John Doe Company v. Consumer Financial Protection Bureau , 235 F. Supp. 3d 194 ( 2017 )

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.
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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.
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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.”).
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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.
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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.
16
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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