                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

JOHN DOE COMPANY,                                :
                                                 :
       Plaintiff,                                :       Civil Action No.:      17-0049 (RC)
                                                 :
       v.                                        :       Re Document Nos.:      7, 25
                                                 :
CONSUMER FINANCE PROTECTION                      :
BUREAU, et al.,                                  :
                                                 :
       Defendants.                               :

                                 MEMORANDUM OPINION

    DENYING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER; DENYING
  PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION; GRANTING IN PART PLAINTIFF’S
   MOTION FOR AN INJUNCTION PENDING AN OPPORTUNITY TO PETITION THE COURT OF
                               APPEALS FOR A STAY

                                      I. INTRODUCTION

       In PHH Corporation v. CFPB, a panel of the D.C. Circuit held that that the Consumer

Financial Protection Bureau is unconstitutionally structured, because the Director is removable

only for cause. Without democratic accountability through at-will termination by the President

of the United States, the PHH Corporation panel reasoned, the Director has massive, unchecked

power that he can use to infringe upon citizens’ liberty. As a remedy, instead of striking the

entire CFPB or its enabling statute, the panel simply excised the unconstitutional for-cause

removal provision, leaving the CFPB functioning as an executive agency. But because the CFPB

predictably petitioned for a rehearing en banc, the panel stayed its mandate until the CFPB’s

petition is resolved. Thus, after the mandate was stayed the Director continued to be removable

only for cause, despite the panel having found that that CFPB was unconstitutionally structured.
        Shortly after this limbo period—the time between when a panel of the D.C. Circuit found

the CFPB unconstitutional and the issuance of a circuit mandate—began, the CFPB issued a civil

investigative demand to John Doe Company, requesting information relevant to its investigation.

John Doe Co. petitioned the CFPB to have the CID set aside on the grounds that the CFPB was

acting while unconstitutionally structured or, in the alternative, to have the CID treated

confidentially, but the Director denied the company’s request, informing it that the CFPB would

be posting the CID and order to the agency’s public website shortly. John Doe Co. raced to

court, requesting preliminary injunctive relief that would prevent the allegedly

unconstitutionally-structured CFPB from taking further adverse actions against the company.

But, on February 16, 2017, the D.C. Circuit granted the CFPB’s petition for a rehearing en banc

in PHH Corporation, vacating the panel decision and eliminating the state of limbo on which

John Doe Co.’s request for injunctive relief was based.

        Although at some later point in this case the Court may very well be convinced that, as

the PHH Corporation panel held, the CFPB was unconstitutionally structured during the course

of its investigation, John Doe’s briefing of the preliminary injunction motion was directly

undermined by the vacatur of the PHH Corporation opinion. Thus, based on the current

briefing, Plaintiff has failed to show that it is substantially likely to succeed in its pursuit of

injunctive relief that would prevent the agency from taking any adverse action against John Doe

Co. Moreover, Plaintiff has not shown that it faces likely irreparable harm in the absence of a

preliminary injunction. Accordingly, the Court denies its motion. However, because of the

novel issues presented in this case and the Plaintiff’s partial inability to remedy them if the CFPB

is permitted to publicize John Doe Co.’s identity, the Court will issue a narrow injunction to




                                                    2
preserve John Doe Co.’s rights for a short period of time so that it may seek a stay from the

Court of Appeals.


                                  II. LEGAL BACKGROUND

                                  A. PHH Corporation v. CFPB

        In October 2016, a panel of the D.C. Circuit held that the CFPB is unconstitutionally

structured. See PHH Corp. v. CFPB, 839 F.3d 1, 8 (D.C. Cir. 2016), reh’g en banc granted,

D.C. Cir. No. 15-1177, Feb. 17, 2017. In PHH Corporation, a mortgage lender who was subject

to a CFPB enforcement action petitioned the D.C. Circuit for review, arguing that the agency’s

“status as an independent agency headed by a single Director violates Article II of the

Constitution.” Id. at 7. Judge Kavanaugh, writing for the panel, found that the existence of a

single agency director, insulated from democratic accountability by a for-cause removal

provision, presented serious separation-of-powers issues. See id. at 7–8. He called “the single-

Director structure of the CFPB . . . a gross departure from settled historical practice,” and

reasoned that “[t]he . . . concentration of enormous power in a single, unaccountable, unchecked

Director . . . poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far

greater threat to individual liberty, than does a multi-member independent agency.” Id. at 8. He

went so far as to say that the CFPB Director’s “enormous power over American business,

American consumers, and the overall U.S. economy” gave him “more unilateral authority than

any other officer in any of the three branches of the U.S. government, other than the President.”

