UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RENE MORALES, et al.,
Plaintiffs
v. Civil Action No. 16-1333 (CKK)
SECRETARY, U.S. DEPARTMENT OF
STATE, et al.,
Defendants
MEMORANDUM OPINION
(October 27, 2016)
This is 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’ [2] Emergency Motion for an Order for Defendants to
Immediately Process their FOIA Request. Upon consideration of the pleadings, 1 the relevant
legal authorities, and the record for purposes of this motion, the Court DENIES Plaintiffs’ [2]
Emergency Motion.
I. BACKGROUND
Plaintiffs 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
1
The Court’s consideration has focused on the following documents:
• Pls.’ Emergency Mot. for an Order for Defs. to Immediately Process FOIA Request
(“Pl.’s Mot.”), ECF No. 2;
• Defs.’ Memo. in Opp’n to Pls.’ Mot. for Prelim. Inj. and Partial Mot. to Dismiss
(“Defs.’ Opp’n”), ECF No. 18;
• Pls.’ Reply to Defs.’ Memo. in Opp’n to Pls.’ Mot. for Prelim. Inj. and Response to
Defs.’ Partial Mot. to Dismiss (“Pls.’ Reply”), ECF No. 20.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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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 ¶¶ 29-30.
Simultaneously 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.
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After 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.” 2 Defs.’ Opp’n. Plaintiffs’ Emergency
Motion has now been fully briefed and is ripe for resolution.
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. 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 [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.”
2
The caption of Defendants’ Opposition indicates that it includes a “Partial Motion to Dismiss.”
Accordingly, by Minute Order on October 14, 2016, the Court set a briefing schedule for
Defendants’ Partial Motion to Dismiss. However, as Plaintiffs point out, the body of
Defendants’ Opposition does not, in fact, state any grounds upon which any part of Plaintiffs’
Complaint should be dismissed. Defendants’ [21] Motion for Partial Dismissal is accordingly
DENIED WITHOUT PREJUDICE and the remaining briefing deadline associated with that
Motion is VACATED.
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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.
The 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, 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 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
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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.
A. Plaintiffs Fail to Establish a Likelihood of Success on the Merits
First, 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.
B. Plaintiffs Fail to Show Irreparable Injury
Plaintiffs have also not made a sufficient showing that they will suffer irreparable injury
if an injunction is not issued. To show that a preliminary injunction is warranted, Plaintiffs must
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demonstrate that there is a likelihood of irreparable harm. See Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“A movant’s failure to show any
irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the
other three factors entering the calculus merit such relief.”). The Court of Appeals for the D.C.
Circuit “has set a high standard for irreparable injury.” Id. “First, the injury ‘must be both
certain and great; it must be actual and not theoretical.’” Id. (citation omitted). “Second, the
injury must be beyond remediation.” Id.
Here, Plaintiffs argue that they will suffer irreparable harm in the absence of injunctive
relief because they will be denied the opportunity to live together as a married couple. But by
Plaintiffs’ own calculation, they have already been suffering this injury for approximately seven
years. Moreover, there is no clear causal connection between Plaintiffs obtaining Linares’
immigration records and Linares being allowed to enter the United States. Plaintiffs may be
arguing that once they have Linares’ papers, they could mount an effective challenge to the
decision to deny her a visa, but they fall far short of demonstrating that that this outcome is
“certain,” as opposed to “theoretical.” Chaplaincy, 454 F.3d at 297. Moreover, as Plaintiffs
concede, they did not seek expedited processing of their FOIA request from the agencies at issue.
Plaintiffs’ characterization of their request in this case as an “emergency” is accordingly placed
in doubt. Finally, being denied immediate access to Plaintiff Linares’ records is not an
irreparable harm. When Defendants have finished processing Plaintiffs’ request, Plaintiffs will
have the opportunity to exhaust their administrative remedies and then file motions in this Court
challenging the adequacy of Defendants’ responses, if necessary.
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C. Public Interest and the Balance of Hardships
Finally, the Court finds that Plaintiffs have not shown that the public interest or the
balance of hardships weigh in favor of granting injunctive relief. “These factors merge when the
Government is the opposing party.” FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C.
2015) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). As Plaintiffs state, “[t]he basic
purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). In this case, the
Court does not find that granting an injunction would help to “ensure an informed citizenry,” id.,
in any significant way—Plaintiffs are in effect asking that the Government expend resources to
quickly process their personal records for personal reasons, before processing the records of
other requesters. Granting the type of request made by Plaintiffs would harm others waiting for
their FOIA requests to be processed, and would erode the proper functioning of the FOIA
system. The Court finds persuasive Defendants’ concern that if the Court were to grant
Plaintiffs’ “Emergency Motion,” it would undercut the FOIA process by incentivizing others to
bypass the administrative scheme in place for obtaining expedited processing by filing
“emergency” motions with the Court. The Court will not sanction this type of end-run of the
administrative process.
IV. CONCLUSION
For the foregoing reasons Plaintiffs’ [2] Emergency Motion is DENIED. An appropriate
Order accompanies this Memorandum Opinion.
Dated: October 27, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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