                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
SAI,                                      )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                       Civil Action No. 14-0403 (ESH)
                                          )
TRANSPORTATION SECURITY                   )
ADMINISTRATION,                           )
                                          )
      Defendant.                          )
_________________________________________ )


                                    MEMORANDUM OPINION

        Plaintiff Sai, proceeding pro se, brings this action against the U.S. Transportation

Security Administration (“TSA”) pursuant to the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, and Privacy Act (“PA”), 5 U.S.C. § 552a. Before the Court is plaintiff’s motion

for a preliminary injunction mandating that TSA produce certain documents. (Mot., June 16,

2014 [Dkt. No. 20] at 1.) Upon consideration of plaintiff’s motion, defendant’s opposition,

plaintiff’s reply, and the entire record herein, the Court will deny plaintiff’s motion.

                                           BACKGROUND

        According to his initial complaint,1 plaintiff submitted four FOIA/PA requests to TSA

during February and March of 2013. (Compl., March 13, 2014 [Dkt. No. 5] ¶¶ 43, 54, 60, 64.)

Two of plaintiff’s FOIA/PA requests relate to his allegations that he was discriminated against

when proceeding through TSA security checkpoints on two separate occasions, the first at Logan

Airport in Boston (“BOS”), and the second at San Francisco International Airport (“SFO”). (Id.

        1
        After filing this motion for a preliminary injunction, plaintiff filed a motion to amend his
complaint to join additional parties and add new facts and claims, including claims relating to additional
FOIA/PA requests. (See Mot. for Leave to File Amended/Suppl. Compl., June 17, 2014 [Dkt. No. 21].)
¶¶ 44, 61.) These requests sought TSA records and communications (including surveillance

footage) pertaining to the incidents, as well as records of similar complaints against TSA. (Id. ¶¶

44, 61.) Plaintiff also filed separate Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,

and Rehabilitation Act, 29 U.S.C. § 701 et seq., grievances with TSA with regard to both alleged

incidents of discrimination. (Id. ¶¶ 43, 60.) The other two FOIA/PA requests identified in

plaintiff’s complaint, although related to TSA security checkpoint policies and procedures, do

not specifically pertain to TSA’s alleged discrimination against plaintiff at BOS and SFO. (Id.

¶¶ 54, 64.)

       By November 23, 2013, TSA had not provided plaintiff with formal responses to his

ADA and Rehabilitation Act grievances. On that day, plaintiff filed an additional FOIA/PA

request with the TSA FOIA division requesting

       *all* documents, records, statements, surveillance video, external and internal
       correspondence, etc., that are currently or have ever been in the TSA’s possession
       which relate to either of the two incidents I reported wherein the TSA violated my
       rights (BOS 2013-01-21 and SFO 2013-03-01).

(E-mail from Pl. to TSA Office of Disability Policy & Outreach et al., Nov. 23, 2013 [Dkt. No.

29-3] at 11.) 2 Plaintiff now moves the Court for a preliminary injunction “mandating that TSA

release to [plaintiff] all of its responses to his Rehabilitation Act grievances regarding TSA and

its agents’ violations of [plaintiff’s] rights at BOS and SFO airports.” (Mot. at 1.) Plaintiff’s

motion solely concerns his November 2013 FOIA/PA request. (Id. at 2.) The TSA opposes

plaintiff’s motion, arguing, inter alia, that the requested injunction impermissibly seeks relief
       2
          In a declaration supporting TSA’s opposition to plaintiff’s motion, Acting TSA FOIA Officer
Amanda Deplitch stated that the “TSA FOIA office does not have a record in its FOIA system of any
requests from Plaintiff in November 2013.” (Dep. of Amanda Deplitch, June 25, 2014 [Dkt. No. 27-1] ¶
5.) Plaintiff, however, as an attachment to another filing, provided evidence that he submitted the
disputed FOIA/PA request to the TSA FOIA office via e-mail on November 23, 2013. In his reply, he
also submitted evidence of the TSA FOIA office’s auto-response acknowledging his November 2013
FOIA/PA request. (E-mail from TSA FOIA Office to Pl., Nov. 23, 2013 [Dkt. No. 31-1].)
                                                  2
beyond the scope of the lawsuit and, in any event, that plaintiff’s has failed to meet the high bar

for a preliminary injunction. (Def.’s Opp’n to Mot. for Preliminary Injunction, June 25, 2014

[Dkt. No. 27] at 4-5.)

