United States District Court, D. Columbia.
DAILY CALLER, Plaintiff: Patrick Joseph Massari, CAUSE OF
ACTION, Washington, DC.
UNITED STATES DEPARTMENT OF STATE, Defendant: Elisabeth
Layton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil
Division, Federal Programs Branch, Washington, DC.
A. HOWELL, United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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) 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. Id.
'A [party] seeking a preliminary injunction must
establish  that he is likely to succeed on the merits, 
that he is likely to suffer irreparable harm in the absence
of preliminary relief,  that the balance of equities tips
in his favor, and  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)).
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).
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."
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. ...