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DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv02403
Date Filed2018-10-18
Date ClosedOpen
JudgeJudge Colleen Kollar-Kotelly
Case DescriptionJoshua Baker, an attorney, submitted a FOIA request to the Consumer Financial Protection Bureau for records concerning the 2015 Civil Investigative Demand issued by the agency to Zillow Group. The agency acknowledged receipt of the request and told Baker that the cost of processing his request would be $35,000. Baker's law firm paid the $35,000. The agency told Baker that his request was placed in the complex queue for processing. After hearing nothing further from the agency, Baker filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

1700 G Street NW
Washington, DC 20552
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [10]
FOIA Project Annotation: A recent case pitting the legitimate need for government information by an attorney whose primary practice is completely unrelated to FOIA against the realities of expedited disclosure under FOIA provides an interesting discussion about the limited usefulness of FOIA as a vehicle for supporting class-action suits that would benefit from the inclusion of government information but that fail to articulate any recognized basis for forcing an agency to expedite the processing of a request. The case involved a request from Joshua Baker, an attorney at the Rosen Law Firm that was representing purchasers of Zillow securities in a class action suit alleging violations of the Securities Exchange Act of 1934. Baker submitted a FOIA request to the Consumer Financial Protection Bureau for records concerning its investigation of Zillow. The agency provided a fee estimate of $35,160 to search for the records. Rosen promptly sent a check for the full amount, but weeks later discovered that the agency had not cashed the check. When Baker called the FOIA analyst assigned to his request for an explanation, he was told that the agency had held off on cashing the check because it was likely to withhold or redact the vast majority of the 630,000 potentially responsive records. Baker was given an opportunity to narrow the scope of his request, but he declined to do so. The agency then told Baker his request had been put in the complex queue, that there were approximately 20 complex requests ahead of his, and that it would probably take six to nine months to process his request. Baker filed a complaint arguing that the agency had violated FOIA by failing to respond within the statutory 20-day time limit and ultimately asked the court to grant him a preliminary injunction requiring the agency to process and disclose the records within 90 days. Judge Colleen Kollar-Kotelly started by explaining the four factors for assessing whether or not to grant a preliminary injunction " (1) the likelihood of success on the merits, (2) the likelihood that the plaintiff will suffer irreparable harm without preliminary relief, (3) the balance of equities tips in favor of the plaintiff, and (4) the injunction is in the public interest. After describing the four factors, Kollar-Kotelly observed that Baker had not requested expediting processing, the remedy included in FOIA for speeding the process of responding to a request. She pointed out that "if such processing is not sought, Defendant considers the complexity of the request and other facts in deciding where in the processing queue the request falls. In this case, having failed to request expedited processing administratively, Plaintiff asks this Court to help him jump from his position as approximately twentieth in the 'complex' queue and have his request proceed before those of all the other individuals waiting, including those approved for expedited processing." She added that "but even ignoring Plaintiff's failure to request expedited processing, the Court concludes that Plaintiff has failed to establish a likelihood of success on the merits, to show irreparable harm, or to demonstrate that the balance of hardships and the public interest weigh in favor of injunctive relief." Baker based his likelihood of success claim on the obvious fact that the agency had failed to respond within 20 days. In response, Kollar-Kotelly noted that "but, Plaintiff misunderstands the consequences that follow when an agency fails to meet this twenty-day deadline." She pointed out that "Plaintiff argues that Defendant's failure to comply with the twenty-day deadline means that 'Plaintiff is entitled to the immediate processing of his request and the release of the requested records.' But, an agency's violation of the twenty-day deadline does not entitle the