BENT v. TALKIN et al

Filing 12

MEMORANDUM OPINION Regarding 11 ORDER DENYING Plaintiff's 7 Application for Temporary Restraining Order and Preliminary Injunction, and DISMISSING case. The Clerk of the Court shall mail a copy of this Memorandum Opinion, overnight, to Plaintiff's address of record. Signed by Judge Colleen Kollar-Kotelly on 11/30/2017. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL S. BENT,
Plaintiff
v.

Civil Action No. 17-2320 (CKK)

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

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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).
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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

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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
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(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, freestanding 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.
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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.”).

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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
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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.
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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

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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

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