UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MIKE HOWELL, et al.,
Plaintiffs, Case No. 24-cv-2791 (JMC)
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendant.
MEMORANDUM OPINION
Plaintiffs Mike Howell and the Heritage Foundation seek a preliminary injunction
compelling Defendant U.S. Department of Homeland Security (DHS) to release, under the
Freedom of Information Act (FOIA), “[a]ll documents and communications between U.S.
Customs and Border Protection [(CBP)] and the Executive Office of the Vice President related to
the southwest border or illegal immigration” from January 20, 2021, to the present—and to do so
in a matter of days due to the impending November 5, 2024, presidential election. ECF 1-5 at 2. 1
Plaintiffs insist that they are entitled to expedited processing of their request under the relevant
FOIA provision and DHS regulation because, “[g]iven the importance of immigration to the voting
public, Americans have a right to know what Vice President Harris did in her role as Border Czar
as well as what she did to address the border crisis.” ECF 7-1 at 11.
Yet, by failing to show their entitlement to expedited processing, or any processing, of their
request under FOIA and applicable DHS regulations, Plaintiffs fall far short of a preliminary
1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.
1 injunction’s high bar. Plaintiffs are unlikely to succeed on the merits of their expedited processing
request because they failed to exhaust FOIA administrative processes, and they advance dubious
claims of irreparable harm and the public interest. Whatever the virtue of Plaintiffs’ attempt to
expand transparency into the Vice President’s role as so-called “Border Czar” in the final days
before an election in which she is a major party’s presidential candidate, the law plainly prohibits
Plaintiffs from crossing FOIA’s own border between administrative process and judicial review.
The Court will therefore DENY Plaintiffs’ motion for a preliminary injunction.
I. BACKGROUND
1. Statutory and Regulatory Framework
FOIA requires agencies to make certain information “available to the public” upon request.
5 U.S.C. § 552(a). FOIA requests must follow the rules laid out in 5 U.S.C. § 552 and
accompanying agency regulations. Specifically, such requests must “(i) reasonably describe[]” the
records being sought and “(ii) [be] made in accordance with published rules stating the time, place,
fees (if any) and procedures to be followed.” Id. § 552(a)(3)(A). If a request meets those
requirements, the agency in receipt of the request “shall make the records promptly available to
any person.” Id.
DHS’s corresponding rules require requesters to “describe the records sought in sufficient
detail to enable DHS personnel to locate them with a reasonable amount of effort.” 6 C.F.R.
§ 5.3(b). The rules further dictate that requesters should, “[t]o the extent possible,” “include
specific information that may assist a component in identifying the requested records, such as the
date, title or name, author, recipient, subject matter of the record, case number, file designation, or
reference number.” Id. If a requester does not meet that requirement, the regulations permit the
agency to “at its discretion either administratively close the request or seek additional information
2 from the requester.” Id. § 5.3(c). The regulations also instruct the agency to “inform the requester
what additional information is needed or why the request is otherwise insufficient” after it receives
such a request, and they allow requesters to “discuss their request with the [agency] component’s
designated FOIA Officer” for help to “reformulate or modify” their request. Id § 5.2(b).
Most FOIA requests are processed in the order in which they are received, 6 C.F.R.
§ 5.5(a), which can mean substantial wait-times given the growth in FOIA request volume. See,
e.g., ECF 10-1 ¶¶ 12–13 (stating that CBP received nearly 180,000 FOIA requests in fiscal year
2024, a 25% increase over the previous fiscal year). But FOIA permits some requests to enter a
separate, faster line if they meet the requirements for “expedited processing.” 5 U.S.C.
§ 552(a)(6)(E). In that provision, Congress directed each agency to “promulgate
regulations . . . providing for expedited processing of requests for records . . . (I) in cases in which
the person requesting the records demonstrates a compelling need; and (II) in other cases
determined by the agency.” Id. § 552(a)(6)(E)(i). The statute requires that those agency regulations
“ensure . . . (I) that a determination of whether to provide expedited processing shall be
made . . . within 10 days after the date of the request; and (II) expeditious consideration of
administrative appeals of such determinations.” Id. § 552(a)(6)(E)(ii).
DHS’s expedited processing regulations specify a small set of additional reasons beyond
the statute’s “compelling need” category that may justify expedited processing. See 6 C.F.R.
