                             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



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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


                                                      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.

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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


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




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