Id. at 7.

        Judge Randolph, in a short concurrence, did not take issue with Judge Kavanaugh’s

analysis, but stated that he “believe[d] that the ALJ who presided over the hearing was an

‘Inferior Officer’” that should have been appointed by the President. Id. at 55 (Randolph, J.,


                                                  3
concurring). Judge Henderson, in a longer concurrence, would have found for the plaintiff on

statutory grounds and avoided the constitutional issues altogether. See id. at 56 (Henderson, J.,

concurring) (“[M]y colleagues don’t stop [at the statutory issue]. Instead, they unnecessarily

reach PHH’s constitutional challenge, thereby rejecting one of the most fundamental tenets of

judicial decisionmaking. With respect, I cannot join them in this departure from longstanding

precedent.”).

       In fashioning a remedy, the panel decided between striking down the entire Dodd–Frank

Act, striking down the portions creating the CFPB, and “narrowly strik[ing] down and sever[ing]

the one for-cause removal provision that is the source of the constitutional problem.” Id. at 37.

Judge Kavanaugh favored the latter approach because “[g]enerally speaking, when confronting a

constitutional flaw in a statute, [courts] try to limit the solution to the problem, severing any

problematic portions while leaving the remainder intact.” Id. (quoting Free Enter. Fund v.

PCAOB, 561 U.S. 477, 508 (2010)). The court thus held that the Dodd–Frank Act and the CFPB

would “remain ‘fully operative as a law’ without the for-cause removal restriction.” Id. at 38

(quoting Free Enter. Fund, 561 U.S. at 508) (“Operating without the for-cause removal

provision and under the supervision and direction of the President, the CFPB may still ‘regulate

the offering and provision of consumer financial products or services under the Federal

consumer financial laws[.]’”). “The CFPB therefore [was to] continue to operate and to perform

its many duties, but . . . as an executive agency.” Id. at 8. With the CFPB functioning as an

executive agency, the D.C. Circuit found no constitutional impediment to the enforcement of the

administrative order against PHH Corporation. Id. at 39 (“Because our constitutional ruling will

not halt the CFPB’s ongoing operations or the CFPB's ability to uphold the $109 million order




                                                  4
against PHH, we must also consider PHH’s statutory objections to the CFPB enforcement action

in this case.”).

                   The D.C. Circuit withheld issuance of the mandate until “seven days after

disposition of any timely petition for rehearing or petition for rehearing en banc.” Order,

Document No. 16410102, USCA Case No. 15-1177, October 11, 2016. The CFBP did indeed

timely petition for rehearing en banc, effectively staying the mandate until after the petition is

resolved. See CFPB’s Pet. Reh’g En Banc, Doc. No. 1646917, USCA No. 15-1177, November

18, 2016. On February 16, 2017, the D.C. Circuit granted the CFPB’s petition, vacating the

panel’s decision. See Order on Pet. for Reh’g en banc, Doc. No. 1661681, USCA No. 15-1177,

Feb. 17, 2017. Neither side has provided briefing on the underlying constitutional issue

addressed by Judge Kavanaugh’s opinion in PHH Corporation.

                                   B. Civil Investigative Demands

        Under 12 U.S.C. § 5562, the CFPB has the power to issue civil investigative demands

(“CIDs”) “[w]henever the Bureau has reason to believe that any person may be in possession,

custody, or control of any . . . information[] relevant to a violation.” § 5562(c)(1); Laverpool v.

Taylor Bean & Whitaker Reo LLC, No. 16-cv-690, 2017 WL 90335, at *10 (D.D.C. Jan. 10,

2017) (Kollar-Kotelly, J.) (“The[se] provisions of the Dodd–Frank Act . . . relate to the function

and powers of [CFPB], including the authority to issue [CIDs] and to seek enforcement of CIDs

by the district court.”). The CID is required to state the nature of the alleged violation and may

require the recipient to produce documents or testimony related to the investigation. See 12

U.S.C. § 5562(c)(2)–(3). “CFPB investigations are generally confidential.” John Doe Co. No. 1

v. CFPB, 195 F. Supp. 3d 9 (D.D.C. 2016) (Moss, J.). Materials received from a CID are




                                                   5
“subject to requirements and procedures regarding confidentiality, in accordance with rules

established by the [CFPB].” 12 U.S.C. § 5562(d)(1).

