Case 1:19-cv-00582 Document 1 Filed 03/04/19 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ALLIED PROGRESS,
)
1875 Connecticut Avenue NW, 10th Floor
)
Washington, DC 20009-6046
)
)
Plaintiff, )
)
v.
)
)
CONSUMER FINANCIAL
)
PROTECTION BUREAU,
)
1700 G Street NW
)
Washington, DC 20552
)
)
Defendant. )
)

Case No. 19-cv-0582

COMPLAINT
1.

Plaintiff Allied Progress brings this action against the Consumer Financial

Protection Bureau under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive
relief to compel compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because Defendant has failed to comply with the applicable time-limit provisions

of FOIA, Allied Progress is deemed to have exhausted its administrative remedies pursuant to 5
U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from

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continuing to withhold agency records and ordering the production of agency records improperly
withheld.
PARTIES
5.

Plaintiff Allied Progress is a consumer watchdog organization that uses research,

including FOIA requests, to hold federal government officials accountable for the undue
influence of financial industry interests on government activities and decisions. Allied Progress
is primarily engaged in disseminating information to the public and uses the information
gathered from public records requests to educate the public through reports, press releases, and
other media. Allied Progress makes information it gathers available on its public website. Allied
Progress is located in Washington, D.C.
6.

Defendant the Consumer Financial Protection Bureau (CFPB) is an agency of the

federal government within the meaning of 5 U.S.C. § 552(f)(1). CFPB has possession, custody,
and control of the records that Allied Progress seeks.
STATEMENT OF FACTS
7.

On September 26, 2018, The Washington Post reported that CFPB official Eric

Blankenstein, a political appointee who was brought on to lead CFPB’s Supervision,
Enforcement and Fair Lending division, expressed controversial views on a blog related to racial
slurs and hate crimes. The FOIA requests at issue seek information that would shed light on how
CFPB officials responded to reports of Mr. Blankenstein’s comments and what actions they took
to ensure that the views he expressed do not affect agency policy.
8.

On October 4, 2018, Allied Progress submitted four FOIA requests to CFPB (the

“October 4th FOIA Requests”).
9.

The first request sought:
[A]ll emails sent by, to, or carbon copying (“CC”) the following
officials from September 24, 2018, through September 28, 2018:

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•
•
10.

Eric Blankenstein
John Czwartacki

The second request sought:
[C]ertain emails that were sent by, sent to, or carbon copied
(“CC”) the following officials from September 29, 2018, through
the date this request is processed:
•
•

Eric Blankenstein
John Czwartacki

Specifically, [Allied Progress requests] all emails from these
officials during this time period that contain any of the following
keywords:
•
•
•
•
•
•
•
•
•
•
•
•
11.

“Blankenstein”
“Eric”
“discrimination”
“tone and framing”
“zero tolerance”
“racial”
“racist”
“hate crimes”
“hate speech”
“birther”
“egb3r”
“Two Guys Chatting”

The third request sought:
[C]ertain emails that were sent by, sent to, or carbon copied
(“CC”) the following officials from September 24, 2018, through
the date this request is processed:
•
•
•
•

Mick Mulvaney
Kirsten Sutton Mork
Patrice Ficklin
Christopher D’Angelo

Specifically, [Allied Progress requests] all emails from these
officials during this time period that contain any of the following
keywords:
•
•

“Blankenstein”
“Eric”
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•
•
•
•
•
•
•
•
•
•
12.

“discrimination”
“tone and framing”
“zero tolerance”
“racial”
“racist”
“hate crimes”
“hate speech”
“birther”
“egb3r”
“Two Guys Chatting”

The fourth request sought:
[A]ll emails sent by, sent to, or carbon copying (“CC”) any
employee within the Office of Fair Lending and Equal Opportunity
between September 24, 2018, and the date this request is
processed, which contain any of the following keywords:
•
•
•
•
•
•
•
•
•
•
•
•

13.

