Howell v. DHS, No. 24-2791, 2024 WL 4582978 (D.D.C. Oct. 25, 2024) (Cobb, J.)

Howell v. DHS, No. 24-2791, 2024 WL 4582978 (D.D.C. Oct. 25, 2024) (Cobb, J.)

Re:  Request for order compelling DHS to release, under 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 prior to impending November 5, 2024 presidential election”

Disposition:  Denying plaintiffs’ motion for preliminary injunction

• Litigation Considerations, Preliminary Injunctions:  The court holds that “Plaintiffs’ motion runs headlong into FOIA’s exhaustion wall.” “Plaintiffs suggest that they could not exhaust the FOIA administrative process because they never received a determination on their request for expedited processing.”  “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.”  “And accordingly, DHS exercised its discretion to administratively close Plaintiffs’ noncompliant request and permit Plaintiffs to make a new one, just as its rules plainly permit.”  “At that point, Plaintiffs no longer had an active FOIA request that could be considered for expedited processing.”  “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.”
  
  “Even if Plaintiffs’ merits problems alone do not doom their request for preliminary injunction, their dubious case for irreparable harm seals the deal.”  “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.”  “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.”  “For another, Plaintiffs already successfully jumped the line on another FOIA request regarding the Vice President’s role as ‘Border Czar.’” “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’ 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.’”  “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.” “And yet, the Government points to evidence showing that Plaintiffs frequently fail to publicize the results of these requests.”  “Most telling, Plaintiffs apparently did not disseminate any results of their previous ‘Border Czar’ request despite its supposed urgency.”  “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.”  “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.”
  
  “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 requirements for expedited processing.” “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.’”  “Yet, as the Government argues, ‘FOIA offers no statutory basis to lighten Plaintiffs’ preliminary injunction burden in this manner,’ . . . and Plaintiffs cite no statutory text or binding caselaw supporting their strident rule.”  “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.”
  
  “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.” “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.”  “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.”