       Recipients of CIDs may petition for the demand to be set aside and may raise

constitutional “right[s]” in their petitions. Id. § 5562(f). CIDs may be set aside if they are issued

“outside the scope of the [CFPB]’s authority.” FCPB v. Accrediting Council for Indep. Colleges

& Sch., 183 F. Supp. 3d 79, 81 (D.D.C. 2016) (Leon, J.). Under 12 C.F.R. § 1080.6(g), all

petitions to set aside CIDs and the CFPB’s orders in response to those petitions “shall become

part of the public records” unless the target of the CID is granted confidential treatment. This

regulation is virtually identical to the Federal Trade Commission (“FTC”) regulation governing

appeals of CIDs. Compare id. with 16 C.F.R. § 2.10(d). The FTC regulation has been in effect

since 1980. See 45 Fed. Reg. 36338.

       CIDs are not self-enforcing. Under 12 U.S.C. § 5562(e)(1), when the target of a CID

fails to comply, the CFPB is required to petition a district court for a court order directing the

target to comply with the CID. Morgan Drexen, Inc. v. CFPB, 979 F. Supp. 2d 104, 108 (D.D.C.

2013), aff’d, 785 F.3d 684 (D.C. Cir. 2015) (“CIDs are not self-enforcing, and [the statute] does

not impose a fine or penalty for failure to comply with a CID.”). In that forum, the target of the

CID may raise constitutional challenges, including to the CFPB’s enabling statute. See, e.g., id.

at 115–16.




                                                  6
                               III. FACTUAL BACKGROUND

                                         A. John Doe Co.

       Plaintiff John Doe Co. is a California limited liability company with its principal place of

business in the Philippines. See Verified Compl. (“Compl.”) ¶ 10.1 John Doe Co. “is in the

business of purchasing and selling the right to certain income streams.” Id. ¶ 15. Several news

articles and press releases that Defendants introduce as evidence, show that John Doe Co. and

the broader industry with which it is involved have been the subject of investigation from several

enforcement agencies and scrutiny from several public officials. See generally Exhibits to Defs.’

Opp’n to Mot. for Prelim. Inj., ECF No. 15-4. In addition to six state agencies,2 the U.S.

Government Accountability Office (“GAO”) has publicly recommended that the CFPB and FTC

investigate companies like John Doe Co. See Defs.’ Opp’n at 14 (outlining multiple sources,

none of which Plaintiff challenged). These exhibits have been redacted, but neither side seems

to dispute that John Doe Co. has been the subject of considerable negative publicity throughout

the past few years. See id.; T.R.O. Tr. 16–17 (Statement by Christopher Jones, counsel to John

Doe Co.) (acknowledging that John Doe Co. has been subject to “state agenc[ies] enforcing state

law”).3 Rather, the parties dispute the relative harm that state agencies can do to John Doe Co.




       1
           The complaint is verified by the manager of John Doe Co. See Compl. at 20.
       2
          At the hearing held on February 17, 2017, counsel for CFPB indicated that yet another
governmental entity had publicly expressed an investigative interest in John Doe Co. The details
of this assertion are not yet in the record.
       3
         Due to the time-sensitive nature of this motion, the Court cites to the rough transcript of
the February 9, 2017 hearing.


                                                 7
compared to actions by the CFPB. 4 See T.R.O. Tr. 17 (Statement by Christopher Jones) (calling

the CFPB “the 800-pound gorilla in the regulatory room” compared to other regulatory bodies).


                                    B. The CFPB’s Investigation

           In November 2016—a month after a panel of the D.C. Circuit ruled that the CFPB is

unconstitutionally structured—the CFPB served a Civil Investigative Demand (“CID”) on John

Doe Co. Id. ¶¶ 2, 4. John Doe Co. petitioned to have the CID set aside or, in the alternative,

given confidential treatment, but the Director of the CFPB denied its requests. Id. ¶¶ 5–6. In

making his decision, the Director stated that the “constitutional challenge [was] not properly

raised in th[e] administrative hearing . . . because government agencies may not entertain a

constitutional challenge to authorizing statutes.” Id. ¶ 58. The CFPB informed John Doe Co.

that the CID and Director’s decision would be posted to its public website on January 13, 2017.

