Miller v. District of Columbia et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREEN MILLER, JR.,
Plaintiff,
v. Civil Action No. 06-1935 (JDB)
DISTRICT OF COLUMBIA, ET AL.,
Defendants.
MEMORANDUM OPINION
Plaintiff Green Miller, Jr. seeks a temporary restraining order ("TRO") and a permanent
injunction setting aside defendant District of Columbia's ("defendant" or "the District") sale of
two of his properties at a tax auction on July 12, 2006. For the reasons set forth below, the Court
will deny plaintiff's motion for a TRO and set a briefing schedule for defendant to file a motion to
dismiss.
BACKGROUND
The facts, which defendant does not dispute, are drawn from plaintiff's complaint and the
attachments thereto. Plaintiff owned a group of properties in the mid-1990's. As is relevant here,
he owned four properties located at (a) 1330 Belmont Street NW, (b) 1332 Belmont Street NW,
(c) 2560 University Place NW, and (d) 6920 Eighth Street NW. Plaintiff owed back taxes on all
four of these properties. He filed a bankruptcy petition in April of 1996. Although the filing of
that petition activated the automatic-stay provision of 11 U.S.C. § 362, the District notified
plaintiff of its intent to take possession of the Belmont Street properties. On September 20, 1996,
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the District filed suit in Superior Court to remove the cloud of title over those properties.
Unbeknownst to plaintiff, however, defendant had already taken title to 1330 and 1332 Belmont
through a pair of deeds issued by the mayor to the District's "Homestead Housing Preservation
Program" in August of 1996. The District's quiet-title suit was eventually dismissed when one of
Belmont's lien holders alerted the Superior Court to the automatic stay.
In September of 1997, the bankruptcy court issued an order confirming the reorganization
plan proposed by plaintiff. Article IV of the reorganization plan, entitled "Treatment of Claims,"
contemplated that plaintiff would retain ownership of the Belmont properties, but stated that if he
did not sell the properties within six months for an amount sufficient to pay the back taxes or
donate the properties to a non-profit group, then he would have to "abandon all claims to the lots
and consent to the relief sought in the D.C. Superior Court proceeding." A consent order filed
the following summer modified the original reorganization plan in some respects and also
clarified that plaintiff would "consent to judgment in any quiet title action" brought by defendant
if he was "unable to pay off the Real Property Taxes on said lots as provided in the Confirmed
Plan." Article VIII of the reorganization plan provided that the bankruptcy court would "retain
jurisdiction of this case to . . . determine any matters arising concerning the title to property of the
Debtor, or the sale thereof."
In August of 1998, one month after the reorganization plan was modified, plaintiff learned
that the District had taken title to the Belmont properties two years earlier. The District finally
returned the Belmont properties to plaintiff via a quit-claim deed in June of 2002. Meanwhile,
taxes on the two remaining properties, one on Eighth Street NW and another on University Place
NW, continued to accrue. Believing that the damages he had suffered over the two years during
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which defendant possessed the Belmont properties exceeded the taxes that he owed on the two
other properties for the 2005 year, plaintiff refused to pay those taxes. On July 12, 2006, the
District sold the Eighth Street and University Place properties at a tax sale.
In his pro se complaint, plaintiff seeks a TRO and a permanent injunction setting aside the
tax sales of the 6920 Eighth Street NW and 2560 University Place NW properties, an award of
rent for the six-year period of allegedly unlawful possession, compensatory damages for
emotional distress and mental anguish, punitive damages, and attorney's fees and costs.
"[B]ecause a permanent injunction is only appropriate after a trial on the merits," Int'l Ass'n of
Machinists and Aerospace Workers v. Nat'l Mediation Bd., 374 F. Supp. 2d 135, 137 n.1 (D.D.C.
2005), plaintiff's motion for a TRO is the only aspect of his suit ripe for resolution at this point.
DISCUSSION
The purpose of a TRO "is to preserve the status quo and prevent imminent harm pending
fuller briefing and a hearing on [a] request for injunctive relief." Bradshaw v. Veneman, 338 F.
Supp. 2d 139, 141 (D.D.C. 2004). In deciding whether to issue a TRO, the Court considers the
same four factors used to determine whether preliminary injunctive relief is appropriate. See
Morgan Stanley DW, Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001); see also Al-Fayed v.
Cent. Intelligence Agency, 254 F.3d 300, 303 n.2 (D.C. Cir. 2001). Under this inquiry, a movant
must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer
irreparable injury if the injunction is 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)
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(citations omitted). These familiar four factors should be balanced, and a "particularly strong"
showing in one area can justify an injunction "even if the showings in other areas are rather
weak." Id.; see also Guam Indus. Services, Inc. v. Rumsfeld, 383 F. Supp. 2d 112, 116 (D.D.C.