§ 5.5(e). The enumerated reason Plaintiffs invoke here is that the request is “[a] matter of
widespread and exceptional media interest in which there exist possible questions about the
government’s integrity which affect public confidence.” Id. § 5.5(e)(1)(iv).
2. Factual and Procedural Background
3 On July 21, 2024, President Joe Biden suspended his presidential campaign and endorsed
Vice President Kamala Harris to be the Democratic Party’s nominee, a nomination that she secured
the following month. ECF 1-5 at 6. According to Plaintiffs, President Biden had previously (in
April 2021) appointed Vice President Harris as his “border czar,” id., a term used by Plaintiffs but
not the Government. “Effectively,” Plaintiffs explain, “this meant Vice President Harris would be
responsible for overseeing and coordinating border security policies and operations.” Id. That
purported role is the subject of Plaintiffs’ FOIA request.
Plaintiffs’ pursuit of undisclosed information about Vice President Harris’s role as, in
Plaintiffs’ phrasing, “Border Czar” did not begin with the FOIA request before the Court today.
Instead, Plaintiffs first filed a FOIA request on this topic on July 30, 2024, seeking from DHS
“[a]ll records containing the terms ‘border czar’ and ‘Harris’ from April 14, 2021 to the present.”
Compl. at 3, Heritage Found. v. DHS (Heritage I), No. 24-cv-2343-RDM (D.D.C. Aug. 12, 2024),
ECF 1. The next day, DHS requested that Plaintiffs provide a more detailed request, including
“what specific records you are seeking regarding the border and the VP” and “what offices to
conduct a search in.” Am. Compl. ¶ 15, id at ECF 7 (Aug. 30, 2024). In that July 31
correspondence, DHS informed Plaintiffs that it was not denying Plaintiffs’ request but instead
sought clarification pursuant to DHS FOIA regulations. Id. at ECF 7-3 at 3 (explaining that 6
C.F.R. § 5.3(b) requires a FOIA requester to “describe the records [they] are seeking with as much
information as possible to ensure that [DHS’s] search can locate them with a reasonable amount
of effort”). Plaintiffs specified a handful of offices that it asked DHS to search but otherwise did
not clarify its request. Id. at ECF 7-3 at 2. On August 6, 2024, DHS “administratively closed”
Plaintiffs’ request because it determined that it “[could not] conduct an adequate search” for the
records Plaintiffs sought. Id. at ECF 7 ¶ 17; id. at ECF 7-4 at 2. DHS advised Plaintiffs that their
4 request “may be reinstated upon receipt of a perfected request” (i.e., a request that met the
specificity requirements of 6 C.F.R. § 5.3(b)). Id. at ECF 7-4 at 2.
Plaintiffs did not file a new request in that case. Instead, Plaintiffs in Heritage I filed a
complaint on August 12, 2024, and an amended complaint and motion for preliminary injunction
on August 30, 2024. Compl., Heritage I, No. 24-cv-2343-RDM (D.D.C. Aug. 12, 2024), ECF 1;
Am. Compl., id. at ECF 7 (Aug. 30, 2024); Mot. for Prelim. Inj., id. at ECF 8 (Aug. 30, 2024). The
Heritage I court held a status conference on September 4, 2024, at which the Parties reported that
DHS had agreed to begin a search for records responsive to Plaintiffs’ request and work with
Plaintiffs on a processing schedule, and that Plaintiffs had “narrowed [their] request.” Id. at
ECF 11 at 42 (Hr’g Tr. 42:19). DHS subsequently offered to complete production of the requested
records by October 7, 2024. See id. at ECF 12. The Parties filed weekly status reports on DHS’s
production of documents in that case until October 8, at which point Defendant reported that it had
completed production of “eighty-nine pages of non-exempt reasonably segregable portions of
responsive records to Plaintiffs on October 7, 2024” and that this “complete[d] the Department’s
production.” Id. at ECF 19 at 1. On October 13, Plaintiffs withdrew their motion for a preliminary
injunction because DHS’s timely production provided “the relief requested in their Motion.” Id. at
ECF 20 at 1.
Despite DHS’s rapid response to Plaintiffs’ request in Heritage I, Plaintiffs were apparently
not satisfied. To the contrary, on September 18, 2024—as DHS was conducting its search and
production in Heritage I—Plaintiffs filed another FOIA request on substantially the same topic.