                                             ANALYSIS

I.        LEGAL STANDARD

          A preliminary injunction grants “intermediate relief of the same character as that which

may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). It

is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The

traditional preliminary injunction standard requires the district court to balance four familiar

factors

          (1) the movant’s showing of a substantial likelihood of success on the merits, (2)
          irreparable harm to the movant, (3) substantial harm to the non-movant, and (4)
          public interest.

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). “[T]he movant has

the burden to show that all four factors, taken together, weigh in favor of the injunction.” Id. at

1292. But if the movant fails to demonstrate a likelihood of success on the merits, the court

“need not consider the other factors.” Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t

of Housing and Urban Dev., 639 F.3d 1078, 1089 (D.C. Cir. 2011); accord Gilardi v. U.S. Dep’t

of Health & Human Servs., 733 F.3d 1208, 1211 (D.C. Cir. 2013). Likewise, “since ‘[t]he basis

of injunctive relief in the federal courts has always been irreparable harm,’” a court need not

balance the other factors if the movant makes no showing of irreparable harm. CityFed Fin.

Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (quoting Sampson v.

Murray, 415 U.S. 61, 88 (1974)).
                                                  3
       Moreover, where, as here, the injunction requested is a mandatory one that would require

defendant to undertake “some positive act,” the movant “must meet a higher standard than in the

ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious

damage will result from the denial of the injunction.” Columbia Hosp. for Women Found., Inc.

v. Bank of Tokyo–Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997) (quotation marks omitted);

accord Elec. Privacy Info. Ctr. v. Dep’t of Justice (EPIC), -- F. Supp. 2d. ---, 2014 WL 521544,

*5 (D.D.C. Feb. 11, 2014).

II.    THE COURT HAS JURISDICTION OVER PLAINTIFF’S MOTION

       Before proceeding to the merits, the Court must first assure itself that it has subject matter

jurisdiction over plaintiff’s motion. See NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.

2008). As a general rule, “a preliminary injunction may not issue when it is not of the same

character as that which may be granted finally and when it deals with matter outside the issues in

the underlying suit.” 11A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure: Civil

§ 2947 (3d ed.); see De Beers, 325 U.S. at 220 (a preliminary injunction is inappropriate when it

would provide relief that “in no circumstance” could be provided “in any final injunction that

may be entered”). This established rule is not based solely in equitable considerations of fairness

to the non-movant, but instead cuts to the subject matter jurisdiction of the court. Thus, just as a

court lacks jurisdiction over a motion for a preliminary injunction in the absence of a complaint,

see Fed. R. Civ. P. 3; Matter of Warrant Authorizing Interception of Oral Commc’ns within

Premises Known as 165 Atwells Ave., Providence, R. I., 673 F.2d 5, 7 (1st Cir. 1982), the court

also lacks jurisdiction over a motion when it “raises issues different from those presented in the

complaint.” Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002); accord Stewart v. U.S.



                                                 4
Immigration and Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir. 1985); Baldwin v. Bader,

2008 WL 564642, at *3 (D. Me. Feb. 28, 2008).

       TSA argues that plaintiff’s motion seeks relief beyond the scope of his initial complaint.

(Opp’n at 4-5.) While plaintiff’s complaint focuses primarily on his February and March 2013

FOIA/PA requests, plaintiff does specifically identify his November 2013 FOIA/PA request in

the complaint and further alleges TSA’s non-compliance with statutory deadlines as to that

request. (See Compl. ¶¶ 95-104.) Moreover, plaintiff seeks in his complaint broad relief –

including production of requested documents – as to “all” of his FOIA/PA requests. (See, e.g.,

id. ¶¶ 228-29, 232.) Construed liberally – as the court must – plaintiff’s complaint seeks a court

order requiring TSA to produce documents requested in his November 2013 FOIA/PA request.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” (internal quotation marks and citations

omitted)). Thus, the Court concludes that the preliminary injunctive relief plaintiff now seeks

falls within the scope of his initial complaint, and therefore the Court has subject matter

jurisdiction over this motion.

III.   PLAINTIFF IS NOT ENTITLED TO A PRELIMINARY INJUNCTION

       Plaintiff’s motion seeks fairly narrow relief. Plaintiff does not seek a preliminary

injunction requiring expedited release of all documents responsive to his numerous FOIA/PA

requests; nor does he even request an injunction requiring TSA’s expedited release of all

documents responsive to solely his November 2013 FOIA/PA request. (See Mot. at 1 n.2.)