2005) (noting that the four factors "should be balanced on a sliding scale," and that "a party can
compensate for a lesser showing on one factor by making a very strong showing on another
factor"). Furthermore, "[p]robability of success is inversely proportional to the degree of
irreparable injury evidenced," such that injunctive relief "may be granted with either a high
probability of success and some injury, or vice versa." Cuomo v. U.S. Nuclear Reg. Comm'n,
772 F.2d 972, 974 (D.C. Cir.1985) (per curiam). The movant must, however, "demonstrate 'at
least some injury' for a preliminary injunction to issue." See Chaplaincy of Full Gospel
Churches, 454 F.3d at 297 (citation omitted).
Although he cites a similar (but not identical) standard from a D.C. Court of Appeals
case, plaintiff generally recognizes his burden. He maintains that he is likely to prevail on the
merits because defendant violated the terms of the court-approved reorganization plan by taking
the Belmont properties in 1996 and violated its own laws by selling the other two properties at
the tax sale in July of this year. Pl.'s Motion at 2-3. As for the second prong, he argues that real
estate is unique and that the loss of real property thus constitutes "irreparable harm." Id. at 3.
Plaintiff also maintains that the balance of harms weighs in his favor; indeed, he says that he is
willing to deposit into the Court registry the amount for which the properties were sold at the tax
sale to assure that the District will not be prejudiced by injunctive relief. Finally, he asserts that a
TRO would further the public interest by holding public officials accountable for violation of the
laws. Id.
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The Court recognizes that the D.C. Circuit has not definitively resolved whether the1
District of Columbia qualifies as a state for purposes of the federal Tax Injunction Act. See
Jenkins v. Washington Convention Center, 236 F.3d 6, 7 (D.C. Cir. 2001). In Jenkins, another
member of this court, whose ruling the court of appeals affirmed without reaching the issue,
conducted a thorough analysis of the question and concluded that the District did qualify as a
state under the statute. Jenkins v. Washington Convention Center, 59 F. Supp. 2d 78, 81-82
(D.D.C. 1999). The Court's analysis above with respect to the common language of the federal
and D.C. statutes eliminates the need to take a position on this unresolved question, at least at
this time.
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Even assuming that events transpired exactly as plaintiff describes them, he has failed to
demonstrate a likelihood of success on the merits of his suit that would support awarding the
extraordinary remedy of a TRO. First and most criticially, there are serious questions as to this
Court's jurisdiction over the case. As defendants point out, the federal Tax Injunction Act
("TIA"), 28 U.S.C. § 1341, bars district courts from enjoining, suspending, or restraining "the
assessment, levy or collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State." See Roswell v. LaSalle Nat'l Bank, 450 U.S.
503, 512 (1981). District of Columbia law supplies the required remedies in the form of a1
detailed statutory scheme (found at Chapter 13A of Title 47 of the D.C. Code) governing the
redemption and foreclosure of property. See D.C. Code §§ 47-1360 to -1385. Moreover, even if
the TIA does not apply, an analogous D.C. statute, D.C. Code § 47-3307, similarly prohibits
courts from enjoining "the assessment or collection by the District of Columbia or any of its
officers, agents, or employees of any tax." Federal courts, including the Seventh Circuit in an
opinion by Judge Posner, have held that a tax sale "is a mode of tax collection," and consequently
that "an action to enjoin it, or declare it illegal, or rescind it . . . would be barred by the [TIA]."
Wright v. Pappas, 256 F.3d 635, 637 (7th Cir. 2001); see also, e.g., Bouchard v. Clinton County,
Civ. A. No. 06-418, 2006 U.S. Dist. LEXIS 22937, at *9-*19 (N.D.N.Y. April 25, 2006);
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The three other bases for this Court's jurisdiction invoked by plaintiff- - 28 U.S.C. § 158,2
D.C. Code § 47-847, and the previous orders of the bankruptcy court, see Compl. at 3 - - are
similarly unavailing. The first, 28 U.S.C. § 158, grants district courts appellate jurisdiction over
challenges to decisions of bankruptcy courts, while the second establishes only that a cause of
action may lie under District of Columbia law. As for the third, Article VIII of the reorganization
plan approved by the bankruptcy court states that that court would "retain jurisdiction of this case
to . . . determine any matters arising concerning the title to property of the Debtor, or sale
thereof." Plaintiff's present action appears to be one that concerns "the title to property of the
Debtor, or the sale thereof," and would accordingly fall within the jurisdiction of the bankruptcy
court, rather than this Court.
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Deshazo v. Baldwin County, Civ. A. No. 06-0174, 2006 U.S. Dist. LEXIS 51118, at *9-*10 (S.D.