Id. ¶ 6.


           Plaintiff maintains that such publication would “irreparabl[y] harm” its business and

goodwill by “irreversibly branding Plaintiff’s business as unfair, deceptive, abusive, and illegal.”

Id. ¶¶ 7, 61. Plaintiff, through its manager, claims that “most” of its 100+ employees would

“immediately begin looking for other employment” were they to become aware of an



           4
           After Defendants filed their opposition to the motion, Plaintiff submitted three expert
affidavits and a Wall Street Journal article in support of its reply. See Sarah J. Auchterlonie Aff.,
ECF No. 18; Roy Shapira Aff., ECF No. 19; Pl.’s Manager Aff., ECF No. 20; Pl.’s Reply Supp.
Mot. T.R.O. & P.I., Ex. A, ECF No. 21-1. Under LCvR 65.1(c), supplemental affidavits in
support of a motion for a preliminary injunction “may be filed only with permission of the
Court.” Plaintiff never sought such permission. Although these exhibits would not significantly
affect the Court’s analysis either way, because John Doe Co. “never sought this Court’s leave to
file its supplemental declaration[s,] . . . [they] shall not be considered.” Elk Assocs. Funding
Corp. v. U.S. Small Bus. Admin., 858 F. Supp. 2d 1, 26 (D.D.C. 2012). Regardless, the
information contained in those exhibits is either irrelevant to the issues at hand or too conclusory
and overgeneralized to alter the Court’s irreparable harm analysis.


                                                   8
investigation, because a CFPB investigation “imperils [the company’s] very existence.” Id. ¶ 62.

Plaintiff also claims that its service providers—which are necessary for its business—would

“sever ties” with Plaintiff to avoid entanglement with the CFPB. Id. ¶ 63. Although the

complaint is verified by the manager of John Doe Co., there are no empirical examples or other

figures supporting his or her conclusions. See Compl. ¶¶ 59–63.


                                          IV. ANALYSIS

       Plaintiff asks the Court to enjoin the CFPB from taking any “action adverse to Plaintiff—

including any action in furtherance of the civil investigative demand served on Plaintiff, such as

publishing Plaintiff’s petition to set aside or modify the demand or initiating any enforcement

action against Plaintiff” until the Court has made a final determination. See Proposed Order,

Pl.’s Mot. Prelim. Inj. at 7, ECF No. 7. “[T]he decision to grant injunctive relief is a

discretionary exercise of the district court’s equitable powers . . . .” Sea Containers Ltd. v. Stena

AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989). In general, courts grant preliminary injunctions only

when the moving party shows “(1) a substantial likelihood of success on the merits, (2) that it

would suffer irreparable injury if the injunction were not granted, (3) that an injunction would

not substantially injure other interested parties, and (4) that the public interest would be furthered

by the injunction.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.

Cir. 2006). The moving party must show some level of irreparable injury to prevail on a motion

for a preliminary injunction. See id. (“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.”); see also Winter v. NRDC, 555 U.S. 7, 20 (2008) (“Our

frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that

irreparable injury is likely in the absence of an injunction.”).


                                                   9
       The Court finds that, in light of the D.C. Circuit’s recent vacatur of the PHH Corporation

decision and because even the remedy in PHH Corporation would not provide Plaintiff’s

requested relief, Plaintiff is unlikely to succeed on the merits. The Court further finds that John

Doe Co. is unlikely to suffer irreparable harm in the absence of a preliminary injunction.

Because Plaintiff does not make a strong showing on either of these factors, the Court will deny

its request for a preliminary injunction. However, because significant portions of Plaintiff’s

sought-after remedy would become moot if the CFPB were allowed to publish John Doe Co.’s

identity, the Court will narrowly enjoin the CFPB from publicizing its identity until Plaintiff has

an opportunity to petition the Court of Appeals for a stay of the Court’s order.

                            A. Likelihood of Success on the Merits

       John Doe Co. argues that it is substantially likely to succeed on the merits of this action,

because a panel of the D.C. Circuit held that the CFPB is unconstitutionally structured, yet a

mandate curing the constitutional deficiency has not taken effect. See Pl.’s Mem. Supp. Mot.