Instead, he seeks only TSA’s “responses to [his] Rehabilitation Act grievances . . . regardless of

their state of ‘review’ or composition.” (Id. at 1.)
                                                  5
        Courts have on occasion issued preliminary injunctions requiring an agency’s expedited

release of responsive documents under FOIA. See Washington Post v. Dep’t of Homeland Sec.,

459 F. Supp. 2d 61, 66 (D.D.C. 2006) (collecting cases); Elec. Privacy Info. Ctr. v. Dep’t of

Justice, 416 F. Supp. 2d 30, 35 (D.D.C. 2006) (same); cf. Payne Enters. v. United States, 837

F.2d 486, 494 (D.C. Cir. 1988) (“The FOIA imposes no limits on courts’ equitable powers in

enforcing its terms.”). Even considering the narrowness of plaintiff’s requested relief, however,

the Court concludes that plaintiff is not entitled to a preliminary injunction because he has failed

to demonstrate any – let alone “very serious” – irreparable harm that would befall him absent the

extraordinary relief of a preliminary injunction.3

        While “[t]he concept of irreparable harm does not readily lend itself to definition,”

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 514 F. Supp. 2d 7, 10 (D.D.C. 2007), “it is

undisputed that ‘[t]he irreparable injury requirement erects a very high bar for a movant.’” EPIC,

2014 WL 521544 at *8 (quoting Coal. for Common Sense in Gov’t Procurement v. United States,

576 F. Supp. 2d 162, 168 (D.D.C. 2008)). In this regard, courts are guided by “several well

known and indisputable principles.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.

1985). “First, the injury must be both certain and great” and “actual and not theoretical.” Id.

Second, “economic loss does not, in and of itself, constitute irreparable harm.” Id. Finally, the

movant “must show ‘[t]he injury complained of is of such imminence that there is a ‘clear and

present’ need for equitable relief to prevent irreparable harm,’” and that the injury is in fact

“beyond remediation.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006) (quoting Wisconsin Gas, 758 F.2d at 674).


        3
          Because plaintiff fails to demonstrate any irreparable injury, the Court does not consider the
other preliminary injunction factors. See CityFed Fin. Corp., 58 F.3d at 747.
                                                     6
        Plaintiff’s principal argument that he has been and continues to be irreparably harmed by

TSA’s failure to “timely” respond to his requests and produce responsive documents (Mot. at 3)

is without merit. In effect, plaintiff would have this Court conclude any delay is “per se”

irreparable harm. (Pl.’s Reply to TSA’s Opp’n (“Reply”), July 2, 2014 [Dkt. No. 31] at 5.) But,

as other courts have recognized, “there is no indication[] that our Circuit Court would sanction

such a sweeping contention in the context of FOIA litigation.” Judicial Watch, 514 F. Supp. 2d

at 10; see also EPIC, 2014 WL 521544 at *9-10; Long v. Dep’t of Homeland Sec., 436 F. Supp.

2d 38, 43 (D.D.C. 2006). Indeed, under FOIA, it is difficult for a plaintiff to demonstrate

“irreparable harm” that is in fact “beyond remediation” because he is entitled to obtain all

responsive and non-exempt documents at the conclusion of the litigation. See EPIC, 2014 WL

521544 at *10; Judicial Watch, 514 F. Supp. 2d at 10. “[A]lthough [a] plaintiff’s desire to have

[his] case decided in an expedited fashion is understandable, that desire, without more, is

insufficient to constitute the irreparable harm necessary to justify the extraordinary relief” of a

preliminary injunction. Judicial Watch, 514 F. Supp. 2d at 10.

        To be sure, a movant’s general interest in timely processing of FOIA requests may be

sufficient to establish irreparable harm if the information sought is “time-sensitive.” See Judicial

Watch, 514 F. Supp. 2d at 10. In this regard, plaintiff implores the Court to consider the “larger

context of news and public interest reporting on a nationwide, multi-year pattern and practice of

TSA violations of individuals’ rights at checkpoints.” (Mot. at 4; see also Reply at 6.)4 While


        4
          Plaintiff also speculates that TSA’s responses to his Rehabilitation Act claims are “of material
relevance to [his] regular travel through TSA checkpoints,” their production “would materially affect
TSA agents’ behavior towards [him] and many other similarly situated travelers with disabilities,” and
therefore TSA’s failure to produce the responses “subjects [him] to an unavoidable increased risk of
further injury to my civil rights at the hands of TSA’s agents.” (Mot. at 3-4.) These conclusory
statements, found only in plaintiff’s motion and unsupported by any record evidence, are insufficient to
establish the required “imminence” and “irreparability” of the asserted harms.
                                                     7
this argument gets closer to those FOIA cases in which courts have found irreparable harm, e.g.,