Ala. July 25, 2006). This conclusion, which rests on the rationale that a tax sale constitutes a
"mode of tax collection," Wright, 256 F.3d at 637 (emphasis added), applies with equal force to
the local statute, since that provision also employs the term "collection." See D.C. Code § 47-
3307 ("No suit shall be filed to enjoin the assessment or collection by the District of Columbia or
any of its officers, agents, or employees of any tax."). Hence, the TIA and the analogous D.C.
statute (or both) likely deprive this Court of jurisdiction over plaintiff's suit. The distinct
possibility that this Court lacks jurisdiction greatly lessens, if not altogether eliminates, plaintiff's
likelihood of success on the merits of his claims in this Court.2
Plaintiff cannot compensate for his inability to demonstrate a likelihood of success on the
merits with a strong showing of irreparable harm, which "is the sine qua non of the preliminary
injunction inquiry." Trudeau v. Federal Trade Com'n, 384 F. Supp. 2d 281, 296-97 (D.D.C.
2005), aff'd, 456 F.3d 178 (D.C. Cir. 2006). Although it is true that real estate constitutes a
unique interest, courts still require movants to demonstrate specific, as opposed to speculative,
harm under the particular circumstances. E.g., Narragansett Indian Tribe v. Guilbert, 934 F.2d 4,
7 (1st Cir. 1991); Mitchell v. Century 21 Rustic Realty, 233 F. Supp. 2d 418, 431 (E.D.N.Y.
2002) ("[L]oss of real property does not cause irreparable harm per se[.]"). Moreover, the focus
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As alleged by plaintiff, the tax sale occurred on July 12, 2006, far less than six months3
ago.
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at the TRO stage is on whether the alleged harm is imminent. See Trudeau, 384 F. Supp. 2d at
297 ("To demonstrate that he would suffer irreparable harm if an injunction does not issue,
plaintiff must show that the harm he faces is imminent and certain, rather than remote and
speculative."). Here, plaintiff has failed to identify any concrete upcoming event that the Court
must enjoin in order to preserve the status quo. To the contrary, his complaint and motion are
backward-looking in nature, requesting that the Court essentially void tax sales that occurred
several months ago. Insofar as he seeks monetary damages for defendant's allegedly unlawful
occupation of the Belmont properties, plaintiff has an adequate remedy at law.
More importantly, as mentioned above, plaintiff also has a remedy under D.C. law for the
sale of the Eighth Street and University Place properties. Indeed, the very statute that plaintiff
cites, D.C. Code § 47-847, provides a six-month period after a tax sale for a party to "redeem[]"
the property by paying "all taxes or assessments due the District of Columbia upon said property,
and all legal penalties, interests and costs thereon, together with such other expenses and costs,
including costs of publication, as may have been incurred by the District." That provision is just3
one part of a detailed statutory scheme governing the District's handling of property tax
delinquencies, redemption, and foreclosure. Plaintiff does not explain why, if he has funds that
he is willing to deposit with the Court, he cannot avail himself of the procedures provided by
statute or, at a minimum, raise his objections as a defense in the feared future foreclosure action
by the purchasers of the two properties. See D.C. Code § 47-1370(b)(3), (d). Accordingly, the
Court concludes that plaintiff has failed to demonstrate that he will suffer imminent and
irreparable harm absent injunctive relief.
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Having determined that plaintiff's motion flounders at the critical first and second steps of
the inquiry, the Court need not, and will not, address the two remaining factors. See, e.g., Farris
v. Rice, - - F. Supp. 2d - - , 2006 U.S. Dist. LEXIS 68228, at *6 (D.D.C. Sept. 25, 2006) ("If a
party moving for injunctive relief fails to show irreparable injury, the court need not consider the
remaining factors for issuance of a preliminary injunction."); Coleman-Adebayo v. Leavitt, 326 F.
Supp. 2d 132, 143 (D.D.C. 2004) ("In the absence of a likelihood that plaintiff can prevail on the
merits of her . . . claim, the other factors relating to the availability of preliminary injunctive
relief . . . need not be addressed in detail."). At the same time, the Court's strong doubts on the
issue of jurisdiction do not amount to a definitive determination that jurisdiction is lacking; nor
has defendant sought dismissal for lack of subject matter jurisdiction at this point. The Court will
therefore provide an opportunity for defendant to seek dismissal of the complaint and for plaintiff
to respond to defendant's arguments. A briefing schedule is included in the order that
accompanies this Memorandum Opinion.
CONCLUSION
Because plaintiff has not identified any immediate harm that he faces, and because there
is substantial doubt as to whether this Court even has jurisdiction over this suit, plaintiff's motion
for a temporary restraining order is denied. A separate order has been posted on this date.
/s/ John D. Bates
JOHN D. BATES
United States District Judge
Dated: November 20, 2006
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