T.R.O. & Prelim. Inj. (“Pl.’s Mot.”) at 11–12, 14–15, ECF No. 7-1. Notably, although Plaintiff

maintains that the vacatur of the D.C. Circuit’s panel opinion does not affect its motion, Plaintiff

has not provided briefing on the constitutional question, instead relying wholesale on Judge

Kavanaugh’s opinion.

       The Court is not bound by the vacated D.C. Circuit panel opinion in PHH Corporation.

Ass’n of Civilian Technicians, Montana Air Chapter v. Fed. Labor Relations Auth., 756 F.2d

172, 176 (D.C. Cir. 1985) (quoting Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C. Cir.) (per

curiam), cert. denied, 444 U.S. 991 (1979)). Without briefing on the constitutional questions

surrounding the structure of the CFPB, the Court is not in a position to find that John Doe Co.

has a high likelihood of succeeding on an eventual adjudication of those constitutional claims.




                                                 10
See, e.g. Washington v. Gov’t Employees Ins. Co., 769 F. Supp. 383, 388 (D.D.C. 1991). Thus,

the Court is disinclined to exercise its equitable, discretionary power to grant the extraordinary

relief of a preliminary injunction.

       But even if the Court were to adopt Judge Kavanaugh’s reasoning based merely on the

panel’s decision in PHH Corporation, Plaintiff would be unlikely to obtain the relief it seeks.

This is because, in that situation, the Court would also be likely to adopt Judge Kavanaugh’s

narrow remedy. Cf. US JVC Corp. v. United States, 184 F.3d 1362, 1365 (Fed. Cir. 1999)

(noting that in cases when courts are bound by another court’s reasoning, the court must also

“ensure that . . . remedies are consistent” with that reasoning). John Doe Co. has not briefed any

argument otherwise, and accordingly the most obvious remedy would be the one that Judge

Kavanaugh has already crafted.

       Thus, assuming that the Court were to agree with Judge Kavanaugh, that agreement

would also likely doom John Doe Co.’s prospect for its sought-after remedy. As the panel held,

the proper remedy for the constitutional infirmity is to excise the for-cause removal provision,

not gut the CFPB or Dodd–Frank Act altogether. See 839 F.3d at 39. Thus, the Court would

likely grant the same narrow relief that the panel did in PHH Corporation, which would still

allow the CFPB to pursue enforcement actions against John Doe Co. It follows that, even

assuming John Doe Co. is correct about the CFPB’s unconstitutional structure, Plaintiff’s

likelihood of success with respect to obtaining its sought-after remedy is low. For the same

reason, the Court is not inclined to use its equitable powers to afford Plaintiff the extraordinary

remedy of a preliminary injunction, let alone the dramatic preliminary injunction Plaintiff seeks.




                                                 11
                               B. Likelihood of Irreparable Harm

       Plaintiff argues that without a preliminary injunction it will incur irreparable harm in

three ways. First, John Doe Co. claims that its liberty will be infringed upon by the existence of

an entity wielding unchecked executive powers. See Compl. ¶ 7. Second, it contends that

compliance with the allegedly unconstitutionally-issued CID “would be . . . expensive, time-

consuming, and exceptionally disruptive to Plaintiff’s business.” Compl. ¶ 54. Third, Plaintiff

claims that the publication of the CID would irreparably harm its business interests. Compl. ¶

60.

       The D.C. Circuit “has set a high standard for irreparable injury,” requiring that the injury

“be both certain and great,” and “actual and not theoretical.” Chaplaincy of Full Gospel

Churches, 454 F.3d at 297 (internal citations and quotations omitted). “The moving party 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.’” Id. (alteration in original) (quoting Wisc. Gas Co.

v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). To meet the standard, “the harm

must be so imminent as to be irreparable if a court waits until the end of trial to resolve the

harm.” Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999). The moving party must also

show that the threatened injury is “beyond remediation” with other forms of relief. See

Chaplaincy of Full Gospel Churches, 454 F.3d at 297. In general, economic loss alone does not

warrant the extraordinary remedy of a preliminary injunction. See Nat’l Mining Ass’n v.

Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (citing Wisc. Gas Co. v. FERC, 758 F.2d 669,

674 (D.C. Cir. 1985)). “However, economic loss that threatens the survival of the movant’s

business can amount to irreparable harm.” Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34,

50 (D.D.C. 2011) (citing Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C.




