United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
last several years Plaintiff Mark Thorp has waged a lengthy
legal battle against the District of Columbia over what he
claims was an unlawful 2015 search of his home and arrest for
drug and animal-cruelty charges. Although this Court recently
granted summary judgment to the District, see Thorp v.
D.C. (Thorp I), 2018 WL 2364291 (D.D.C. May 24, 2018),
Thorp is not waving a white flag. Instead, on May 7, 2018, he
filed a new suit against, inter alia, the city's
lawyers, asserting a farrago of counts arising from the D.C.
Office of Tax Revenue's issuance of tax summonses to
twelve corporate entities affiliated with him and his
nightclub business. Plaintiff contends that, rather than
being issued for permissible civil purposes, these summonses
are in fact part of a criminal investigation launched against
him as retaliation for filing the prior suit.
the summonses as the latest fusillade in a comprehensive
scheme to interfere with the prosecution of his earlier case,
Thorp asserts that OTR is acting in bad faith and has gone
far beyond the scope of its civil authority under D.C. Code
§ 47-4310. Plaintiff alleges that the summonses
therefore violate his First, Fourth, Fifth, and Sixth
Amendment rights, as well as constituting a conspiracy to
deprive him of his civil rights, an abuse of process, and a
violation of the Tax Equity and Fiscal Responsibility Act of
1982. Relying on his constitutional claims, Thorp has now
moved for a preliminary injunction, asking this Court to
enjoin the District from enforcing the OTR summonses.
indicated at oral argument, the Court remains puzzled why
Plaintiff has chosen to file a 37-page lawsuit in federal
court instead of simply challenging OTR's summonses or
its authority in the D.C. Superior Court. In any event, the
Court concludes that such a pre-enforcement action
challenging state tax administration is not a proper matter
for the federal system. Under the doctrine of comity,
Thorp's myriad claims regarding OTR's actions belong
instead in Superior Court. This Court, consequently,
concludes that Plaintiff cannot show a likelihood of success
on the merits sufficient for a preliminary injunction to
issue, as he cannot even show a likelihood that this Court
should hear his case. The Court finds, additionally, that
Thorp cannot demonstrate the requisite likelihood of
irreparable harm for injunctive relief. Here, the OTR
summonses at issue remain pending and unenforced.
Plaintiff's parade of horribles regarding the impact of
the records requests therefore is largely speculative, and
his alleged injuries far from certain. As the Court thus
concludes that Thorp's claims do not warrant the
“extraordinary remedy” of a preliminary
injunction, it will deny his Motion.
February 2015, Thorp filed suit against the District of
Columbia and Metropolitan Police Department Lieutenant Ramey
Kyle, alleging, inter alia, that the police
illegally searched and seized his home and stole certain
valuables. On May 24, 2018, this Court granted summary
judgment for Defendants. See ECF No. 117, No. 15-195
(Order). The Court rejected Thorp's Fourth Amendment
claims, as well as his false-arrest, abuse-of-process, and
negligent-supervision counts. See Thorp I, 2018 WL
2364291, at *1, 13.
7, 2018, less than three weeks before the issuance of the
Opinion in Thorp I, Plaintiff filed this suit
against counsel for Defendants in that case - Assistant
Attorneys General Conrad Risher and Michael Tilghman - OTR
Agent Bruce Traina, and the District itself. This latest
Complaint addresses a series of tax summonses for books and
records related to various entities allegedly controlled by
Thorp - summonses that he claims are in fact directly related
to the proceedings in Thorp I. Plaintiff asserts in
his Complaint that the summonses were improperly issued as
part of a criminal investigation that was launched to
retaliate against him for filing suit against the District
and to prevent him from litigating the 2015 matter. Under
this retaliation theory, Thorp brings a series of
constitutional, statutory, and common-law claims.
