United States District Court, District of Columbia
MICHAEL S. BENT, Plaintiff
PAMELA TALKIN, et al., Defendants
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
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  Application for Temporary Restraining
Order and Preliminary Injunction. Upon consideration of the
pleadings,  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
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
lawsuit were dismissed, and he has allegedly filed a petition
to the Supreme Court asking them to review that dismissal.
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
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.
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 Court building, rather than
having those briefs delivered by U.S. mail or commercial
Id. ¶ 3.
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.
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.
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  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.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014)
(quoting Sherley, 644 F.3d at 392 (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.
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 ...