Bent v. Talkin , 280 F. Supp. 3d 107 ( 2017 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    MICHAEL S. BENT,
    Plaintiff
    Civil Action No. 17-2320 (CKK)
    v.
    PAMELA TALKIN, et al.,
    Defendants
    MEMORANDUM OPINION
    (November 30, 2017)
    The Plaintiff in this case is currently petitioning the United States Supreme Court for a
    Writ of Certiorari in a separate matter. He has brought this lawsuit, pro se, to challenge the
    method by which the Supreme Court has required him to deliver his petition. Before the Court is
    Plaintiff’s [7] Application for Temporary Restraining Order and Preliminary Injunction. Upon
    consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole, the
    Court will DENY Plaintiff’s Application. The Court will also DISMISS this case for lack of
    jurisdiction.
    I.      BACKGROUND
    In a separate proceeding, Plaintiff has filed suit challenging the constitutionality of a
    federal program related to child support payments. The details of that lawsuit are not relevant to
    the Application before this Court. What is relevant, however, is that Plaintiff’s claims in that
    1
    The Court’s consideration has focused on the following documents:
    • Pl.’s App. for Temporary Restraining Order and Preliminary Injunction (“Pl.’s App.”),
    ECF No. 7;
    • Defs.’ Opp’n to Pl.’s App. for Temporary Restraining Order and Preliminary Injunction
    (“Defs.’ Opp’n”), ECF No. 9; and
    • Pl.’s Reply to Defs.’ Opp’n to Pl.’s App. for Temporary Restraining Order and
    Preliminary Injunction, ECF No. 10 (“Pl.’s Reply”).
    In an exercise of its discretion, the Court finds that holding oral argument in this action would
    not be of assistance in rendering a decision. See LCvR 7(f).
    1
    lawsuit were dismissed, and he has allegedly filed a petition to the Supreme Court asking them to
    review that dismissal.
    The case before this Court is about Plaintiff’s struggles to ensure that an authentic copy
    of his petition makes its way to the Supreme Court in his other lawsuit. Plaintiff alleges that he
    first sent his petition through the United States Postal Service to the Clerk of the Supreme Court,
    but that the petition was “intercepted by Supreme Court police” and “sent to off-site inspection.”
    Compl., ECF No. 1, at ¶ 17. Plaintiff alleges that “[a]fter four weeks of unexpected delay, the
    accompanying filing payment and certificates were reported missing.” 
    Id. Plaintiff claims
    that he then arranged for the hand-delivery of his petition. 
    Id. ¶ 18.
    His
    courier was allegedly informed that he was required by rule to leave the petition with police
    officers in a police booth outside of the Supreme Court building. 
    Id. ¶ 21.
    The courier did so.
    
    Id. ¶ 22.
    Plaintiff was subsequently advised that the documents the courier had delivered had
    been—once again—sent off-site for inspection for safety purposes. 
    Id. ¶ 23.
    The petition was
    later returned to the Supreme Court and docketed, but Plaintiff is concerned that the documents
    that were docketed may have been “tampered with” and may not be “authentic.” 
    Id. ¶ 25.
    The focus of Plaintiff’s complaint is a rule that he alleges requires his petition be left at
    the police booth outside of the Supreme Court instead of directly with the Clerk of the Supreme
    Court. The rule Plaintiff challenges (“the Rule”) states that:
    Briefs that are delivered to the police booth at the North Drive of the
    Supreme Court building before 2:00 p.m. on a day that the Court is
    open for business will be delivered to the Clerk’s Office that same
    day, provided that they are submitted in an open container. To be
    considered an “open container,” the package containing the briefs
    may not be sealed or taped shut, and no envelopes or other
    containers within or attached to the package may be sealed or taped
    shut. Parties to merits cases are strongly encouraged to have briefs
    hand-delivered to the police booth at the North Drive of the Supreme
    2
    Court building, rather than having those briefs delivered by U.S.
    mail or commercial carrier.
    
    Id. ¶ 3.
    Plaintiff alleges that there is no authority for the Rule, and that in fact the Rule
    contravenes other Supreme Court rules and regulations. 
    Id. ¶¶ 30-40.
    Plaintiff also claims that
    the Rule violates his rights under the Fourth and Fifth Amendments to the United States
    Constitution.
    After filing his lawsuit, Plaintiff filed the pending Application for Temporary Restraining
    Order and Preliminary Injunction. Plaintiff asks the Court to enjoin Defendants, the Marshal of
    the Supreme Court and the Chief of Police of the Supreme Court, from enforcing the Rule.
    Plaintiff requested that his Application be resolved by December 1, 2017. Plaintiff’s petition has
    already been denied by the Supreme Court, and December 1, 2017 is Plaintiff’s deadline to file a
    petition for rehearing.