requester to immediate processing and release of the responsive documents." She explained that in CREW v. FEC, 711 F.3d 180 (D.C. Cir. 2013), the D.C. Circuit held that "when an agency fails to make an initial determination within twenty days, 'the penalty' is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court. Rather, the requester is deemed to have exhausted his administrative remedies and can seek immediate judicial review of the agency's processing of the request. In sum, CREW v. FEC makes clear that the impact of blowing the 20-day deadline relates only to the requester's ability to get into court.'" Baker argued that CFPB had not shown the existence of exceptional circumstances that would qualify them to process the request more slowly. Kollar-Kotelly disagreed, noting that CFPB had shown that its number of FOIA requests each year had consistently grown by 25 percent and that its increase in 2017-2018 had been 47 percent. This had resulted in the agency having 174 pending requests, 75 of which were considered complex. Further, the agency had increased from three to five its full-time FOIA staff. In response to Baker's allegation that CFPB was not showing due diligence, Kollar-Kotelly pointed out that "the fact that Defendant has not been able to review and release these responsive documents due to the approximately 100 FOIA requests ahead of Plaintiff's, twenty of which are complex, does not show a lack of diligence." Kollar-Kotelly rejected Baker's irreparable harm claim as well. Baker argued that class-action plaintiffs would be harmed if the records were not disclosed in 90 days. Kollar-Kotelly observed that "this is not they type of harm that FOIA was created to address." She added that "while Plaintiff's rights under FOIA are not diminished by the personal reason for his request, neither is FOIA concerned with the effect disclosure or lack thereof will have on Plaintiff's lawsuit." She dismissed Baker's claim that access to the records would allow him to write a more effective complaint in the class-action litigation. She pointed out that "Plaintiff has pointed to no case law supporting his proposition that the inability to draft a more effective complaint is a legally recognized irreparable harm." She also rejected Baker's claim that the public interest would suffer if the records were not disclosed in a timelier fashion. She observed that "the Court is not convinced that Plaintiff will be irreparably harmed if the preliminary injunction is not granted. Besides his own pleading deadline, Plaintiff has not presented evidence of any time-sensitive need for the documents." Balancing Baker's need for immediate access against the purported hardships caused to other requesters, Kollar-Kotelly found Baker was not entitled to an injunction. She explained that "Plaintiff is in effect asking the Government to expend resources to process quickly his request for documents needed for his clients' lawsuit, before processing the records of other requesters. Granting the type of request made by Plaintiff would harm the approximately 100 other requesters, 20 of whom have complex requests, in line ahead of Plaintiff and would erode the proper functioning of the FOIA system."
Issues: Litigation - Jurisdiction - Injunction, Expedited processing, Delay - Exceptional circumstance
User-contributed Documents
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-10-181COMPLAINT against CONSUMER FINANCIAL PROTECTION BUREAU ( Filing fee $ 400 receipt number 0090-5747480) filed by JOSHUA BAKER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons CFPB, # 3 Summons USAG, # 4 Summons DC USAO)(Porritt, Nicholas) (Entered: 10/18/2018)
2018-10-18Case Assigned to Judge Colleen Kollar-Kotelly. (zmd) (Entered: 10/23/2018)
2018-10-192MOTION for Preliminary Injunction by JOSHUA BAKER (Attachments: # 1 Declaration Joshua Baker, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Text of Proposed Order)(Porritt, Nicholas) (Entered: 10/19/2018)
2018-10-233SUMMONS (3) Issued Electronically as to CONSUMER FINANCIAL PROTECTION BUREAU, U.S. Attorney and U.S. Attorney General (jf) (Entered: 10/23/2018)
2018-10-234NOTICE of Appearance by Johnny Hillary Walker, III on behalf of All Defendants (Walker, Johnny) (Entered: 10/23/2018)