                                                 12
2005)). As set forth below, John Doe Co. has not established a likelihood of irreparable harm on

any of the three grounds it has identified.

       First, the prospect that its liberty will be infringed upon—separate from the issuance of

the CID and impending publication—could be remedied if and when the CFPB brings an

enforcement action against John Doe Co. Plaintiff’s argument appears to be that, as an entity

regulated by the CFPB, it is being harmed by the CFPB’s allegedly unconstitutional structure

even if the CFPB does nothing further. But this formulation of alleged irreparable harm is

inconsistent with this Circuit’s handling of cases involving enforcement actions pursued in an

unconstitutional manner or by an unconstitutional entity because having to submit oneself to an

enforcement proceeding typically does not constitute irreparable harm. See Jarkesy v. SEC, 803

F.3d 9, 26 (D.C. Cir. 2015); Deaver v. Seymour, 822 F.2d 66, 69 (D.C. Cir. 1987). In Jarkesy,

the plaintiff sued claiming that the SEC’s enforcement proceeding—which was ongoing in

another forum—infringed upon his constitutional rights. See 803 F.3d at 397. Because “the

expense and annoyance of litigation is part of the social burden of living under government,” the

D.C. Circuit found that the burden of impending litigation did not constitute irreparable harm.

Id. at 411 (internal citation omitted). Likewise in Deaver, where the plaintiff sued to enjoin his

ongoing prosecution by an independent counsel—which he argued violated separation of powers

principles—the D.C. Circuit held that the cost of having to defend a criminal prosecution was

“not recognized as irreparable injuries justifying an equitable remedy.” 822 F.2d at 69 (quoting

Younger v. Harris, 401 U.S. 37, 46 (1971)). Thus, neither potential investigation by the CFPB

nor the bringing of an enforcement action present irreparable injuries that the Court is willing to

enjoin. Although Plaintiff may be able to bring such a “free-standing” liberty interest claim,




                                                13
untethered to any action by the CFPB, that does not mean that it entitles it to emergency

injunctive relief now.

       Moreover, Plaintiff has not produced any evidence that the President wishes to remove

the Director of the CFPB (for reasons other than those permitted under the statute) but is

restrained from doing so simply because the full D.C. Circuit has not resolved the issue. Absent

any further evidence that Plaintiff is being concretely harmed by the current state of affairs

caused by the vacatur of the PHH Corporation panel decision, the Court will follow the D.C.

Circuit’s lead and allow the legal wrangling to play out.5

       Second, there is little risk of irreparable harm with respect to the CID in the absence of a

preliminary injunction. CFPB CIDs are not self-enforcing, and accordingly do not subject the

recipient to civil or criminal penalties for non-compliance. See, e.g., Morgan Drexen, Inc., 979

F. Supp. 2d at 108. In the absence of an injunction, John Doe Co. need not do anything. If the

CFPB decides to bring an enforcement action against John Doe Co., Plaintiff will have an

adequate federal forum in which to raise its constitutional arguments wherever the CFPB brings

suit. See 12 U.S.C. § 5562(e)(1). In the meantime, John Doe Co. has failed to show that it will

suffer irreparable harm while awaiting an enforcement action that may never come.6

       Third, Plaintiff has not made a strong showing that it will suffer irreparable harm from

the CFPB’s impending publication of the CID and order denying the petition to set the CID

aside. Plaintiff’s claims fail because they are both incremental and conclusory.



       5
         Plaintiff does not allege that it has a right not to be investigated: it simply argues that
the CFPB, led by Director Cordray, cannot investigate it presently, because under the statute he
can only be removed for cause. But it is clear that the FTC could lead an identical investigation.
       6
         Plaintiff previously expressed a concern that the CFPB would forum shop and bring an
enforcement action in a circuit not bound by the PHH Corporation case law. Vacatur of that
opinion has eliminated that strategic advantage.


                                                 14
        Plaintiff’s publication claims are incremental because the public is already well aware

that John Doe Co. has been the subject of state-level investigations and that the entire industry is

under scrutiny from the GAO, CFPB, and FTC. See Defs.’ Opp’n at 14; Pl.’s Reply at 19;

T.R.O. Tr.at 16. Plaintiff does not dispute that the GAO, FTC, and CFPB have all publicly

suggested that Plaintiff’s entire industry was subject to investigation. See Pl.’s Reply. In fact,

Plaintiff concedes that the publicity surrounding these investigations has already caused it harm.