Washington Post, 459 F. Supp. 2d at 74, the Court concludes that plaintiff has not provided

enough evidence to demonstrate the time-sensitivity of and public concern over the “specific

subject” of the TSA’s responses to plaintiff’s Rehabilitation Act grievances. Cf. Elec. Privacy

Info. Ctr. v. Dep’t of Def., 355 F. Supp. 2d 98 (D.D.C. 2004) (“Fatal to [plaintiff’s] request for

expedited treatment is the failure in its original FOIA to demonstrate that there is any current

public interest in the specific subject of that request.” (emphasis added)). Plaintiff provides

conclusory allegations (Reply at 6), but no evidence that TSA’s responses to his Rehabilitation

Act grievances would be “vital to [any] current and ongoing debate” about TSA security

checkpoint practices, see Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 41, or otherwise of “vital

public interest for an upcoming congressional election,” Washington Post, 459 F. Supp. 2d at 74-

75, or congressional or agency decision-making process requiring public input, cf. Leadership

Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005) (“urgency”

element for expedited processing met because of “upcoming expiration of the special provision

of Voting Rights Act”).5

        Thus, plaintiff “has failed to demonstrate any time sensitive need for [the requested]

information that will be irreparably lost if disclosure does not occur immediately” and this case

is allowed to proceed down the typical path of FOIA litigation. See Judicial Watch, 514 F. Supp.

2d at 10. Indeed, plaintiff’s contention that he (and others) “will be irreparably harmed unless


        5
          On July 6, 2014, plaintiff filed a motion to supplement his reply brief, which includes
“additional legal argument and case citations” as well as “letters from third parties who have written the
court to express their interest” in his FOIA action. (Pl.’s Mot. to Suppl. Reply to TSA’s Opp’n, July 6,
2014 [Dkt. No. 33] at 1.) Even considering plaintiff’s new arguments and evidence as to public interest in
his FOIA action, he still fails to demonstrate the level of exigency required for a preliminary injunction.
See Wadelton v. Dep’t of State, 941 F. Supp. 2d 120, 123 (D.D.C. 2013). Thus, the Court will deny the
motion sua sponte.
                                                    8
[he] receives the requested records quickly so that the public can participate fully in the ongoing

debate is not only unproven, it is also fundamentally flawed because it ignores the well-

established statutory FOIA process, which permits government agencies to withhold certain

requested documents and to engage in subsequent litigation over them, without regard to the

resulting production delay.” EPIC, 2014 WL 521544 at *9.6

        Therefore, the Court will deny plaintiff’s motion for a preliminary injunction. The Court

need not do more than exercise its ordinary jurisdiction over this FOIA action. CREW, 711 F.3d

at 189 n.7 (noting that “[a] district court may of course consider FOIA cases in the ordinary

course” because “[t]here is no statutory mandate for district courts to prioritize FOIA cases ahead

of other civil cases on their dockets”).7 An Order consistent with this Memorandum Opinion

will be entered on this date.


                                                                    /s/
                                                         ELLEN SEGAL HUVELLE
                                                         United States District Judge

Date: July 7, 2014




        6
          The Court recognizes, as other courts have, the relationship between the irreparable harm
analysis and the FOIA inquiry into whether plaintiff has an “urgency to inform” and thus a “compelling
need” for expedition. See 5 U.S.C. § 552(a)(6)(E)(i). Plaintiff’s failure to provide evidence that would
support a finding of an “urgency to inform” under the three-factor test in Al-Fayed v. CIA, 254 F.3d 300,
310-11 (D.C. Cir. 2001), makes it “hard to see how [he] would be irreparably harmed” by this litigation
proceeding in normal course. Long, 436 F. Supp. 2d at 44; see also Wadelton, 941 F. Supp. 2d at 123-24.
        7
          In his reply brief, plaintiff moves for “appropriate sanctions against TSA,” TSA’s counsel, and
Amanda Deplitch for their allegedly knowingly false statements in the TSA’s opposition to plaintiff’s
motion regarding the existence of plaintiff’s November 2013 FOIA/PA request. (Reply at 8.) The Court
will deny plaintiff’s motion for sanctions, as there is no evidence that the statements – although now
shown to be false – were made knowingly and in bad faith.
                                                    9
