                             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).
                                                   1
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.



                                                 2
        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.
                                                   3
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

                                                  4
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
                                                  5
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.




                                                  6
   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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