UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK DANIEL LEITNER,
Plaintiff,
v. Civil No. 09-2342 (CKK)
UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION
(January 18, 2010)
Plaintiff Mark Daniel Leitner, acting pro se, originally filed the above-captioned action in
the Superior Court for the District of Columbia. While the case was still pending in Superior
Court, Plaintiff also filed a “Motion Request for Emergency Injunction” seeking issuance of a
preliminary injunction terminating his criminal prosecution in the United States District Court for
the Northern District of Florida, Pensacola Division. The case was subsequently removed to this
Court pursuant to 28 U.S.C. §§ 1441(b) and 1442(a)(1). Plaintiff has since objected to removal
and has moved for remand of this case back to Superior Court.
Presently before the Court are two motions: (1) Plaintiff’s filing made in response to
Defendants’ Notice of Removal, which the Court construes as a Motion to Remand pursuant to 28
U.S.C. § 1447(c); and (2) Plaintiff’s “Motion Request for Emergency Injunction.” Upon thorough
consideration of the parties’ filings, the relevant case law and the record of this case as a whole,
the Court concludes that the above-captioned case was properly removed to this Court and that
Plaintiff has not demonstrated that he is entitled to a preliminary injunction. Accordingly, the
Court shall DENY Plaintiff’s motion for remand as well as his “Motion Request for Emergency
Injunction,” for the reasons set forth below.
I. BACKGROUND
As indicated above, the above-captioned action was removed to this Court from the
Superior Court for the District of Columbia on December 9, 2009.1 See Notice of Removal,
Docket No. [1]. Plaintiff Mark Daniel Leitner, acting pro se, originally filed this civil action in
Superior Court on November 13, 2009, naming as Defendants: (a) the United States; (b) United
States Attorney General Eric Holder; (c) Tiffany Eggers, Assistant United States Attorney, whose
assigned post of duty is in Pensacola, Florida; (d) Thomas Kirwin, United States Attorney for the
Northern District of Florida; (e) Michael John Watling, a Trial Attorney within the Criminal
Enforcement Section Southern Region of the Tax Division, United States Department of Justice;
(f) William M. McCool, Clerk of Court for the United States District Court in the Northern
District of Florida; and (g) the Honorable M. Casey Rodgers, United States District Court Judge in
the Northern District of Florida, Pensacola Division (collectively, “Defendants”).
Although the exact contours of Plaintiff’s claims are difficult to ascertain, given the
rambling and often incoherent nature of his pro se complaint, Plaintiff’s lawsuit appears to be
principally directed at challenging his criminal indictment in the Northern District of Florida for
federal tax violations. To that end, Plaintiff seeks injunctive relief vacating his indictment in the
United States District Court for the Northern District of Florida and enjoining all further
proceedings in that criminal action; a writ of habeas corpus regarding pretrial conditions placed
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At the time the Notice of Removal was filed, counsel had not yet entered an appearance
on behalf of Defendants William M. McCool and Judge M. Casey Rodgers. Benjamin J. Weir,
Trial Attorney with the Department of Justice, Tax Division, who is counsel for the other
Defendants in this action, has since entered an appearance on behalf of Defendants McCool and
Judge Rodgers as well.
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upon him by Judge Rodgers, and damages of $525,000 stemming from his incarceration for “near
seven hours.” See Notice of Removal, Docket No. [1], Ex. A at pp. 6-57 (hereinafter,
“Complaint”). In addition, Plaintiff’s complaint purports to allege several claims premised upon
violations of various federal statutes, including the Trading with the Enemy Act, the Racketeer
Influenced Corrupt Organizations Act (RICO), and the Freedom of Information Act (FOIA). See
id.
On December 3, 2009, while the case remained pending in Superior Court, Plaintiff filed a
“Motion Request for Emergency Injunction.” As set forth therein, Plaintiff seeks an “emergency
injunction” pursuant to Fed. R. Civ. P. 65 enjoining “all proceedings relating to Petitioner
specifically in regards to alleged indictment/case No. 3:08-cr-0079 MCR out of the United States
District Court Northern District of Florida, Pensacola Division.” See Notice of Removal, Docket
No. [1], Ex. A at pp. 58-73 (hereinafter, “Pl.’s Mot. for P.I.”). Accordingly, on December 11,
2009, shortly after the case was removed, this Court issued a minute order advising Defendants
that their response to Plaintiff’s request for a preliminary injunction was due by no later than
December 14, 2009, pursuant to LCvR 65.1(c). See 12/11/09 Min. Order. Defendants timely filed
the required response to Plaintiff’s motion on December 14, 2009. See Defs.’ Opp’n to Pl.’s Mot.
for P.I., Docket No. [3]. That same day, the Court issued an order advising Plaintiff that his reply,
if any, in support of his request for a preliminary injunction was due and had to be postmarked by
no later than December 21, 2009. See 12/4/09 Order, Docket No. [4].
