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Brown v. Pennsylvania Higher Education Agency

United States District Court, District of Columbia

May 14, 2019

Shuntay Antonio Brown, Plaintiff,
Pennsylvania Higher Education Agency et al., Defendants.


          Colleen Kollar-Kotelly, United States District Judge.

         Pending before the Court in this removed action is plaintiff's motion for a temporary restraining order and preliminary injunction (“TRO/PI motion”) [Dkt. # 8]. Both Trans Union, LLC, and Experian Information Solutions, Inc., the removing defendants, filed timely responses to the motion [Dkt. ## 12, 15]. Plaintiff, appearing pro se, has filed a combined “Reply to Opposition & Request for Court Relief Regarding the Attached Subpoena of HUD & FTC . . . ” [Dkt. # 20], which goes well beyond the scope of the instant motion. For the reasons explained below, plaintiff's TRO/PI motion will be denied.


         Temporary restraining orders and preliminary injunctions are extraordinary remedies. A temporary restraining order can be granted without written or oral notice to the adverse party only if:

specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.

Fed. R. Civ. P. 65(b)(1). “Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.” Fed.R.Civ.P. 65(d)(1).

         Preliminary injunctive relief 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)). The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established. See Hall v. Johnson, 599 F.Supp.2d 1, 3 n.2 (D.D.C. 2009) (“The same standard applies to both temporary restraining orders and to preliminary injunctions.” citation omitted)). The movant “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 such relief, “‘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.”[1] Id. at 1291-92.

         Both the United States Supreme Court and the D.C. Circuit have emphasized that a movant must show at least some likelihood of irreparable harm in the absence of an injunction. See Winter, 555 U.S. at 22 (holding that a plaintiff must “demonstrate that irreparable injury is likely in the absence of an injunction, ” and not a mere “possibility”); CityFed Fin. Corp. v. Off. of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (holding that a plaintiff must demonstrate “‘at least some injury' for a preliminary injunction to issue . . . [because] ‘the basis of injunctive relief in federal courts has always been irreparable harm . . . '”) (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)). “Further, the movant must show that the alleged harm will directly result from the action which [he] seeks to enjoin.” Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985). This is because a preliminary injunction “ordinarily is sought to preserve the status quo pending the resolution of the underlying litigation . . . . a preliminary injunction that would change the status quo is an even more extraordinary remedy.” Abdullah v. Bush, 945 F.Supp.2d 64, 67 (D.D.C. 2013), aff'd sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) (citations omitted).


         Plaintiff's TRO/PI motion is difficult to follow but concerns the defendant credit reporting entities - Trans Union, Experian, and Equifax -- and their duty under the Fair Credit Reporting Act (“FCRA”) “to report accurate payment of accounts.”[2] Mot. at 1. Plaintiff alleges that (1) Trans Union has provided inaccurate “rent history and credit history”; (2) Equifax has inaccurately reported that his “medical bills [are] in collection . . . and are refusing to conduct a reinvestigation” based on his disputes; and (3) Experian has “deleted all of [his] credit history with Pennsylvania Higher Education Assistance Agency after payment from the United States Department of Education.”[3] Mot. at 2. Allegedly, plaintiff has had difficulty obtaining Section 8 housing due to the negative credit reports. See id.

         Plaintiff argues generally that he is likely to prevail on his claim of negligence. See Mot. at 4-5. Even if true, plaintiff would be entitled only to “an amount equal to the sum of . . . any actual damages sustained by the consumer as a result of the failure” and litigation costs. 15 U.S.C. § 1681o. Nothing in the text of the FCRA “allows private litigants to maintain a claim for injunctive relief, ” Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 268 (5th Cir. 2000), and “courts that have considered [the] issue have overwhelmingly concluded that the FCRA precludes private litigants from seeking equitable relief, ” Owner-Operator Indep. Driver Ass'n, Inc. v. Usis Commercial Servs., Inc., 410 F.Supp.2d 1005, 1007 (D. Colo. 2005); see Poulson v. Trans Union, LLC, 370 F.Supp.2d 592, 593 (E.D. Tex. 2005) (Under the FCRA, “[p]rivate litigants are limited to the remedies laid out in [in the statute, which] include . . . actual, and punitive damages, as well as attorney's fees.”) (citing 15 U.S.C. §§ 1681n, 1681o)). For this reason, plaintiff is unlikely to succeed on his claim for injunctive relief, [4] and it “is [ ] well settled that economic loss does not, in and of itself, constitute irreparable harm.” Sataki v. Broadcasting Bd. of Governors, 733 F.Supp.2d 22, 46 (D.D.C. 2010) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (alteration in original)).

         Plaintiff's mere conjecture on the critical factors of likely success and irreparable harm “alone is sufficient” to deny his request for a preliminary injunction. CityFed Fin. Corp., 58 F.3d at 747. As Trans Union notes, moreover, plaintiff “admits” that no public interest is at stake, Trans Union's Opp'n at 7 (quoting Pl.'s Mot. at 5) (“[t]his is not a case that impacts the public; only the parties involved have an interest in the outcome”), and Trans Union has made a convincing uncontested argument why “the balance of equities” tilts in its favor, id. at 7-8. As for Experian, ...

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