United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
a Freedom of Information Act (“FOIA”) action, in
which Plaintiffs Rene Morales and Estela Villa Linares seek
records from the U.S. Department of State (“DOS”)
and the U.S. Department of Homeland Security
(“DHS”) relating to Plaintiff Linares'
immigrant visa petition. Before the Court is Plaintiffs'
 Emergency Motion for an Order for Defendants to
Immediately Process their FOIA Request. Upon consideration of
the pleadings,  the relevant legal authorities, and the
record for purposes of this motion, the Court DENIES
Plaintiffs'  Emergency Motion.
allege that they are married but are living apart from each
other due to Plaintiff Linares' inability to obtain a
visa to enter the United States from Mexico. Verified Compl.
for Declaratory and Injunctive Relief, ECF No. 1, at
¶¶ 4-5. In 2010, Plaintiff Linares applied for but
was denied an immigrant visa. Id. at ¶ 11.
Plaintiffs allege that on June 25, 2014, their counsel sent a
FOIA request to DHS, seeking records regarding Plaintiff
Linares' visa application. Id. at ¶ 14. DHS
responded that it did not possess the documents Plaintiffs
requested, and suggested Plaintiffs direct their request to
DOS. Id. at ¶ 15. Plaintiffs' counsel
allegedly did so on September 17, 2014, and later perfected
that request with a Certification of Identity on December 3,
2014. Id. at ¶¶ 16-18. DOS subsequently
acknowledged receipt of the request on December 9, 2014.
Id. at ¶ 19. On May 20, 2015, Plaintiffs'
counsel contacted DOS about the request, and DOS responded
that the targeted completion date for Plaintiffs' request
was December 2015. Id. at ¶ 21. When
Plaintiffs' counsel contacted DOS again in June, 2015,
the targeted completion date had been extended to December
2016. Id. at ¶ 22. Having not yet received a
response to their FOIA request from DOS, Plaintiffs filed
this Complaint on June 27, 2016. Id. at ¶ 23.
Plaintiffs allege a violation of FOIA, and also appear to
allege that the underlying denial of Plaintiff Linares'
visa application was unlawful. Id. at ¶¶
with filing their Complaint, Plaintiffs filed a brief
“Emergency Motion for an Order for Defendants to
Immediately Process FOIA Request.” Defendants interpret
Plaintiffs' Motion as one for a preliminary injunction,
and Plaintiffs do not dispute this characterization.
Plaintiffs ask the Court to order Defendants to immediately
search for any and all records responsive to their FOIA
request, demonstrate that they employed methods reasonably
likely to lead to the discovery of responsive records, and
produce any and all responsive records, along with a
Vaughn index, within 20 days. Pls.' Mot. at 2.
In support of their Motion, Plaintiffs incorporated by
reference their Complaint, and stated that Plaintiff Linares
had been “unable to enter the United States for nearly
7 years due to a denial of her visa.” Id.
service had been completed, Defendants sought, and Plaintiffs
consented to, several extensions on Defendants' deadlines
to respond to Plaintiffs' Motion and Complaint. ECF Nos.
14-17. The Court granted these Motions because the parties
represented that they were seeking an informal resolution of
this case. As of September 28, 2016, Defendants represented
that they are still in the process of locating and processing
documents potentially responsive to Plaintiffs' request.
See, e.g., ECF No. 17 at 2. On October 13, 2016,
however, Defendants filed a document entitled
“Defendants' Memorandum in Opposition to
Plaintiffs' Motion for Preliminary Injunction and Partial
Motion to Dismiss.” Defs.' Opp'n. Plaintiffs'
Emergency Motion has now been fully briefed and is ripe for
preliminary injunction is ‘an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 22 (2008)); see also Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (“[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.” (emphasis in
original; quotation marks omitted)). “A plaintiff
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 (D.C. Cir. 2014)
(quoting Sherley, 644 F.3d at 392 (quoting
Winter, 555 U.S. at 20) (alteration in original;
quotation marks omitted)). “‘When seeking a
preliminary injunction, the movant has the burden to show
that all four factors, taken together, weigh in favor of the
injunction.'” Abdullah v. Obama, 753 F.3d
193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension
Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir.
2009)). “The four factors have typically been evaluated
on a ‘sliding scale.'” Davis, 571
F.3d at 1291 (citation omitted). Under this sliding-scale
framework, “[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.”
Id. at 1291-92.
Court notes that it is not clear whether this Circuit's
sliding-scale approach to assessing the four preliminary
injunction factors survives the Supreme Court's decision
in Winter. See Save Jobs USA v. U.S. Dep't
of Homeland Sec., 105 F.Supp.3d 108, 112 (D.D.C. 2015).
Several judges on the United States Court of Appeals for the
D.C. Circuit have “read Winter at least to
suggest if not to hold ‘that a likelihood of success is
an independent, freestanding requirement for a preliminary
injunction.'” Sherley, 644 F.3d at 393
(quoting Davis, 571 F.3d at 1296 (concurring
opinion)). However, the Court of Appeals has yet to hold
definitively that Winter has displaced the
sliding-scale analysis. See id.; see also Save
Jobs USA, 105 F.Supp.3d at 112. In any event, this Court
need not resolve the viability of the sliding-scale approach
today as the Court determines that “a preliminary
injunction is not appropriate even under the less demanding
sliding-scale analysis.” Sherley, 644 F.3d at
Court begins by noting that Plaintiffs did not request
expedited processing of their FOIA request. As Defendants
explain, Defs.' Opp'n at 7-8, seeking expedited
processing is the proper administrative procedure for
requesting and obtaining prioritized resolution of a FOIA
request. If such processing is not sought, a FOIA request
joins the same “first-in, first-out” queue as all
other FOIA requests an agency receives. Id. at 7. In
this case, having failed to request such expedited processing
administratively, Plaintiffs ask this Court to help them jump
that queue and have their request processed before those of
all of the other individuals waiting. Additionally,
Plaintiffs make this ill-fated request in a Motion that fails
to address any of the factors Plaintiffs must establish to
warrant such preliminary injunctive relief. For these
reasons, Plaintiffs' Motion will be denied.
Plaintiffs Fail to Establish a Likelihood of Success on the
Plaintiffs have not established any likelihood of success on
the merits of their claims. Defendants assert in their
Opposition that the documents requested by Plaintiffs are
protected from disclosure under FOIA because they come from
the file of a consular official. The Court makes no
determination as to the merits of that assertion at this
time. For the purposes of this Emergency Motion, it is
sufficient to say that Plaintiffs' sole argument with
regard to their likelihood of success is that they are unable
to challenge this assertion because Defendants have not yet
provided Plaintiffs with a Vaughn index. But it is
not Defendants' burden at this preliminary stage
to show that the documents are exempt-it is
Plaintiffs' burden to demonstrate that they are
likely to succeed on the merits of their claims. Plaintiffs
have offered the Court nothing that would satisfy that
burden. Moreover, to the extent Plaintiffs are claiming that
they were wrongfully denied expedited processing of their
FOIA request, that claim fails for the obvious reason that
Plaintiffs concede they did not request expedited processing.
Plaintiffs Fail to Show ...