Plaintiff filed a response in compliance with the Court’s order. However, rather than file a
substantive reply in support of his motion for a preliminary injunction, Plaintiff instead chose to
file a response challenging the validity of the Defendants’ Notice of Removal and arguing that the
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Court was without jurisdiction to consider Plaintiff’s motion for emergency relief. Specifically,
Plaintiff argues that removal is improper and that this case must be remanded back to the Superior
Court for the District of Columbia, such that this Court lacks jurisdiction to rule on his motion for
a preliminary injunction. Although stylized as an “objection to notice of removal,” it is apparent
that Plaintiff intended this filing to serve as a motion for remand pursuant to 28 U.S.C. § 1447(c),
and the Court — cognizant of Plaintiff’s pro se status — indicated that it would treat Plaintiff’s
filing as such. See 1/5/10 Order, Docket No. [9]; Pl.’s Mot. to Remand, Docket No. [6].
Defendants filed an opposition to Plaintiff’s motion to remand on January 4, 2010, arguing that
removal was proper and that this Court has jurisdiction over Plaintiff’s complaint. See Defs.’
Opp’n, Docket No. [7]. Upon receipt of Defendants’ opposition, the Court issued an order
advising Plaintiff that his reply, if any, in support of his motion to remand was due by no later than
January 15, 2010. See 1/5/10 Order. Plaintiff has since timely filed a reply, see Pl.’s Reply,
Docket No. [11], and briefing on both Plaintiff’s motion to remand and his motion for a
preliminary injunction is now complete. Accordingly, Plaintiff’s motions are ripe for the Court’s
review.
II. LEGAL STANDARDS AND DISCUSSION
As Plaintiff has raised a jurisdictional challenge to this Court’s authority to decide his
motion for a preliminary injunction, the Court must first resolve the question of its jurisdiction
before it may consider Plaintiff’s request for injunctive relief. Accordingly, the Court turns first to
consider Plaintiff’s motion to remand before then turning to consider Plaintiff’s motion for a
preliminary injunction.
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A. Plaintiff’s Motion to Remand
As set forth in the Notice of Removal, Defendants assert that removal is appropriate
pursuant to 28 U.S.C. §§ 1441(b) and 1442(a)(1). See Notice of Removal, Docket No. [1].
Section 1441(b) provides that “[a]ny civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the
United States shall be removable without regard to the citizenship or residence of the parties.”
Section 1442(a)(1) provides that a civil action is removable to the district court for the district
embracing the place where the action is pending if the suit is brought against “[t]he United States
or any agency thereof or any officer (or any person acting under that officer) of the United States
or of any agency thereof, sued in an official or individual capacity for any act under color of such
office or on account of any right, title or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of the revenue.”
As discussed above, Plaintiff has named the United States and several officers thereof as
Defendants, including Attorney General Holder, Assistant United States Attorney Eggers, United
States Attorney Kirwin, Department of Justice Trial Attorney Watling, the Clerk of the Court for
the Northern District of Florida, and United States District Court Judge Rodgers. See generally
Compl. As such, the Court finds that removal is appropriate under section 1442(a)(1). In addition,
Plaintiff’s complaint purports to assert various violations of federal statutes — including the
Trading with the Enemy Act, RICO, and FOIA — and seeks to challenge his indictment in the
Northern District of Florida as a violation of, inter alia, “his fundamental rights secured to him
under the Constitution for the United States of America.” See id. Because the Court has original
federal question subject matter jurisdiction over such claims pursuant to 28 U.S.C. § 1331, the
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Court concludes that removal is proper under section 1441(b) as well. Plaintiff’s arguments to the
contrary are wholly without merit and require no discussion. Accordingly, the Court shall DENY
Plaintiff’s motion to remand this case back to the Superior Court for the District of Columbia.
B. Plaintiff’s Motion for a Preliminary Injunction
Plaintiff asks this Court to enjoin criminal proceedings currently ongoing in the United
States District Court for the Northern District of Florida, but has made no attempt whatsoever to
demonstrate that the four factors outlined above have been met. As it is Plaintiff’s burden to do
so, his request for a preliminary injunction fails for this reason alone. Regardless, the case law
makes clear that such extraordinary relief as is requested by Plaintiff is neither warranted nor
appropriate.
The standard for obtaining preliminary injunctive relief pursuant to Fed. R. Civ. P. 65 is
well established. A moving party must show: (1) a substantial likelihood of success on the merits;
(2) that it would suffer irreparable injury if the injunction were not granted; (3) that an injunction
would not substantially injure other interested parties; and (4) that the public interest would be
furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006). In applying this four-factored standard, district courts may employ a sliding
scale as to which a particularly strong showing in one area can compensate for weakness in
another. Id. (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.
Cir. 1995)). Thus, “[a]n injunction may be justified, for example, where there is a particularly
strong likelihood of success on the merits even if there is a relatively slight showing of irreparable
injury.” CityFed., 58 F.3d at 747. Notwithstanding the fluid nature of this familiar four-part
inquiry, “[i]t is particularly important for the [movant] to demonstrate a substantial likelihood of
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success on the merits.” Barton v. Dist. of Columbia, 131 F. Supp. 2d 236, 242 (D.D.C. 2001)
(citing Benten v. Kessler, 505 U.S. 1084, 1085 (1992)). If the movant fails to do so, “it would take
a very strong showing with respect to the other preliminary injunction factors to turn the tide in
plaintiff[‘s] favor.” Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 366 (D.C. Cir. 1999).