That request, which is before the Court here, sought “[a]ll documents and communications
between U.S. Customs and Border Protection and the Executive Office of the Vice President
related to the southwest border or illegal immigration” from “January 20, 2021, through the
5 present.” ECF 1-5 at 2. Besides the distinct wording of the request, Plaintiffs’ initial request letter
and justification for expedited processing echoed almost verbatim their submission in Heritage I.
Compare Heritage I, No. 24-cv-2343-RDM (D.D.C. Aug. 30, 2024), ECF 7-2, with ECF 1-5. The
next day, much like DHS had in Heritage I, CBP emailed Plaintiffs notifying them that their
request had been administratively closed because it failed to “include a clear and detailed
description of the records being requested,” as required by 6 C.F.R. § 5.3(b), such as “employee
names, an email domain and specific key terms.” ECF 10-7 at 2. Thus, the email explained, the
request “[was] not a perfected request” and CBP could not “initiate a search for responsive
records.” Id. CBP advised Plaintiffs to “resubmit your FOIA request, along with the required
information.” Id.
On September 23, Plaintiffs emailed a CBP official alerting them that the FOIA portal said
their request had been closed (though not acknowledging the September 19 email explaining why
that was). ECF 1-6 at 2. And on September 24, CBP responded to explain, again, that Plaintiffs’
request “lack[ed] information needed to conduct a valid search” and provided additional
instructions on the kind of information that would make the search sufficiently detailed to be valid
(e.g., specific email addresses or officials to search and specific key terms). Id. Later that day,
Plaintiffs responded that they “understood” CBP’s response but that its response “[was] not a valid
determination as you well know.” Id. Plaintiffs asked that, if CBP “intend[ed] to deny the
Request,” that it “do so promptly.” Id. Plaintiffs did not file a new request or provide the
clarifications that CBP requested. Instead, on October 2, Plaintiffs filed a complaint in this Court.
ECF 1.
Even as DHS neared completion of its production in Heritage I, the feud in this case
continued. On October 3, CBP responded to Plaintiffs’ September 24 email with additional
6 information and instructions regarding the level of detail that would be required for Plaintiffs to
perfect their then-noncompliant (and administratively closed) request. ECF 10-10 at 2–3. The
email also explained, “[o]ur office is willing to work with you on this request, but CBP FOIA does
not have full staffing and received over 179,000 FOIA request[s] this year. We do not have the
bandwidth to process your request as originally written, as it would be unduly burdensome.”
According to CBP, its FOIA office, which sent this email, was not aware that Plaintiffs had filed
suit the previous day. ECF 10-1 at 3.
On October 5, Plaintiffs responded to CBP FOIA explaining, “[w]e simply do not
understand why searches cannot easily be run here and why you believe they would be
burdensome.” ECF 8-10 at 2. Plaintiffs also threatened to “move for a [preliminary injunction] on
[October 7] if no further progress has been made.” Id. at 3. And on October 8, without any further
clarification about their (closed) request and without submitting a new request—and just one day
after DHS satisfactorily completed its production in Heritage I following Plaintiffs’ narrowing of
their request there—Plaintiffs filed a motion for a preliminary injunction in this case. ECF 7.
Plaintiffs argue that they are entitled to expedited processing because “Vice President
Kamala Harris’s role in creating and implementing the Biden-Harris Administration’s systemic
and catastrophic border policy failures” is a “fundamental question raised by widespread and
continuous media coverage that goes directly to Government integrity and sits at the front of the
minds of the American People—principally as concerns the 2024 General Election.” ECF 7-1 at 8.
They therefore ask this Court to order DHS to produce all non-exempt documents by October 22,
2024, based on early voting timelines in the Presidential election. Id. at 30–31. On October 17,
2024, DHS filed a brief in opposition to Plaintiffs’ motion. 2 ECF 10. Meanwhile, according to
2 Although Plaintiffs requested a hearing on their motion for preliminary injunction, see ECF 7-1 at 1, the Court declines that request and instead decides the motion on the papers, see Local Civ. R. 65.1(d).
7 DHS, Plaintiffs do not appear to have disseminated or publicized any of the 89+ documents DHS
produced in Heritage I about Vice President Harris’s role as “border czar.” ECF 10 at 16.
