MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
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.
II.
LEGAL STANDARD
“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.
III.
DISCUSSION
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 ...