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Bent v. Talkin

United States District Court, District of Columbia

November 30, 2017

MICHAEL S. BENT, Plaintiff
PAMELA TALKIN, et al., Defendants



         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 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 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.


         “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 (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 ...

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