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Caller v. United States Department of State

United States District Court, D. Columbia.

December 8, 2015

DAILY CALLER, Plaintiff,

          For DAILY CALLER, Plaintiff: Patrick Joseph Massari, CAUSE OF ACTION, Washington, DC.

         For UNITED STATES DEPARTMENT OF STATE, Defendant: Elisabeth Layton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.


         BERYL A. HOWELL, United States District Judge.

         Beginning in the spring of 2015, numerous print, television, and internet media outlets began aggressively investigating and reporting on former Secretary of State Hillary Clinton's use of a private email server during her time at the U.S. Department of State (" State Department" or " agency" ). The plaintiff, a 24-hour online news publication, submitted five requests under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, to the State Department seeking the release of records potentially related to its ongoing coverage of this story. Although the State Department has acknowledged receipt of these requests, and has agreed to process each request on an expedited basis, the agency has neither completed its collection and review of potentially responsive records nor produced more than a small number of records in response to the plaintiff's requests.

         Seeking to accelerate further the agency's processing of its outstanding requests, the plaintiff initiated this action on October 21, 2015. See Compl., ECF No. 1. Pending before the Court is the plaintiff's Motion for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65, seeking an order requiring the State Department to collect, review and produce all non-exempt documents responsive to each of its outstanding requests within the next twenty business days. Pl.'s Mot. Prelim. Injunc. (" Pl.'s Mot." ), ECF No. 3; see also Compl. at 11-12. For the reasons discussed below, the plaintiff's motion is denied.[1]

         I. BACKGROUND

         With public attention turning to the 2016 presidential election, and former Secretary of State Clinton's candidacy for the Democratic nomination, the State Department has since late 2014 received numerous FOIA requests seeking documents related to various aspects of Clinton's tenure at the agency. In particular, following initial reports of Clinton's use of a private email server in early March 2015, see Michael S. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules, N.Y. Times (Mar. 2, 2015), numerous individual reporters and publications filed FOIA requests seeking State Department records related to this arrangement, including emails that were in the possession of former Secretary Clinton and members of her staff, Order Denying Mot. Designation of Coordinating Judge at 1, In re: U.S. Dep't of State FOIA Litig. Regarding Emails of Certain Former Officials, No. 15-mc-1188 (D.D.C. Oct. 8, 2015), ECF No. 41. These requests, and the attendant challenges in responding fully and on a timely basis to each request, have in turn begat extensive litigation against the State Department, with some three dozen cases stemming from these requests pending before this Court as of early October 2015. Id.

         After the State Department's motion to designate a coordinating judge to oversee these cases was denied, id. at 2, the cases are proceeding separately and concurrently, resulting in various court orders requiring the agency to process and produce non-exempt documents responsive to many of the underlying requests. Most significantly, pursuant to an expansive request submitted by an investigative journalist in November 2014, the State Department is currently required to produce approximately 55,000 pages of responsive documents, on a rolling basis, by January 29, 2016. Scheduling Order, Leopold v. U.S. Dep't of State, No. 15-cv-123 (D.D.C. May 27, 2015) (the " Leopold Order" ), ECF No. 17. Compliance with this and other production schedules is consuming a substantial portion of the agency's FOIA-processing resources, with roughly half of the agency's FOIA-related staff resources dedicated exclusively to processing Clinton email requests and the agency currently detailing and training additional analysts to assist with this work. Decl. John F. Hackett (Nov. 19, 2015) (" Hackett Decl." ) ¶ ¶ 5-6, 15, ECF No. 14-1.

         Among this flood of Clinton-related activity are the five requests at issue here, which the plaintiff submitted to the agency between March 2015 and August 2015. The plaintiff's requests are summarized as follows:

■ FOIA Request F-2015-04623 (March 3, 2015), seeking all State Department processing notes stemming from six prior FOIA requests submitted by the plaintiff seeking information relating to Secretary Clinton's emails and those of her aides. Decl. Chuck Ross (" First Ross Decl." ) ¶ 6, ECF No. 3-2.
■ FOIA Request F-2015-04646 (March 5, 2015), seeking all communications, electronic or otherwise, sent to or from various senior State Department officials referring in any way to Secretary Clinton. Id. ¶ 11.
■ FOIA Request F-2015-04997 (March 11, 2015), seeking all separation statements signed by Secretary Clinton or three former aides. Id. ¶ 15.
■ FOIA Request F-2015-11536 (June 27, 2015), seeking all records handled by a State Department Undersecretary pertaining to Secretary Clinton's use of a personal email address and private server. Id. ¶ 19.
■ FOIA Request F-2015-12685 (Aug. 5, 2015), seeking all employment records related to a former State Department special information technology advisor, as well as any emails sent to or from this advisor or sent to or from the previously referenced former Undersecretary referring to this advisor. Id. ¶ 23.

