Konarski v. Donovan

• Citation: 763 F.Supp.2d 128
• Decision Date: 07 February 2011
• Docket Number: Civil Action No. 10–1733 (RMU).
• Parties: Frank KONARSKI et al., Petitioners,v.Shaun DONOVAN et al., Respondents.
• Court: United States District Courts. United States District Court (Columbia)

763 F.Supp.2d 128

Frank KONARSKI et al., Petitioners,

v.Shaun DONOVAN et al., Respondents.

Civil Action No. 10–1733 (RMU).

United States District Court, District of Columbia.

Feb. 7, 2011.

Frank Konarski, Tucson, AZ, pro se.Jeremy S. Simon, U.S. Attorney's Office, Washington, DC, for Respondents.

MEMORANDUM OPINION

Denying the Petitioners' Motion for a Preliminary Injunction; Granting the Petitioners' Motion to Join a Party ¹; Denying the Petitioners' Motions for Recusal ²; Denying the Petitioners' Motion for Relief Upon Reconsideration ³; Denying the Petitioners' Motion to Disqualify Respondents' Counsel; Denying the Petitioners' Motion to Strike the Motion to Dismiss; Denying the Petitioners' Motions

for Televised Proceedings ⁴; Denying the Petitioners' Motion for Immediate Copies of the Transcript and Videotape; Denying the Petitioners' Motion for Expedited Mediation

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

The petitioners are the owners of an apartment building who allege that the respondents have unlawfully obstructed their ability to rent to tenants receiving federal housing assistance. On October 15, 2010, the court held a hearing on the petitioners' motion for a temporary restraining order. After hearing argument from both sides, the court denied the petitioners' motion. This matter now comes before the court on a multitude of motions filed by the petitioners following the denial of their motion. For the reasons discussed below, with the exception of the petitioners' motion to join a party, the court denies the petitioners' motions.

II. FACTUAL & PROCEDURAL BACKGROUND

The petitioners are the owners of an apartment building in Tucson, Arizona (“the City”). Pet. ¶ 3. They allege that certain City officials working under the authority of the Department of Housing and Urban Development (“HUD”) have conspired to keep them from renting to tenants receiving federal assistance through the United States Housing Act of 1937, 42 U.S.C. § 1437f (“Section 8”). See generally id.

The respondents aver that in 2001, the City advised petitioner Frank Konarski ⁵ that it would no longer approve new Section 8 housing contracts with him due to “numerous complaints expressed by the tenants and the continuing problems imposed on [its] staff.” Respts' Mot. to Dismiss & Opp'n to Pet'rs' Mot. for a TRO (“Respts' 1st Opp'n”) at 3, Ex. 1. Since that time, the petitioners have engaged in near constant—though unsuccessful—litigation with the City. See Respts' 1st Opp'n, Exs. 1–3; see generally Konarski v. Valfire, 67 Fed.Appx. 458 (9th Cir.2003); Konarski v. City of Tucson, 289 Fed.Appx. 242 (9th Cir.2008). Nevertheless, the petitioners continued to submit Section 8 contracts to the City and, on May 25, 2010, the City approved two of these contracts. Pet. ¶ 20; Respts' 1st Opp'n at 4. Eight days later, the City sent a letter to the petitioners explaining that “[t]he two contracts for the above properties were improvidently signed and will not be processed.” Pet. ¶ 22; Respts' 1st Opp'n at 4.

On October 13, 2010, petitioner Frank Konarski filed a petition for a writ of mandamus against the Department of Housing and Urban Development (“HUD”) and HUD Secretary, Shaun Donovan,⁶ seeking an order compelling the respondents to intercede in his Section 8 dealings with the City and alleging that that a “select-few highly corrupt city administrative officials under Respondent HUD's control” harbor a “personal vendetta” against them. Pet. ¶ 7. As part of this vendetta, the petitioners contend that the officials have undermined the free choice given to Section 8 tenants by steering potential and current tenants living in the petitioners' building elsewhere. Id. ¶¶ 10–39. The petitioners ask the court to order the respondents to “rid the Section 8 Housing/Housing Choice Voucher program of the personal vendetta of its city administrative officials.” Id. ¶ B.⁷

Contemporaneously with the petition, petitioner Frank Konarski filed a motion for a temporary restraining order and a preliminary injunction. See generally Pet'rs' Mot. for a TRO & Prelim. Inj. (“Pet'rs' TRO Mot.”). The respondents filed a combined motion to dismiss and opposition to the petitioners' motion. See generally Respts' 1st Opp'n.