Both the United States Supreme Court and the Court of Appeals for the D.C. Circuit have also
emphasized that a plaintiff must show at least some likelihood of irreparable harm in the absence
of an injunction. See Winter v. Nat. Res. Def. Council, Inc., __ U.S. __ , 129 S. Ct. 365, 375
(2008) (holding that a plaintiff must “demonstrate that irreparable injury is likely in the absence of
an injunction,” and not a mere “possibility”) (emphasis in original); CityFed, 58 F.3d at 747
(holding that a plaintiff must demonstrate “‘at least some injury’ for a preliminary injunction to
issue . . . [because] ‘the basis of injunctive relief in federal courts has always been irreparable harm
. . . .’” (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)).
Applying these standards to the case at hand, it is clear that Plaintiff has not demonstrated
that he is entitled to emergency injunctive relief. As an initial matter, “[i]t is well-settled . . . that a
court will not act to restrain a criminal prosecution if the moving party has an adequate remedy at
law and will not suffer irreparable injury if denied equitable relief.” Miranda v. Gonzales, 173
Fed. Appx. 840 (D.C. Cir. 2006) (per curiam); see also Deaver v. Seymour, 822 F.2d 66, 69 (D.C.
Cir. 1987). “Congress has established a comprehensive set of rules governing federal criminal
prosecutions — the Federal Rules of Criminal Procedure,” and “defendants cannot, by bringing
ancillary equitable proceedings, circumvent federal criminal procedure.” Deaver, 822 F.2d at 71.
In this case, Plaintiff primarily seeks to challenge the validity of his indictment in the Northern
District of Florida, alleging that Defendants have “no authority to take actions against” him; that
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their prosecution of him for federal tax violations is “arbitrary, capricious, without foundation;”
and that he was seized “without a warrant thus depriving [Plaintiff] of his fundamental rights
secured to him under the Constitution [of] the United States of America.” See Compl. at p. 9; see
also Pl.’s Mot. for P.I. at 2-3. On the current record now before the Court, there appears to be no
reason why such arguments may not be asserted by Plaintiff in the pending criminal action in the
United States District Court for the Northern District of Florida. To the extent Plaintiff may do so,
he has an adequate remedy at law for any asserted violations of his constitutional rights and
therefore may not secure equitable relief in this Court. See Deaver, 822 F.2d at 69-71.
Furthermore, to the extent Plaintiff seeks injunctive relief and damages against Defendants
McCool and Judge Rodgers, he is unlikely to succeed as “[j]udges and clerks are absolutely
immune from lawsuits predicated on acts taken . . . in their judicial capacities.” Krug v. Stevens,
Civ. Act. No. 08-891, 2008 WL 2331313 (D.D.C. June 2, 2008), aff’d 309 Fed. Appx. 423 (D.C.
Cir. 2009); see also Sindram v. Suda, 986 F.2d 1459 (D.C. Cir. 1993) (per curiam). In addition,
while Plaintiff’s complaint purportedly asserts various statutory claims pursuant to, inter alia, the
Trading with the Enemy Act, RICO, and FOIA, he has not alleged any facts that would appear to
support such claims nor has he addressed those claims in his motion for emergency relief. See
generally Compl.; see also Pl.’s Mot. for P.I. Accordingly, the Court finds that Plaintiff has not
demonstrated a substantial likelihood of success on the merits.
Given Plaintiff’s failure to show that he is likely to succeed on the merits of his lawsuit, he
must make “a very strong showing with respect to the other preliminary injunction factors” in
order to justify issuance of a preliminary injunction. See Davenport, 166 F.3d at 366. This
Plaintiff has not done. Although Plaintiff claims that he “has been, and is currently being harmed,
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by actions of the Defendants who are directly involved in his property being taken from him, his
rights being denied, [and] his liberties being restrained,” such allegations are insufficient to show
the necessary likelihood of irreparable harm in the absence of an injunction. Cf. Younger v.
Harris, 401 U.S. 37, 46 (1971) (“Certain types of injury, in particular, the cost, anxiety, and
inconvenience of having to defend against a single [state] criminal prosecution, could not by
themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to
the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense
against a single criminal prosecution.”). Similarly, the Court finds that issuance of a preliminary
injunction would harm both the Government’s and the public’s interest in the proper
administration of federal tax laws. As such, the third and fourth factor further counsel against
granting Plaintiff’s motion for preliminary injunction. Accordingly, the Court finds that issuance
of a preliminary injunction to enjoin the ongoing criminal proceedings in the Northern District of
Florida is not appropriate, and Plaintiff’s “Motion Request for Emergency Injunction” is DENIED.
IV. CONCLUSION
For the reasons outlined above, Plaintiff’s Motion to Remand and his “Motion Request for
Emergency Injunction” are DENIED. An appropriate Order accompanies this Memorandum
Opinion.
Date: January 18, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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