         After acknowledging receipt of each of these requests, the State Department granted, on or before August 11, 2015, the plaintiff's further application for both expedited processing and a fee waiver as a member of the news media. Id. ¶ ¶ 6, 11, 15, 19; Sec. Decl. Chuck Ross (Nov. 24, 2015) (" Sec. Ross Decl." ) ¶ 19, ECF No. 17-1. While failing to provide a definite time limit for its processing of each of these requests, First Ross Decl. ¶ ¶ 8, 12, 16, 20, 25, the agency has notified the plaintiff that certain of the sought-after documents have been made publicly available on the agency's website in response to other outstanding FOIA requests, Hackett Decl. ¶ 12.

         To process the plaintiff's requests, the agency has assigned a designated FOIA analyst to coordinate the search for and review of potentially responsive records. Id. ¶ 15. As of November 19, 2015, the agency's Director of Information Programs and Services reports that this effort is ongoing, and the agency has yet to determine the total volume of potentially responsive records. Id. Further, because many of the records sought by the plaintiff may include sensitive national security and diplomatic material, as well as personally identifiable information of current and former State Department employees, the agency has indicated that any responsive documents will require additional evaluation by senior reviewers with specialized expertise and credentials. Id. ¶ 17-18. Although many of these senior reviewers are currently assigned to the agency's response to the Leopold Order, id. ¶ 18, a reviewer with the necessary credentials and expertise is expected to be available to assist in processing the plaintiff's requests in February or March 2016, id. ¶ 22.

         Nonetheless, not content with the current processing pace, and contending that the agency is under a strict duty to process fully all FOIA requests within twenty days of receipt, the plaintiff filed this action to hasten the release of all non-exempt agency records responsive to its various requests. See Pl.'s Mot. Specifically, the plaintiff requests a court order requiring the agency to: (1) expedite processing of each of the plaintiff's outstanding FOIA requests; [2] (2) make final determinations for each of those requests and produce all responsive documents within twenty business days; and (3) issue a Vaughn index to accompany each of these productions.[3] Id.


         " 'A [party] 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, 408 U.S.App.D.C. 291 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392, 396 U.S.App.D.C. 1 (D.C. Cir. 2011)). 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." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)).

         The D.C. Circuit has, in the past, followed the " sliding scale" approach to evaluating preliminary injunctions, where " a court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant [preliminary relief] if the movant has made a substantial case on the merits." Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843, 182 U.S.App.D.C. 220 (D.C. Cir. 1977). Thus, under the sliding scale approach, " [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." Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291-1292, 387 U.S.App.D.C. 205 (D.C. Cir. 2009).

         The viability of the sliding scale approach is questionable, however, in light of the Supreme Court's holding in Winter v. NRDC, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), that a court may not issue " a preliminary injunction based only on a possibility of irreparable harm [since] injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." See Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (noting that, after Winter, " the old sliding-scale approach to preliminary injunctions--under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa--is no longer controlling, or even viable" (internal quotations and citation omitted)); see also In re Navy Chaplaincy, 738 F.3d 425, 428, 407 U.S.App.D.C. 436 (D.C. Cir. 2013) (requiring proof that all four prongs of preliminary injunction standard are met before injunctive relief can be granted). Thus, the plaintiffs bear the burden of persuasion on all four preliminary injunction factors in order to secure such an " extraordinary remedy."

         Finally, where, as here, the plaintiff's requested injunction is " mandatory--that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act," judges on this Court have required the moving party to " meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction." See, e.g.,Elec. Privacy Info. Ctr. v. Dep't of Justice, 15 F.Supp.3d 32, 39 (D.D.C. 2014) (" EPIC II " ) (collecting cases); Columbia Hosp. for Women Found., Inc. ...

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