2018-10-23MINUTE ORDER: On October 23, 2018, the Court conducted a teleconference with the parties regarding Plaintiff's request for a Preliminary Injunction in his FOIA case. Defense counsel indicated that there are two groups of potentially responsive documents. One group contains approximately 2,700 documents; the other group contains over 600,000 documents. Due to the large number of documents and the complexity of the request, Defense counsel indicated it is unlikely that the documents will be reviewed and disclosed with a Vaughn index by November 2, 2018, the date requested by Plaintiff. The parties report that they will continue discussions in an attempt to narrow and prioritize Plaintiff's FOIA request. While the parties continue their discussions, the Court will set a briefing schedule. The Court ORDERS Defendant to file a response to Plaintiff's Motion for a Preliminary Injunction by OCTOBER 29, 2018 at 12:00 p.m. The Court further ORDERS Plaintiff to file a Reply by OCTOBER 30, 2018 at 5:00 p.m. Signed by Judge Colleen Kollar-Kotelly on 10/23/2018. (lcckk3) (Entered: 10/23/2018)
2018-10-23Set/Reset Deadlines: Defendant's Response to 2 due by 10/29/2018. Reply due by 10/30/2018. (dot) (Entered: 10/24/2018)
2018-10-295Memorandum in opposition to re 2 MOTION for Preliminary Injunction filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Attachments: # 1 Declaration of Raynell Lazier (with exhibits))(Walker, Johnny) (Entered: 10/29/2018)
2018-10-296ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on 10/29/18. (DM) (Entered: 10/29/2018)
2018-10-307REPLY to opposition to motion re 2 MOTION for Preliminary Injunction filed by JOSHUA BAKER. (Attachments: # 1 Declaration)(Porritt, Nicholas) (Entered: 10/30/2018)
2018-10-308MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jonathan Stern, :Firm- The Rosen Law Firm, P.A., :Address- 275 Madison Avenue, 34th Floor. Phone No. - 212-686-1060. Fax No. - 212-202-3827 Filing fee $ 100, receipt number 0090-5765945. Fee Status: Fee Paid. by JOSHUA BAKER (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Porritt, Nicholas) (Entered: 10/30/2018)
2018-10-31MINUTE ORDER GRANTING 8 Motion for Admission of Attorney Pro Hac Vice with respect to Jonathan Stern, in order for him to appear as counsel for Plaintiff, CONTINGENT on said attorney filing a declaration certifying familiarity with this Court's Local Rules by no later than NOVEMBER 5, 2018. Counsel shall promptly register for this Court's CM/ECF system.Signed by Judge Colleen Kollar-Kotelly on 10/31/2018. (lcckk3) (Entered: 10/31/2018)
2018-11-019ORDER denying 2 Motion for Preliminary Injunction. Signed by Judge Colleen Kollar-Kotelly on 11/1/2018. (lcckk3) (Entered: 11/01/2018)
2018-11-0110MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 11/1/2018. (lcckk3) (Entered: 11/01/2018)
2018-11-01MINUTE ORDER: Understanding that an Answer has yet to be filed, the Court ORDERS Defendant to file a Status Report by NOVEMBER 15, 2018. Using the prioritization of documents set out in Plaintiff's 7 Reply, Defendant's Status Report should provide a timeline indicating how much time it would take for Defendant to process and release on a rolling basis the three groups of documents Plaintiff has identified. See Reply Statement of Points and Authorities in Support of Plaintiff's Motion for a Preliminary Injunction, ECF No. 7 , 1-2. Signed by Judge Colleen Kollar-Kotelly on 11/1/2018. (lcckk3) (Entered: 11/01/2018)
2018-11-01Set/Reset Deadlines: Defendant's Status Report due by 11/15/2018. (kt) (Entered: 11/01/2018)
2018-11-0511RESPONSE TO ORDER OF THE COURT re Order on Motion for Leave to Appear Pro Hac Vice, Declaration Certifying Familiarity with Local Rules filed by JOSHUA BAKER. (Stern, Jonathan) (Entered: 11/05/2018)
2018-11-1512STATUS REPORT by CONSUMER FINANCIAL PROTECTION BUREAU. (Walker, Johnny) (Entered: 11/15/2018)
2018-11-1513RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CONSUMER FINANCIAL PROTECTION BUREAU served on 11/15/2018 (Stern, Jonathan) Modified party served on 11/16/2018 (ztd). (Entered: 11/15/2018)
2018-11-1514MOTION to Intervene by ZILLOW GROUP, INC (Attachments: # 1 Memorandum in Support, # 2 Corporate Disclosure, # 3 Proposed Answer, # 4 Text of Proposed Order)(Kramer, Kelly) (Entered: 11/15/2018)
2018-11-1515NOTICE of Appearance by Kelly B. Kramer on behalf of ZILLOW GROUP, INC (Kramer, Kelly) (Entered: 11/15/2018)
2018-11-19MINUTE ORDER: The Court is in receipt of Zillow Group, Inc.'s 14 Motion to Intervene. Zillow indicates that Defendant does not object to this motion. But, Zillow reports that Plaintiff has not yet indicated whether or not it objects to the motion. The Court ORDERS Plaintiff to file a response to Zillow's Motion by NOVEMBER 30, 2018. The Court further ORDERS Zillow to file a reply in support of its motion by DECEMBER 7, 2018, if Zillow deems a reply to be necessary. Signed by Judge Colleen Kollar-Kotelly on 11/19/2018.(lcckk3) (Entered: 11/19/2018)