    II.     LEGAL STANDARD
    “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a
    clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 
    644 F.3d 388
    , 392
    (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 
    555 U.S. 7
    , 22 (2008)); see
    also Mazurek v. Armstrong, 
    520 U.S. 968
    , 972 (1997) (“[A] preliminary injunction is an
    extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
    showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A
    plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the
    merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that
    the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
    Aamer v. Obama, 
    742 F.3d 1023
    , 1038 (D.C. Cir. 2014) (quoting 
    Sherley, 644 F.3d at 392
    3
    (quoting 
    Winter, 555 U.S. at 20
    ) (alteration in original; quotation marks omitted)). “‘When
    seeking a preliminary injunction, the movant has the burden to show that all four factors, taken
    together, weigh in favor of the injunction.’” Abdullah v. Obama, 
    753 F.3d 193
    , 197 (D.C. Cir.
    2014) (quoting Davis v. Pension Benefit Guar. Corp., 
    571 F.3d 1288
    , 1292 (D.C. Cir. 2009)).
    “The four factors have typically been evaluated on a ‘sliding scale.’” 
    Davis, 571 F.3d at 1291
    (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually
    strong showing on one of the factors, then it does not necessarily have to make as strong a
    showing on another factor.” 
    Id. at 1291-92.
    The Court notes that it is not clear whether this Circuit’s sliding-scale approach to
    assessing the four preliminary injunction factors survives the Supreme Court’s decision in
    Winter. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 
    105 F. Supp. 3d 108
    , 112 (D.D.C.
    2015). Several judges on the United States Court of Appeals for the D.C. Circuit have “read
    Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-
    standing requirement for a preliminary injunction.’” 
    Sherley, 644 F.3d at 393
    (quoting 
    Davis, 571 F.3d at 1296
    (concurring opinion)). However, the Court of Appeals has yet to hold
    definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs 
    USA, 105 F. Supp. 3d at 112
    . In any event, this Court need not resolve the viability of the sliding-scale
    approach today as the Court determines that “a preliminary injunction is not appropriate even
    under the less demanding sliding-scale analysis.” 
    Sherley, 644 F.3d at 393
    .
    III.   DISCUSSION
    The Court will deny Plaintiff’s Application for preliminary injunctive relief because all
    four of the traditional factors that the Court considers when assessing such a motion weigh
    heavily against entering an injunction. Moreover, the Court must dismiss this case in its entirety
    because it is clear that it lacks jurisdiction.
    4
    A. Plaintiff Fails to Establish a Likelihood of Success on the Merits
    The most fundamental reason that Plaintiff’s Application for preliminary injunctive relief
    will be denied is that he has not established a likelihood of success on the merits of his claims.
    At its core, Plaintiff’s lawsuit effectively asks this Court to decide that the Supreme Court—or
    certain components thereof, e.g., the Clerk, Marshall or Chief of Police—is wrong to require
    Plaintiff’s petition be filed a certain way, and to dictate how that Court’s Clerk must accept
    filings in the future. This lawsuit is quite unlikely to succeed—and indeed will be dismissed—
    for the threshold reason that district courts may not “compel the Clerk of the Supreme Court to
    take any action.” In re Marin, 
    956 F.2d 339
    , 340 (D.C. Cir. 1992). The Supreme Court itself
    has exclusive inherent supervisory authority over its own Clerk and, for that reason, district
    courts lack jurisdiction over cases challenging the filing practices of the Supreme Court. See 
    id. (affirming dismissal
    of case in which plaintiff “claim[ed] the Clerk erroneously rejected certain
    of his filings”); Gillenwater v. Harris, No. CV 16-CV-495 (TSC), 
    2016 WL 8285811
    , at *1
    (D.D.C. Apr. 12, 2016), aff’d, No. 16-5107, 
    2016 WL 6915556
    (D.C. Cir. Oct. 5, 2016), cert.
    denied, 
    137 S. Ct. 1346
    , 
    197 L. Ed. 2d 521
    (2017) (dismissing case for lack of jurisdiction where
    plaintiff sought “a declaratory judgement that a statute and rule governing filings in
    the Supreme Court [were] unconstitutional”); Miller v. Harris, No. CV 14-1330, 
    2014 WL 3883280
    , at *1 (D.D.C. Aug. 5, 2014), aff’d, 599 F. App’x 1 (D.C. Cir. 2015) (dismissing case
    where plaintiff “sue[d] the Clerk of the United States Supreme Court and other employees of that
    office for returning his petition for writ of habeas corpus” because the court lacked “jurisdiction
    to review the decisions of the United States Supreme Court, including those of its Clerk of
    Court.”).
