an unfortunate consequence of the tenure denial decision, it is not the 

type of “extreme deprivation” that a preliminary injunction is designed to remedy. 

Morton v. Beyer, 822 F.2d 364, 372–73 & n.13 (3d Cir. 1987); see also Moteles v. Univ. 

of Pa., 730 F.2d 913, 919 (3d Cir. 1984) (“[A] discharge from employment with all of its 

attendant difficulties is not irreparable injury . . . .”). 

Beberman next argues that the District Court acted outside its discretion by failing 

to consider the effect of her retaliation claim on the assessment of irreparable harm. We 

reject this contention for at least three reasons. First, Beberman’s retaliation claim was

not stated in the operative First Amended Complaint. It was included only in her Third 

Amended Complaint, which she lacked leave to file. Fed. R. Civ. P. 15(a)(2). As 

Beberman concedes, the Third Amended Complaint was thus not the “active complaint” 

when the motion for preliminary injunction was filed. Beberman Reply Br. 6. Second, 

Beberman did not address retaliation in her briefing on the preliminary injunction. To the 

contrary, she addressed only the possibility of “personal irreparable harm.” J.A. 222. 

She thus insulated this theory of relief from appellate review. See Iraola & CIA, S.A. v. 

Kimberly–Clark Corp., 325 F.3d 1274, 1284–85 (11th Cir. 2003). Finally, Beberman 

offered no evidence, much less “affirmative evidence,” from which it could be inferred 
8

that any chill of protected activity had occurred or was imminent. Marxe v. Jackson, 833 

F.2d 1121, 1126, 1128–29 (3d Cir. 1987) (observing that although retaliatory discharge 

may be relevant because it can discourage potential witnesses from cooperating with the 

plaintiff or from pursuing their own civil rights claims, the plaintiff still bears a burden to

show irreparable harm). The District Court therefore did not err by failing to consider 

Beberman’s retaliation claim. 

Because Beberman has not established a risk of irreparable harm, the District 

Court did not act outside its discretion in denying her motion for a preliminary injunction. 

Thus, we need not delve into Beberman’s remaining arguments. See Am. Express Travel 

Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 374 (3d Cir. 2012) (declining to 

address the remaining preliminary injunction factors when the plaintiff failed to meet one 

factor); NutraSweet Co., 176 F.3d at 153.

B. 

Beberman also argues that the District Court acted outside its discretion by 

declining to hold an evidentiary hearing or by failing to make adequate findings of fact 

and conclusions of law. We do not agree. 

“[A]n evidentiary hearing is not always required before resolving a preliminary 

injunction.” Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., LLC, 793 F.3d 313, 

324 (3d Cir. 2015). Indeed, “a district court is not obliged to hold a hearing when the 

movant has not presented a colorable factual basis to support the claim on the merits or 

the contention of irreparable harm.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 

1176 (3d Cir. 1990). To determine whether the District Court has made adequate 
9

findings supporting the denial of an injunction, we “look[] to see whether the record 

provides a sufficient basis to ascertain the legal and factual grounds for the grant or 

denial of the injunction.” Id. at 1178–79. 

The District Court here determined that there was no factual basis to support 

Beberman’s claim of irreparable harm and made adequate findings on that issue sufficient

to permit appellate review.

4

 Because the District Court could resolve this issue on legal 

grounds alone, an evidentiary hearing was unnecessary. Accordingly, we reject

Beberman’s contentions that the District Court erred by failing to hold an evidentiary 

hearing or by making inadequate findings and conclusions. 

IV.

For the foregoing reasons, we will affirm the District Court’s orders denying a 

preliminary injunction and denying the motion to reconsider.

 4 As discussed, the District Court’s denial of the preliminary injunction motion for failure 

to show irreparable harm was an independently sufficient legal ground on which to 

resolve the motion. To the extent Beberman challenges the District Court’s purported 

failure to make factual findings on the other prongs of the preliminary injunction 

analysis, we need not address those arguments.