2018-11-20NOTICE OF ERROR re 15 Notice of Appearance; emailed to, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Attorney's membership with the bar of this court has lapsed; Please visit our website for renewal instructions: (znmw, ) (Entered: 11/20/2018)
2018-11-2716RESPONSE re 14 MOTION to Intervene filed by JOSHUA BAKER. (Stern, Jonathan) (Entered: 11/27/2018)
2018-11-2717ORDER granting 14 Motion to Intervene. Signed by Judge Colleen Kollar-Kotelly on 11/27/2018. (lcckk3) (Entered: 11/27/2018)
2018-12-1718ANSWER to Complaint by CONSUMER FINANCIAL PROTECTION BUREAU.(Walker, Johnny) (Entered: 12/17/2018)
2018-12-1719ORDER. Signed by Judge Colleen Kollar-Kotelly on 12/17/2018. (lcckk3) (Entered: 12/17/2018)
2018-12-17Set/Reset Deadlines: Joint Meet & Confer Statement due by 1/22/2019. (dot) (Entered: 12/18/2018)
2019-01-2220MOTION to Stay by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Coles-Huff, Doris). Added MOTION for Extension of Time to on 1/25/2019 (znmw). (Entered: 01/22/2019)
2019-01-22MINUTE ORDER: The Court is in receipt of Defendant's 20 Motion for Stay and Extension of Time in Light of Lapse of Appropriations. As of December 21, 2018, the appropriations act that had been funding the Department of Justice expired and appropriations lapsed. Absent an appropriation, Department attorneys are prohibited from working except in situations which do not apply to this case. Defendant requests that this action be stayed during the lapse in appropriations and that the Court extend the deadline for submitting the Joint Meet and Confer Statement for 30 days after appropriations have been restored. Defendant reports that the Plaintiff and Intervenor agree to the requested stay and extension. Defendant's motion is GRANTED. The case is STAYED and the parties are ORDERED to file their Joint Meet and Confer Statement 30 days after appropriations have been restored to the Department of Justice. Defendant has not indicated whether the agency personnel responsible for processing Plaintiff's FOIA request have been deemed essential. To the extent that those agency personnel have been deemed essential, they should continue to process Plaintiff's FOIA request during the pendency of the lapse in appropriations so that, upon restoration of funding, the Joint Meet and Confer Statement may be submitted more promptly.Signed by Judge Colleen Kollar-Kotelly on 1/22/2019. (lcckk3) (Entered: 01/22/2019)
2019-01-2521MOTION to Stay by ZILLOW GROUP, INC (Attachments: # 1 Memorandum in Support, # 2 Declaration of Kelly B. Kramer, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Text of Proposed Order)(Kramer, Kelly) (Entered: 01/25/2019)
2019-01-28MINUTE ORDER: On January 22, 2019, the Court issued a Stay in this case based on the lack of appropriations to the Department of Justice. However, as appropriations have now been restored for at least three weeks, the Court ORDERS the Stay LIFTED. During the Stay, the court indicated that those CFBP personnel in charge of processing Plaintiff's FOIA request should continue processing the request during the pendency of the lapse in appropriations to the extent possible. It appears that the CFPB has provided Zillow with some records and has asked Zillow its views on what information is exempt from disclosure. In its 21 Motion to Stay, Zillow asks the Court to stay this case based on its opinion that the Supreme Court's decision in Food Marketing Institute v. Argus Leader Media, No. 18-481 will provide insight on the meaning of the term "confidential" as it applies to certain FOIA exemptions that Zillow may attempt to use. Zillow indicates that Plaintiff opposes its motion and that Defendant has not yet expressed a position. The Court ORDERES Plaintiff to file an Opposition to Zillow's motion by FEBRUARY 8, 2019. Defendant is also ORDERED to indicate its position on Zillow's motion by FEBRUARY 8, 2019. Zillow is ORDERED to file a Reply in support of its motion by FEBURARY 15, 2019. Signed by Judge Colleen Kollar-Kotelly on 1-28-2019. (lcckk3) (Entered: 01/28/2019)
2019-01-28Set/Reset Deadlines: Plaintiff's Response to 21 due by 2/8/2019. Reply due by 2/15/2019. (dot) (Entered: 01/29/2019)
2019-02-0822RESPONSE re 21 MOTION to Stay (Statement of Nonopposition) filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Walker, Johnny) (Entered: 02/08/2019)
2019-02-0823Memorandum in opposition to re 21 MOTION to Stay filed by JOSHUA BAKER. (Stern, Jonathan) (Entered: 02/08/2019)
2019-02-1524REPLY to opposition to motion re 21 MOTION to Stay filed by ZILLOW GROUP, INC. (Kramer, Kelly) (Entered: 02/15/2019)
2019-02-2125ORDER granting 21 Motion to Stay. Signed by Judge Colleen Kollar-Kotelly on 2-21-2019. (lcckk3) (Entered: 02/21/2019)
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