II. LEGAL STANDARD
To prevail on a motion for preliminary injunction, Plaintiffs must show (1) that they are
“likely to succeed on the merits”; (2) that they are “likely to suffer irreparable harm in the absence
of preliminary relief”; (3) that “the balance of equities tips in [their] favor”; and (4) that “an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
Where the federal government is the nonmoving party, “the balance of equities and public interest
factors merge.” Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 470 F. Supp. 3d 32, 36
(D.D.C. 2020) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Critically, a preliminary
injunction is an “extraordinary and drastic remedy” that is “never awarded as [a matter] of right.”
Munaf v. Geren, 553 U.S. 674, 689–90 (2008). A court may only grant this “extraordinary
remedy . . . upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
In deciding such a motion, courts consider “the entire record in [the] case.” Landmark Legal
Found. v. E.P.A., 910 F. Supp. 2d 270, 272 (D.D.C. 2012).
III. ANALYSIS
A. Plaintiffs’ Failure to Exhaust Defeats Their Case on the Merits
The D.C. Circuit has made clear that “[e]xhaustion of administrative remedies is generally
required before filing suit in federal court.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61
(D.C. Cir. 1990). This exhaustion requirement ensures “that the agency has an opportunity to
exercise its discretion and expertise on the matter and to make a factual record to support its
decision”—building a wall between the agency’s review and the court’s that requesters may cross
only when authorized. Id.; accord Wilbur v. C.I.A., 355 F.3d 675, 677 (D.C. Cir. 2004).
8 Plaintiffs’ motion runs headlong into FOIA’s exhaustion wall. Recall that DHS regulations,
tracking the FOIA statute, require requesters to “describe the records sought in sufficient detail to
enable DHS personnel to locate them with a reasonable amount of effort.” 6 C.F.R. § 5.3(b). If a
requester fails to do so, the regulations permit the agency to “at its discretion either
administratively close the request or seek additional information from the requester.” Id. § 5.3(c).
Courts in this District have repeatedly held that “failure to engage with an agency after a request
for clarification amounts to a failure to exhaust.” McKathan v. U.S. Dep’t of Homeland Sec.,
No. 22-CV-1865, 2024 WL 1344434, at *5–6 (D.D.C. Mar. 29, 2024); accord Dale v. IRS, 238 F.
Supp. 2d 99, 103 (D.D.C. 2002); Vest v. Dep’t of Air Force, 793 F. Supp. 2d 103, 114–15 (D.D.C.
2011). As the D.C. Circuit has explained, permitting a requester to go to court without first
responding to an agency’s request for clarification and allowing the agency to then consider its
clarified request “would undercut the purposes of exhaustion.” DeBrew v. Atwood, 792 F.3d 118,
123–24 (D.C. Cir. 2015).
Plaintiffs suggest that they could not exhaust the FOIA administrative process because they
never received a determination on their request for expedited processing. ECF 7-1 at 12–13. But
that argument runs aground because DHS made a different kind of determination altogether, one
that appears perfectly consistent with its discretion under the statute and DHS regulation: DHS
found that Plaintiffs’ request was not sufficiently detailed. ECF 10-7 at 2. 3 And accordingly, DHS
3 Plaintiffs argue in their Amended Complaint—which they filed after the Government’s response to Plaintiffs’ motion for preliminary injunction, seemingly in lieu of seeking leave to file a reply—that CBP’s administrative closure was not a final determination and thus that the only “determination” CBP has made here was to “constructively deny” Plaintiffs’ expedited processing request, allowing them to file here. ECF 12 ¶¶ 22–24. While that argument has multiple problems, it suffices to observe that the case Plaintiffs cite for that proposition (a cite they added in their complaint amendment) says exactly the opposite. There, a court in the Central District of California held that the agency’s administrative closure of a request after it referred the request to another component within the agency “[did] not constitute a final determination.” Am. C.L. Union Found. of S. Cal. v. U.S. Immigr. & Customs Enf’t, No. 2:22- CV-4760, 2024 WL 3370532, at *17 (C.D. Cal. July 8, 2024). But that court explicitly distinguished administrative closure for that reason from administrative closure “caused by the plaintiffs’ failure to perfect their requests,” and said
9 exercised its discretion to administratively close Plaintiffs’ noncompliant request and permit
Plaintiffs to make a new one, just as its rules plainly permit. See 6 C.F.R. § 5.3(c). At that point,
Plaintiffs no longer had an active FOIA request that could be considered for expedited processing.