On October 15, 2010, the court held a hearing on the petitioners' motion for a temporary restraining order, at the conclusion of which the court denied the petitioners' request for injunctive relief. See generally Hr'g Tr. Subsequently, the petitioners have filed a myriad of motions seeking a variety of relief. See Pet'rs' Expedited Mot. for Immediate Change of Judge (“Pet'rs' 1st Recusal Mot.”) & to Vacate the 10/15/10 Ruling (“Pet'rs' Mot for Relief Upon Recons.”); Pet'rs' Emergency Mot. to Assign a New Judge (“Pet'rs' 2d Recusal Mot.”); Pet'rs' Mot. for a Neutral Judge (“Pet'rs' 3d Recusal Mot.”); Pet'rs' Mot. to Assign a New Attorney for HUD (“Pet'rs' Mot. to Disqualify Respts' Counsel”); Pet'rs' Mot. to Strike Mot. to Dismiss (“Pet'rs' Mot. to Strike”); Pet'rs' Mot. for Televised Proceedings (“Pet'rs' 1st Mot. for Recorded Hearings”); Pet'rs' Mot. for the Videotaping of All Future Court Hearings (“Pet'rs' 2d Mot. for Recorded Hearings”); Pl.s' Mot for the Tr. & Videotape (“Pet'rs' Mot. for Tr.”); Pet'rs' Mot. for Expedited Mediation (“Pet'rs' Mot. to Compel Mediation”).

The respondents filed a consolidated response, see generally Respts' Omnibus Response to Pet'rs' Mots. (“Respts' 2d Opp'n”), and the petitioners filed a consolidated reply, see generally Pet'rs' Reply in Support of Motions (“Pet'rs' Reply”). With those motions fully briefed, the court turns to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. The Court Denies the Petitioners' Motion for a Preliminary Injunction

1. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates “[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.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218–19, 171 L.Ed.2d 1 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review.” Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999) (internal quotation omitted).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The Supreme Court has observed “that 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.” Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and “tailored to remedy the harm shown.” Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990).

A. The Petitioners Have Failed to Demonstrate a Likelihood of Succeeding on the Merits of Their Claims

The petitioners have moved for a preliminary injunction requiring the respondents “to have its city administrative officials to comply with applicable polic[i]es, [the] federal code of regulations, and other program requirements—to take affirmative action grounded in statute and codes to immediately restrain the federal-code-defiant activities of its city administrative officials.” Pet'rs' TRO Mot. at 14. The respondents opposed the motion arguing that they are not parties to the contracts between the petitioners and the City and that the petitioners are not “entitled to an order compelling compliance with the broad statutory mandate that HUD affirmatively further the goals of fair housing.” Respts' Opp'n at 10–11.

The petitioners contend that a “select-few highly corrupt [Tucson] city administrative officials” are engaging in the “retaliatory administration of the Section 8 Housing [ ] Choice Voucher program,” Pet'rs' TRO Mot. at 7, and that HUD has the authority and duty to require that these officials comply with HUD regulations, id. at 9–10. Ultimately, the petitioners' seek a writ of mandamus compelling the respondents to intervene in the local administration of the Section 8 program in the City of Tucson. See generally Pet. The respondents maintain that the actions the petitioners want them to perform are purely discretionary, thus precluding mandamus relief, see Respts' Opp'n at 10; Hr'g Tr. at 17–20, and that the petitioners' claims otherwise fail on res judicata grounds, Respts' Opp'n at 14.

The Mandamus Act authorizes district courts to issue mandamus orders compelling federal officials to perform ministerial or non-discretionary duties. 28 U.S.C. § 1361. A writ of mandamus is “an extraordinary [remedy] ... to be utilized only under exceptional circumstances.” Haneke v. Sec'y of Health, Educ. & Welfare, 535 F.2d 1291, 1296 (D.C.Cir.1976). “The necessary prerequisites for this court to exercise its mandamus jurisdiction are that (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Swan v. Clinton, 100 F.3d 973, 977 n. 1 (D.C.Cir.1996) (internal quotations omitted). The plaintiff bears the “heavy burden” of showing that its right to issuance of the writ is “clear and...