Thorp v. Dist. of Columbia

317 F. Supp. 3d 74
Court of Appeals for the D.C. Circuit·Decided June 22, 2018·No. Civil Action No. 18–1071 (JEB)·Published·Cited by 2 cases

Opinion

II. Legal Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. NRDC, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (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) ).

Before 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 " 'independent, free-standing 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 *80need only raise a 'serious legal question' on the merits." Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (citation omitted).

Regardless 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, 129 S.Ct. 365 ; 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).

III. Analysis

Defendants 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.

A. Likelihood of Success on the Merits

In the 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 the doctrine of comity as applied to issues of state tax law. The Court addresses each in turn-beginning with the TIA because it is jurisdictional-and then considers the merits of the claims.

1. Tax Injunction Act

According to Defendants, Thorp's suit cannot proceed here because it falls within the scope of the TIA.

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Thorp v. Dist. of Columbia, 317 F. Supp. 3d 74 (D.C. Cir. 2018).

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