Under DHS FOIA rules, Plaintiffs’ next step was to file another FOIA request that met the
agencies’ standards for sufficient detail per 6 C.F.R. § 5.3(b), and then wait the statutory 10-day
period for DHS to determine whether it would grant or deny their expedited processing request.
Indeed, CBP’s FOIA office complied with its regulatory requirements by providing Plaintiffs
extensive guidance on how to formulate a sufficiently detailed request. See ECF 1-6 at 2; ECF 10-
10 at 2–3. Because Plaintiffs did not themselves follow DHS’s clearly outlined procedures by
revising and refiling their request, and instead filed suit in this Court, they did not exhaust FOIA
remedies. Accordingly, this Court—per D.C. Circuit instructions—may not grant the requested
relief. Wilbur, 355 F.3d at 677 (“[E]xhaustion of administrative remedies is a mandatory
that the latter are final determinations. Id. at *18. That holding is consistent with the caselaw in this Circuit. And, contrary to Plaintiffs’ suggestion, that principle is not contradicted by Citizens for Resp. & Ethics in Washington v. Fed. Election Comm’n, which interpreted the meaning of 5 U.S.C. § 552(a)(6)(A)(i) and does not pertain to administrative closure under DHS regulations. 711 F.3d 180, 185 (D.C. Cir. 2013). In short, the cases confirm that the administrative closure was a valid determination under DHS rules, that Plaintiffs’ proper next step was to file a new request (not seek judicial review), that there was no constructive denial of their expedited processing request, and that coming to this Court was therefore premature.
10 prerequisite to a lawsuit under FOIA.”). 4 Plaintiffs thus have very little, if any, chance of success
on the merits. 5
B. Plaintiffs Fail to Show Irreparable Harm
Even if Plaintiffs’ merits problems alone do not doom their request for preliminary
injunction, their dubious case for irreparable harm seals the deal. To constitute irreparable harm,
injury to Plaintiffs must be “certain and great, actual and not theoretical, and so imminent that
there is a clear and present need for equitable relief to prevent irreparable harm.” League of Women
Voters of the U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016). In the context of motions for
preliminary injunctions on FOIA expedited processing requests, “[c]ourts in our district have
generally found irreparable harm . . . only where the requested documents are time-sensitive and
highly probative, or even essential to the integrity, of an imminent event, after which event the
utility of the records would be lessened or lost.” Heritage Found. v. U.S. Env’t Prot. Agency,
4 To be sure, the D.C. Circuit has also held that FOIA exhaustion “is not jurisdictional” and is instead a “jurisprudential doctrine” to which there may be exceptions. Hidalgo v. F.B.I., 344 F.3d 1256, 1258 (D.C. Cir. 2003). Under that doctrine, “failure to exhaust precludes judicial review if the purposes of exhaustion and the particular administrative scheme support such a bar.” Id. at 1258–59. Plaintiffs here do not discuss whether requiring exhaustion in their case would serve or disserve the purposes of exhaustion or DHS’s particular administrative scheme, so the Court does not understand Plaintiffs to be arguing for an exception to FOIA’s exhaustion requirement. Even if they were, however, the Court would have no trouble finding that imposing an exhaustion requirement in this case serves the purposes of exhaustion and the particular administrative scheme. As discussed further below, DHS is contending with a significant backlog of FOIA requests, and its requirement of sufficient detail helps it ensure that the approximately 180,000 requests it receives each year are reasonably scoped for an agency response. See ECF 10-1 ¶¶ 13–14. That seems particularly important in the context of a request for expedited processing, where the agency must give the request “priority” and respond “as soon as practicable.” 6 C.F.R. § 5.5(e)(4). The agency is best positioned to determine the sufficiency of the requests it receives, and judicial review at this stage would “undercut the purposes of exhaustion, namely preventing premature interference with agency processes” and “affording the parties and the courts the benefit of the agency’s experience and expertise.” Hidalgo, 344 F.3d at 1259. That is why courts find failure to exhaust, and decline review, when requesters “fail[] to describe adequately the records sought, provide further clarification, or otherwise engage with DHS.” McKathan, 2024 WL 1344434, at *5–6 (citing Keys v. DHS, No. 08-cv-0726, 2009 WL 614755, at *5 (D.D.C. Mar. 10, 2009)). 5 Because Plaintiffs’ merits argument fails at the exhaustion step, the Court has no occasion to decide whether Plaintiffs meet the other requirements for expedited processing under FOIA and DHS rules, see 6 C.F.R. § 5.5(e)(1)(iv)—an issue that the Parties debate extensively in their briefing, ECF 7-1 at 20–26; ECF 10 at 21–24. The agency gets to make a determination of requesters’ entitlement to expedited processing in the first instance, and Plaintiffs did not comply with the procedures that would enable the agency to make that determination.