he alleges in Count I that Defendants Traina and Risher
violated his First Amendment rights by having
“initiated and caused to be initiated new criminal
investigation proceedings, ” which “are intended
to punish and retaliate against the Plaintiff for his
disclosures of governmental misconduct and his attempts to
seek remedies through civil process.” Compl.,
¶¶ 195-96. Such conduct, Plaintiff contends,
“has deprived [him] of his right of redress and other
forms of freedom of speech guaranteed by the First
Amendment.” Id., ¶ 197.
second count also alleges a constitutional violation -
namely, a Fifth Amendment due-process violation arising from
Defendants' “unfounded and burdensome criminal
investigation, ” which Thorp asserts is “being
employed to harass [him]” and “to unlawfully
pressure [him] to settle a collateral dispute.”
Id., ¶¶ 207-211. His third count is
similarly based on the Fifth Amendment, as he alleges that
Defendant Tilghman violated his due-process rights when he
“unlawfully interfered with the proceedings by making
false statements regarding the availability of [Defendant]
Risher to the Court's law clerk outside of any legal
paper or official hearing.” Id., ¶ 220.
This contention is seemingly based on an alleged April 2,
2018, conversation between Tilghman and a law clerk of this
Court in which Thorp contends that Tilghman falsely stated
that “Risher was on ‘scheduled leave'”
when “Risher had specifically stated to the
Plaintiff's attorney three days earlier that he would be
in the office on April 2.” Id., ¶ 185.
This “false statement, ” Plaintiff asserts,
“was intended to thwart the Court's inquiry into
the alleged illegal conduct by Risher and Traina.”
Id., ¶¶ 185-86.
IV of the Complaint moves on to the Fourth Amendment,
alleging that “Defendant Traina is employing
administrative summonses to conduct a criminal
investigation” and that “[s]uch summonses for
compulsory production of private papers are searches and
seizures regulated under the Fourth Amendment.”
Id., ¶¶ 227-39. Counts V and VI are
similarly directed at the constitutionality of the OTR
request, claiming that “[b]y employing administrative
summonses to conduct a criminal investigation, ”
Defendant Traina violated Thorp's Sixth Amendment
“right to counsel in a criminal proceeding, ”
id., ¶ 241, and that the summonses also
“violate [his] right against compelled
self-incrimination” under the Fifth Amendment.
Id., ¶ 248.
VII is brought under 42 U.S.C. § 1985 and alleges that
Traina and Risher, “[i]n response to the 2015 lawsuit
and the 2018 Motion for Summary Judgment, ” have
“conspired to deter, by force, intimidation, or threat,
[Thorp's] participation in proceedings in this Court, and
to injure [Thorp's] person and property on account of his
having attended such proceedings.” Id., ¶
255. Count VIII alleges “abuse of process, ”
asserting that Traina and Risher used the administrative
summonses “for an ulterior motive, to punish [Thorp]
for the prosecution of [his] civil claims, ” “to
interfere with his further prosecution thereof, ” and
to “hinder any investigation into [Defendants']
illegal conduct.” Id., ¶¶ 263-66.
Finally, Count IX alleges a violation of the federal Tax
Equity and Fiscal Responsibility Act of 1982, claiming that
the District “by negligence or overt act has
permitted” the unlawful inspection and disclosure of
Thorp's federal-tax-return information. Id.,
¶¶ 270-71. As relief, Plaintiff seeks an Order
“declaring the summonses issued by Defendant Traina to
be unlawful, ” “enjoining the Defendants from
enforcing such summonses” and from “further
retaliatory acts” and “acts intended to interfere
with Thorp's participation in the 2015 lawsuit, ”
and an award of monetary damages. Id. at 37.
days after filing his Complaint, Plaintiff sought a temporary
restraining order, which the Court denied on May 11, 2018.
See Minute Order. Thorp also sought a preliminary
injunction, see ECF No. 5 (PI Mot.), which
Defendants opposed. See ECF No. 13 (Opp. to PI).