See Second Mgr.’s Decl. ¶¶ 5–6, ECF No. 20 (indicating that John Doe Co.’s manager is

personally aware of vendors that have ceased doing business with John Doe Co. and employees

who have left John Doe Co. because of state regulatory investigations). Thus, plaintiff’s

conclusory argument that its employees and service providers would be caught off-guard by the

publication of the CID-related documents appears dubious. Further, because as noted above a

CID may be issued to any entity that may be in possession of information related to an

investigation, see 12 U.S.C. § 5562(c)(1), the publication of the CID-related documents will only

establish that, at most, the CFPB is potentially investigating John Doe Co., not that it has brought

an enforcement action against it. John Doe Co. has utterly failed to quantify in any way the

impact on its operations that the incremental addition of this limited information to the public

sphere will have. Consequently, Plaintiff has failed to show that the publication of the CID-

related documents would be the straw that broke the camel’s back for purposes of irreparable

harm.

        Plaintiff’s publication claims are conclusory because they are supported only by

overgeneralized statements rather than empirical examples or, for that matter, any data. The

conclusory assertion by the manager of John Doe Co. that, if the CID-related documents are

published, most of its 100 employees would immediately begin looking for new employment is




                                                 15
far from self-evident, and Plaintiff does not provide any factual support for that assertion. See

Compl. Moreover, there is no evidence in the record demonstrating how the existence of a

CID—which, again, may be issued to “any person . . . in possession, custody, or control of any . .

. information[] relevant to a violation,” see § 5562(c)(1)—would cause John Doe Co. significant

harm given that the GAO, CFPB, and FTC have all publicly stated that the industry is the subject

of investigations. See Defs.’ Opp’n at 14–15 (citing several redacted, but unchallenged,

sources). The Court’s doubt concerning the extent of the alleged harm is compounded by the

fact that John Doe Co. cannot point to a single instance where the publication of a CID has led to

a company going out of business, or even suffering significant financial harm, under either the

CFPB regulation or the nearly-identical FTC regulation, which has been in effect for nearly 40

years. See Pl.’s Reply (failing to address the CFPB’s argument). Needless to say, despite a long

history of the operation of the allegedly harmful publication practice, Plaintiff has failed to put

forth any non-speculative evidence demonstrating that the CFPB’s publication of the CID and

other relevant documents threatens its very existence or will result in significant, quantifiable

financial harm.

                                          *       *       *

       Because Plaintiff has shown neither a substantial likelihood of success on the merits nor a

likelihood that it will suffer irreparable harm absent the issuance of a preliminary injunction, the

Court need not consider the interests of other interested parties or the public. But suffice it to say

that the public has a strong interest in the vigorous enforcement of consumer protection laws.

The Court will deny Plaintiff’s motion for a temporary restraining order and preliminary

injunction.




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                                      C. Stay Pending Appeal

          Having denied Plaintiff’s motion for a preliminary injunction, the Court next considers

Plaintiff’s motion for an injunction pending appeal. See Pl.’s Mot. T.R.O. & Inj. Pending

Appeal, ECF No. 25. The Court specifically considers whether to preserve John Doe Co.’s

rights so that it has time to petition the D.C. Circuit for a stay of this ruling insofar as it allows

the CFPB to publicize its identity. Under Federal Rule of Civil Procedure 62(c), “the [C]ourt

may . . . grant an injunction on . . . terms that secure the opposing party’s rights.” To determine

whether to grant an injunction to preserve a losing party’s rights while it petitions the Court of

Appeals for a stay, the Court looks to four factors: (1) whether the case presents a serious legal

question, see Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 593 F. Supp. 2d

156, 158 (D.D.C. 2009); (2) “the likelihood that the losing party will be irreparably harmed

absent a stay;” (3) “the prospect that others will be harmed if the court grants the stay;” and (4)

the public’s interest, see Loving v. IRS, 920 F. Supp. 2d 108, 110 (D.D.C. 2013). “A party does

not necessarily have to make a strong showing with respect to the first factor (likelihood of

success on the merits) if a strong showing is made as to the second factor (likelihood of

irreparable harm).” People for the Am. Way Found. v. U.S. DOE, 518 F. Supp. 2d 174, 177

(D.D.C. 2007) (citing Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir.