11 No. 23-cv-748, 2023 WL 2954418, at *4 (D.D.C. Apr. 14, 2023), appeal dismissed, No. 23-5086,
2023 WL 8116008 (D.C. Cir. Nov. 17, 2023).
Plaintiffs have not met their burden under that standard. Viewed in isolation, Plaintiffs
make a colorable argument that (a) Vice President Harris’s role in border policy is a “core issue[]
in the forthcoming Presidential Election,” and (b) the utility of information about that role will
substantially lessen after the upcoming election. ECF 7-1 at 40. But Plaintiffs’ argument is belied
by their own delays in making this FOIA request and their vexing, if not vexatious, approach to
requesting and litigating it.
For one thing, Plaintiffs delayed making this request for nearly two months after Vice
President Harris entered the race for President. See ECF 1-5 (submitting the request on September
18 and citing Vice President Harris’s entry into the race on July 21). For another, Plaintiffs already
successfully jumped the line on another FOIA request regarding the Vice President’s role as
“Border Czar.” See Heritage I, No. 24-cv-2343-RDM (D.D.C.). Yet, even as Plaintiffs worked
with DHS to narrow their request—and even as they saw that DHS was willing and able to produce
responsive records on this topic at an expedited pace—Plaintiffs proceeded to prematurely file a
complaint on the instant FOIA request without even attempting to comply with basic DHS
regulations. Plaintiffs could have refined their original request during negotiations in Heritage I to
capture the (closely related) subject of interest in their new request, or they could have clarified
their new request per CBP’s instructions instead of filing prematurely with this Court. Plaintiffs
did neither. Plaintiffs’ self-imposed delays and their attempts to circumvent the rules—rules they
clearly understand—undermine any argument that their injury is “so imminent that there is a clear
and present need for equitable relief to prevent irreparable harm.” League of Women Voters, 838
F.3d at 8; see also Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005) (“An unexcused
12 delay in seeking extraordinary injunctive relief may be grounds for denial because such delay
implies a lack of urgency and irreparable harm.”).
So too does Plaintiffs’ apparent failure, in many cases, to disseminate the results of their
FOIA requests. Plaintiffs are repeated FOIA requesters, with “thousands” of requests just this year
according to the Government. ECF 10 at 15 & n.1 (citing several complaints for expedited
processing sought by Plaintiffs in this District over the past year). And yet, the Government points
to evidence showing that Plaintiffs frequently fail to publicize the results of these requests. See id.
at 16–17 & n.2 (the Government discussing results of Google searches and arguing that the Court
“may take judicial notice of Google search results”). Most telling, Plaintiffs apparently did not
disseminate any results of their previous “Border Czar” request despite its supposed urgency. Id.
at 17. That pattern poses a challenge for Plaintiffs’ irreparable harm argument, which hangs almost
entirely on the asserted harm that voters will face if they “cannot use [the requested] records to
inform their votes on an important issue” in the upcoming election. ECF 7-1 at 40. The record and
facts within judicial notice call into question the premise—necessary for Plaintiffs’ irreparable
harm argument—that Plaintiffs will in fact share with voters the results of their expedited request
and thus that a preliminary injunction here would avert “certain and great, actual and not
theoretical” injury. League of Women Voters, 838 F.3d at 8. 6
Plaintiffs’ remaining argument for irreparable harm also falls short. Plaintiffs contend that
they automatically satisfy the irreparable harm showing if they meet the statutory and regulatory
6 Plaintiffs’ Amended Complaint alleges, seemingly in response to this argument by the Government, that Plaintiffs’ “journalistic work is published most frequently on X (formally known as Twitter) to provide information directly to the American people.” ECF 12 ¶ 3. But Plaintiffs’ bare allegation is not in evidence. “An application for a preliminary injunction shall be made in a document separate from the complaint. The application shall be supported by all affidavits on which the plaintiff intends to rely.” Local Civ. R. 65.1(c); see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2949 (3d ed. 2024). (“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.”). That defect aside, the statement does not directly contradict the Government’s evidence that Plaintiffs often fail to disseminate their FOIA request results.