After the hearing on the PI Motion, this Court offered both
parties the opportunity to submit a “declaration
regarding the purpose(s) of the summonses.” Minute
Order of June 4, 2018. Both sides submitted supplemental
declarations in response to this Order, see ECF Nos.
16 (Def. Supp. Decl.), 17 (Pl. Supp. Decl.), and
Plaintiff's Motion for injunctive relief is now ripe for
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. NRDC, 555 U.S.
7, 24 (2008). A party seeking preliminary relief must make a
“clear showing that four factors, taken together,
warrant relief: likely success on the merits, likely
irreparable harm in the absence of preliminary relief, a
balance of the equities in its favor, and accord with the
public interest.” League of Women Voters of United
States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting
Pursuing America's Greatness v. FEC, 831 F.3d
500, 505 (D.C. Cir. 2016)). “The moving party bears the
burden of persuasion and must demonstrate, ‘by a clear
showing,' that the requested relief is
warranted.'” Hospitality Staffing Solutions,
LLC v. Reyes, 736 F.Supp.2d 192, 197 (D.D.C. 2010)
(citing Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
the Supreme Court's decision in Winter, courts
weighed these factors on a “sliding scale, ”
allowing “an unusually strong showing on one of the
factors” to overcome a weaker showing on another.
Davis v. PBGC, 571 F.3d 1288, 1291-92 (D.C. Cir.
2009); see Davenport v. Int'l Bhd. of Teamsters,
166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit has
hinted, though not held, that Winter - which
overturned the Ninth Circuit's “possibility of
irreparable harm” standard - establishes that
“likelihood of irreparable harm” and
“likelihood of success” are
requirement[s].'” Sherley v. Sebelius, 644
F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis,
571 F.3d at 1296 (Kavanaugh, J., concurring)); see League
of Women Voters, 838 F.3d at 7 (declining to address
whether “sliding scale” approach is valid after
Winter). Unresolved, too, is the related question of
“whether, in cases where the other three factors
strongly favor issuing an injunction, a plaintiff need only
raise a ‘serious legal question' on the
merits.” Aamer v. Obama, 742 F.3d 1023, 1043
(D.C. Cir. 2014) (citation omitted).
of the extent to which showings of irreparable harm and
success on the merits can be diminished, some fundamentals of
the four-factor test bear reiterating. Because “the
basis of injunctive relief in the federal courts has always
been irreparable harm, ” Chaplaincy of Full Gospel
Churches, 454 F.3d at 297 (internal quotation marks and
citation omitted), a plaintiff must, at minimum,
“demonstrate that irreparable injury is likely
in the absence of an injunction, ” not just that injury
is a “possibility.” Winter, 555 U.S. at
22; see Davis, 571 F.3d at 1292. It is clear,
moreover, that where the plaintiff can show neither
harm nor success, it is plain that no relief is warranted.
See Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng'rs, 205 F.Supp.3d 4, 26 (D.D.C. 2016).
allege both jurisdictional and substantive defenses to
Thorp's Motion. As to the former, the District contends
that Plaintiff is per se unable to show a likelihood
of success on the merits as this Court in fact has no
authority to hear his case. The city additionally disputes
the substantive merits of Plaintiff's allegations against
the named parties. Next, Defendants question whether the harm
alleged is truly irreparable.
Likelihood of Success on the Merits
preliminary-injunction context, “the ‘merits'
on which plaintiff must show a likelihood of success
encompass not only substantive theories but also
establishment of jurisdiction.” Obama v.
Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015). Put
otherwise, the “affirmative burden of showing a
likelihood of success on the merits . . . necessarily
includes a likelihood of the court's reaching
the merits.” Nat'l Wildlife Fed'n v.
Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams,
J., concurring and dissenting). In asserting that Thorp
cannot clear this bar, Defendants submit two threshold
arguments against his case being heard before this Court -
viz., the Federal Tax Injunction Act (TIA) and ...