    5
    In Plaintiff’s Reply, he responds to this argument by claiming that the Court does have
    jurisdiction over this case because the Rule at issue is allegedly in conflict with the official Rules
    of the Supreme Court. Even if this were true, it would go to the merits of Plaintiff’s claim, not
    the Court’s jurisdiction. The Court lacks jurisdiction regardless of why Plaintiff claims the Rule
    is invalid, because the Court simply cannot tell the Supreme Court how to handle its filing
    system. This jurisdictional hurdle makes it impossible for Plaintiff to succeed on the merits of
    his claims. 2 This not only weighs against the Court granting Plaintiff’s Application, it also
    requires that the Court dismiss this case for lack of jurisdiction.
    B. Plaintiff Fails to Show Irreparable Injury
    Plaintiff’s failure to demonstrate that he will suffer irreparable injury in the absence of
    preliminary injunctive relief also weighs against his Application. To show that a preliminary
    injunction is warranted, Plaintiff must demonstrate that there is a likelihood of irreparable harm.
    See Chaplaincy of Full Gospel Churches v. England, 
    454 F.3d 290
    , 297 (D.C. Cir. 2006) (“A
    movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a
    preliminary injunction, even if the other three factors entering the calculus merit such relief.”).
    The Court of Appeals for the D.C. Circuit “has set a high standard for irreparable injury.” 
    Id. “First, the
    injury ‘must be both certain and great; it must be actual and not theoretical.’” 
    Id. (citation omitted).
    “Second, the injury must be beyond remediation.” 
    Id. Here, any
    harm Plaintiff fears may befall him is entirely speculative. The Court
    understands that Plaintiff fears that his papers may be tampered with if he files them according to
    2
    Defendants also argue that Plaintiff is unlikely to succeed on the merits because officers of the
    Supreme Court enjoy immunity from suits for monetary damages based on actions within their
    official duties. The Court agrees with Defendants as a legal principle, but the Court does not rest
    its decision to deny Plaintiff’s Application on this principle. Although Plaintiff’s Civil Cover
    Sheet does state a demand of $450, ECF No. 1-1 at 2, the Prayer for Relief in Plaintiff’s actual
    Complaint does not request money damages, Compl. at 14.
    6
    the Supreme Court’s delivery rules. But Plaintiff has presented nothing but his own unfounded
    speculation to support that theory. Not only is there no evidence that anyone will tamper with
    his filings, Plaintiff has not even offered a plausible motive or incentive for anyone to do so.
    Plaintiff does not explain why the individuals who are allegedly conducting the safety
    inspections of his documents—the identities of whom he does not know—have any reason to do
    him harm. Mere speculation is far from sufficient to establish an entitlement to preliminary
    injunctive relief. 
    Id. (holding that
    an irreparable injury must be “actual and not theoretical”).
    C. Public Interest and the Balance of Hardships
    Finally, the Court also finds that the balance of hardships and the public interest weigh
    against granting Plaintiff’s Application. Enjoining the challenged rule could harm Defendants
    and the public. As the Court understands it, the challenged Rule is in place to ensure the safety
    of the Supreme Court. This is clearly a weighty and legitimate public interest. The Court is well
    aware that our Nation’s federal courts—and the Supreme Court in particular—have been the
    target of attacks through the mail or other deliveries in the past. See, e.g., Anne Gearan,
    Supreme Court Mail Has Anthrax Scare, WASHINGTON POST, Oct. 26, 2001,
    http://www.washingtonpost.com/wp-srv/aponline/20011026/aponline134723_000.htm. No
    significant hardship to Plaintiff has been shown that would outweigh this important public safety
    interest. In fact, as explained above, the Court is not satisfied by Plaintiff’s showing that
    maintaining the Supreme Court’s filing rules will cause him any harm at all.
    D. Dismissal for Lack of Jurisdiction
    For the same reasons that the Plaintiff has not demonstrated a likelihood of success on the
    merits of his claims, the Court must dismiss this case. It is clear that the Court lacks jurisdiction
    over Plaintiff’s lawsuit. See In re 
    Marin, 956 F.2d at 340
    (district courts may not “compel the
    7
    Clerk of the Supreme Court to take any action”). Despite the fact that no motion to dismiss has
    been filed, the Court may not ignore this lack of jurisdiction. It must dismiss this case. See Fed.
    R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
    the court must dismiss the action.”).
    IV.   CONCLUSION
    For the foregoing reasons Plaintiff’s Application for Temporary Restraining Order and
    Preliminary Injunction will be DENIED and this case will be DISMISSED. An appropriate
    Order accompanies this Memorandum Opinion.
    /s/
    COLLEEN KOLLAR-KOTELLY
    United States District Judge
    8