1985)).

          Although the Court believes its holding correct, as Judge Kavanaugh’s opinion makes

clear, the constitutionality of the CFPB’s structure does present a serious legal question. It

appears from how the D.C. Circuit panel treated the CFPB in PHH Corporation that the

Director’s actions need not be set aside nor the CFPB’s investigations be immediately halted.

But this case may present a unique situation because the Director’s decision to deny confidential




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treatment if effectuated before a decision by the full D.C. Circuit cannot be meaningfully

remedied by a subsequent remand to the agency. As a result, the first factor weighs in favor of

John Doe Co.

       The second factor—a strong showing of which can obviate the need for a strong showing

in the first factor, see People for the Am. Way Found., 518 F. Supp. 2d at 177—also weighs

heavily in favor of John Doe Co. In addition to weighing the likelihood that the irreparable

injury will occur, “[t]he Court must consider the significance of the change from the status quo

which would arise in the absence of a stay.” CREW, 593 F. Supp. 2d at 162 (quoting Judicial

Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 230 F. Supp. 2d 12, 15 (D.D.C. 2002)). The Court

may also consider the irreparable harm that would be present under the appellant’s competing

legal interpretation. See Judicial Watch, 230 F. Supp. 2d at 15. Courts routinely issue

injunctions to stay the status quo when the trial court’s order would otherwise allow the

prevailing party to engage in actions that would moot the losing party’s right to appeal. See

People for the Am. Way Found., 518 F. Supp. 2d at 177 (D.D.C. 2007) (citing John Doe Agency,

et al. v. John Doe Corp., 488 U.S. 1306, 1308–09 (1989) (Marshall, J., in chambers)). Like in

Judicial Watch, “[t]here is no doubt that, if [plaintiff’s] premise” that the Director cannot

constitutionally release its identity is correct, “defendants would suffer irreparable harm if the

proceedings before this Court were not stayed to enable them to seek appellate review.” See 230

F. Supp. 2d at 15. Absent today’s order, the CFPB would no longer have had any legal

obligation to refrain from publicly disclosing Plaintiff’s identity or the CID-related documents.

If it were to do so, neither this Court nor the Court of Appeals could un-ring the bell, and

significant portions of Plaintiff’s sought-after remedy would become moot. Thus, the second

factor weighs heavily in favor of John Doe Co.




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       The third factor may weigh in favor of the CFPB, but not significantly. As noted above,

the Court queries just how harmful publication of Plaintiff’s identity would be to John Doe Co.

The company has already been the subject of, at least, six state-level investigatory proceedings

and at least three federal agencies have publicly criticized the industry as a whole. Although the

CFPB’s goals may be somewhat frustrated in the interim, the order will not enjoin it from

continuing its investigation, so long as it does so without publicly disclosing the name of the

company for a short, additional period of time.

       Finally, for similar reasons, the public would not be significantly affected by an order

temporarily preserving the status quo. The injunction will not interfere with the CFPB’s

investigatory powers outside the context of the disclosure of John Doe Co.’s identity. Moreover,

the public has already been warned about this company—and, indeed, the broader industry—by

governmental agencies at both the state and federal levels.

       Weighing all four factors, the Court concludes that a narrow injunction preserving John

Doe Co.’s ability to petition the D.C. Circuit for a stay is warranted. Although the Court

believes its conclusion is correct, John Doe Co. raises a novel legal question. Once the CID-

related documents are published, aspects of Plaintiff’s sought-after remedy will become moot,

leaving Plaintiff irreparably injured if indeed the CFPB’s actions were not constitutionally

permissible. Because these factors weigh strongly in favor of John Doe Co. and the other factors

do not weigh strongly either way, the Court will enjoin the CFPB from taking any actions that

expose John Doe Co.’s identity for two additional weeks so that John Doe Co. may have a

chance to petition the D.C. Circuit for a stay of this Court’s order pending any appeal.




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                                       V. CONCLUSION

       For the foregoing reasons, Plaintiff’s motion for a temporary restraining order and a

preliminary injunction is denied, and Plaintiff’s motion for an injunction pending appeal is

granted in part. An order consistent with this Memorandum Opinion is separately issued.


Dated: February 17, 2017                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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