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Baker v. Consumer Financial Protection Bureau

United States District Court, District of Columbia

November 1, 2018




         This is a Freedom of Information Act (“FOIA”) action, in which Plaintiff Joshua Baker seeks records from the Consumer Financial Protection Bureau (“CFPB”) regarding its investigation of Zillow Group, Inc. (“Zillow”). Before the Court is Plaintiff's [2] Motion for a Preliminary Injunction, which is opposed. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record for purposes of this motion, the Court DENIES Plaintiff's [2] Motion. The Court concludes that Plaintiff has not made the requisite showing for a preliminary injunction.

         I. BACKGROUND

         Plaintiff is an attorney employed by The Rosen Law Firm, P.A. (“Rosen”). Pl.'s Mot., ECF No. 2, 1. Plaintiff submitted a FOIA request on behalf of Rosen in connection with a securities class action in which Rosen is lead counsel. Id. In the class action, Rosen represents purchasers of Zillow securities, alleging violations of the Securities Exchange Act of 1934. Id. at 2. On October 2, 2018, the judge presiding over the class action dismissed the amended complaint “without prejudice and with leave to amend.” Compl., ECF No. 1, ¶ 17. The judge directed plaintiffs to file a second amended complaint by November 16, 2018. Id. Plaintiff contends that the documents he seeks in his FOIA request are critical to supporting the allegations in the second amended complaint, as Defendant has previously investigated Zillow for misconduct similar to that alleged in the class action but did not take any enforcement action. Id. at ¶¶ 16-18.

         On July 26, 2018, Plaintiff filed a FOIA request with Defendant seeking access to the following:

Any documents and/or correspondence related to the Civil Investigative Demand issued in 2015 by the Consumer Financial Protection Bureau to Zillow Group, Inc., including any documents and/or correspondence pertaining to the subsequent investigation.

Exhibit 1, ECF No. 2-2, 3. In response to Plaintiff's FOIA request, on July 24, 2018, Defendant sent an email attaching a letter dated June 27, 2018 acknowledging receipt of Plaintiff's request and assigning the request a case number. Exhibit 2, ECF No. 2-3, 2-3. That same day, Defendant sent another email containing a fee estimate for plaintiff's request. Exhibit 3, ECF No. 2-4, 3-4. Defendant estimated that the fee to search for documents responsive to Plaintiff's FOIA request would be $35, 160 and required Plaintiff to make an advance payment before Defendant would start to process Plaintiff's request. Id. On July 25, 2018, Rosen sent a check to Defendant for the full amount. Weeks later, Plaintiff noticed that the check had never been cashed and contacted Defendant by email to inquire. Pl.'s Mot., ECF No. 2, 4. On August 17, 2018, Plaintiff contacted by telephone the FOIA analyst assigned to his case, who explained that Defendant had not cashed the check because it was likely that Defendant would withhold or redact the vast majority of documents requested. Prior to cashing the check, Defendant wanted to give Plaintiff an opportunity to narrow his request. Declaration of Joshua Baker, ECF No. 2-1, ¶ 6. On October 2, 2018, Plaintiff emailed Defendant confirming that Plaintiff still wanted to proceed with the unaltered request. Exhibit 4, ECF No. 2-5, 2. On October 4, 2018, Plaintiff again spoke with the FOIA analyst assigned to his case who informed Plaintiff that his request would fall into the “complex” que and that there were approximately twenty “complex” requests ahead of Plaintiff's, so it would likely take six to nine months to process Plaintiff's request. Declaration of Joshua Baker, ECF No. 2-1, ¶ 8.

         On October 18, 2018, Plaintiff filed a Complaint in this Court, and on October 19, 2018, Plaintiff filed his Motion for a Preliminary Injunction. Compl., ECF No. 1; Pl.'s Mot., ECF No. 2. In his motion, Plaintiff argues that Defendant failed to comply with FOIA's mandated time frame of twenty working days to respond to a FOIA request. See 5 U.S.C. § 552(a)(6)(A)(i). Accordingly, Plaintiff asks this Court to issue a preliminary injunction ordering Defendant to release all responsive records by a date certain. Initially, Plaintiff requested that the Court order Defendant to release all responsive records by November 2, 2018. Given that briefing on Plaintiff's motion completed on October 30, 2018, this date for release would allow only two days for the Court to consider the matter and issue a decision and for Defendant to process over 630, 000 potentially responsive documents. And, as Defendant previously informed Plaintiff, processing these records will be a substantial task as many of the documents will need to be withheld or redacted “given their nature as confidential business information produced to a law enforcement agency as part of an investigation and internal, predecisional, deliberative work product by attorneys and others engaged in a law enforcement investigation.” Declaration of Raynell Lazier, ECF No. 5-1, ¶ 16. Accordingly, Plaintiff has reconsidered his initial deadline. If the Court finds Plaintiff's initial deadline infeasible, Plaintiff instead asks the Court to order Defendant to produce all responsive documents within ninety days, with some productions occurring after thirty days and some occurring after sixty days. See Pl.'s Reply, ECF No. 7, 2.


         “A 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. Nat. 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 [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 (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 Court notes that where, as here, the preliminary injunction would be a mandatory one, meaning that its terms would alter rather than preserve the status quo, the Court's power to issue a preliminary injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969).

         “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. But, 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 D.C. Circuit court have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing 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 393.


         The Court begins by noting that Plaintiff did not request expedited processing of his FOIA request. Def.'s Opp'n, ECF No. 5, 1. Seeking expedited processing is the normal administrative procedure for requesting and obtaining prioritized resolution of a FOIA request. See Declaration of Raynell Lazier, ECF No. 5-1, ¶ 7. If such processing is not sought, Defendant considers the complexity of the request and other factors in deciding where in the processing queue the request falls. Id. In this case, having failed to request expedited processing administratively, Plaintiff asks this Court to help him jump from his position as approximately twentieth in the “complex” que and have his request processed before those of all of the other individuals waiting, including those approved for expedited processing. But even ignoring Plaintiff's failure to request expedited processing, the Court concludes that Plaintiff has failed to establish a likelihood of success on the merits, to show irreparable harm, or to demonstrate that the balance of hardships and the public interest weigh in favor of injunctive relief. For these reasons, Plaintiff's Motion is DENIED.

         A. Plaintiff Fails to Establish a Likelihood of ...

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