13 requirements for expedited processing. See ECF 7-1 at 37 (arguing that a “wrongful denial of a
statutory right to expedited processing necessarily causes irreparable harm because the statutory
right is solely one of relative timing and the clock cannot be wound back to restore to Plaintiffs
the time lost each day the Request is not expedited”). Yet, as discussed above, DHS did not
wrongfully deny a statutory right to expedited processing; to the contrary, DHS administratively
closed Plaintiffs’ expedited processing request pursuant to its clear statutory and regulatory
discretion. Moreover, Plaintiffs’ purported rule would, in Plaintiffs’ own words, “collapse[] the
likelihood of success on the merits with a showing of irreparable harm.” Id. Yet, as the Government
argues, “FOIA offers no statutory basis to lighten Plaintiffs’ preliminary injunction burden in this
manner,” ECF 10 at 13, and Plaintiffs cite no statutory text or binding caselaw supporting their
strident rule. The Court thus declines to hold that “an improper denial of expedited processing is
itself (absent some extraordinary circumstance) irreparable harm.” ECF 7-1 at 37. Such a rule is
unsupported by the statute, and regardless, Plaintiffs cannot satisfy it because DHS did not issue
an improper denial or make any expedited processing finding at all.
To be clear, the Court would deny Plaintiffs’ motion on exhaustion grounds even if
Plaintiffs had a stronger argument for irreparable harm. Still, to the extent some extraordinary,
certain irreparable harm could overcome Plaintiffs’ strong unlikelihood of success on the merits,
they fail to make the showing that such a result would require.
C. The Government’s and the Public Interest Would Not Be Served by Forcing the Agency to Prioritize Plaintiffs’ Request
The balance of equities does not tip in Plaintiffs’ favor, and the Government’s and the
public interest would not be served by forcing the agency to prioritize this request, in an
extraordinarily short period of time, over the mountain of other FOIA requests in CBP’s backlog.
According to the Government, CBP FOIA currently has a backlog of more than 125,000 FOIA
14 requests and is involved in more than 100 FOIA lawsuits. ECF 10-1 ¶ 14. Further, CBP grants
expedited processing requests “infrequently, and usually only when the request is related to an
imminent life or safety threat.” Id. ¶ 16. And as CBP attests in its Declaration,
Allowing Plaintiffs to jump the queue ahead of other FOIA requesters seeking information would incentivize litigation and weaponize FOIA at the expense of those who do not have the means to bring suit, who have been waiting patiently for a response to their request, or who are amenable to discussing ways in which their request might reasonably be narrowed to help expedite CBP FOIA’s processing time. Id. ¶ 18.
Finally, Plaintiffs’ unwillingness to work with the agency to clarify its request and facilitate
any processing at all—let alone expedited processing—renders relief here all the more inequitable
and contrary to the public interest. Plaintiffs insist that “the entire point of expedited processing
under FOIA and the DHS’[s] own regulations is a judgment by both Congress and the agency that
these harms and burdens [on the agency’s FOIA operations] are outweighed by the need to process
certain requests on an expedited basis to ensure transparency into salient and time-sensitive issues
of the day.” ECF 7-1 at 42–43. Accordingly, they claim, the balance of the equities and public
interest questions were already answered by Congress and “largely merge[] with the merits” of
Plaintiffs’ expedited processing request. Id. at 42. But, again, Plaintiffs did not follow Congress’s
statute or DHS regulations, and they therefore lack a case on the merits. Thus, even accepting
Plaintiffs’ merger rule arguendo, Plaintiffs cannot satisfy it here. FOIA’s procedural rules exist
for a reason, and disregarding them here would disserve the public interest.
In sum, the Court will not compel DHS to prioritize Plaintiffs’ vague, noncompliant request
above the 125,000 FOIA requests in its backlog, or even the smaller number of cases in its
expedited processing queue, given Plaintiffs’ clear failure to exhaust the administrative process
and dubious showing of irreparable harm. Plaintiffs have already successfully sought information
15 about the issue they claim is now so urgent, and their premature attempt to return to this Court
with a highly similar request borders on the vexatious.
* * *
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction, ECF 7, is
DENIED. A separate order accompanies this memorandum opinion.
SO ORDERED.
__________________________ JIA M. COBB United States District Judge
Date: October 25, 2024