“Blankenstein”
“Eric”
“discrimination”
“tone and framing”
“zero tolerance”
“racial”
“racist”
“hate crimes”
“hate speech”
“birther”
“egb3r”
“Two Guys Chatting”

On October 5, 2018, Allied Progress submitted a fifth FOIA request to CFPB (the

“October 5th FOIA Request”), seeking:
[A]ll emails from any CFPB employee sent in reply (including all
forwarded emails) to the following emails sent by CFPB officials:
•
•
•

Subject: “My thoughts” (sent by Patrice Ficklin on
September 28, 2018)
Subject: “Message to my colleagues” (sent by Eric
Blankenstein on October 1, 2018)
Subject: “Update from the Acting Director” (sent by Mick
Mulvaney on October 2, 2018)

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14.

By email dated October 11, 2018, CFPB acknowledged Allied Progress’s October

4th FOIA Requests, aggregating the four requests and assigning them one tracking number,
BCFP-2019-0013-F. CFPB also indicated that “[d]ue to the anticipated volume, [it would]
invoke a 10-day extension for your request, as allowed by 5 U.S.C. § 552(a)(6)(B).”
15.

Allied Progress responded to CFPB’s email on October 12, 2018, clarifying what

Allied Progress perceived to be a misunderstanding of the requests by CFPB in its October
11, 2018 email, and offering to provide any further clarification CFPB may request.
16.

On November 15, 2018, CFPB emailed Allied Progress, providing initial

information on the volume of potentially responsive records, and requesting that Allied Progress
email or call to discuss narrowing their requests.
17.

While CFPB had not separately acknowledged Allied Progress’s October 5th

FOIA Request, CFPB’s November 15, 2018 email referred to searches CFPB ran seeking records
potentially responsive to that request, confirming CFPB’s receipt of the October 5th FOIA
Request and aggregation of that request with the October 4th FOIA Requests under tracking
number BCFP-2019-0013-F.
18.

Allied Progress made multiple attempts, starting on December 6, 2018, and

continuing into January 2019, to contact CFPB by phone and email to discuss the five FOIA
requests.
19.

Allied Progress received no response from CFPB to its phone calls or emails,

except for automated email replies, until February 13, 2019, when CFPB emailed Allied
Progress, acknowledging the agency’s delayed response, and asking for “info/clarification on the
request.”
20.

Allied Progress responded by email on February 15, 2019, offering to prioritize

and narrow in part its requests.

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21.

Allied Progress has received no further communication from CFPB regarding the

October 4th FOIA Requests or the October 5th FOIA Request.
Exhaustion of Administrative Remedies
22.

As of the date of this complaint, Defendant has failed to (a) notify Allied Progress

of any determination regarding its FOIA requests, including the scope of any responsive records
Defendant intends to produce or withhold and the reasons for any withholdings; or (b) produce
the requested records or demonstrate that the requested records are lawfully exempt from
production.
23.

Through Defendant’s failure to respond to Allied Progress’s FOIA requests within

the time period required by law, Allied Progress has constructively exhausted its administrative
remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Search for Responsive Records
24.

Allied Progress repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
25.

Allied Progress properly requested records within the possession, custody, and

control of CFPB.
26.

CFPB is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.
27.

CFPB has failed to promptly review agency records for the purpose of locating

those records that are responsive to Allied Progress’s FOIA requests.
28.

CFPB’s failure to conduct an adequate search for responsive records violates

FOIA.

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29.

Plaintiff Allied Progress is therefore entitled to injunctive and declaratory relief

requiring Defendant to promptly make reasonable efforts to search for records responsive to
Allied Progress’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
30.

Allied Progress repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
31.

Allied Progress properly requested records within the possession, custody, and

control of CFPB.
32.

CFPB is an agency subject to FOIA and must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
33.

Defendant is wrongfully withholding non-exempt agency records requested by

Allied Progress by failing to produce non-exempt records responsive to its FOIA requests.
34.

Defendant is wrongfully withholding non-exempt agency records requested by

Allied Progress by failing to segregate exempt information in otherwise non-exempt records
responsive to Allied Progress’s FOIA requests.
35.

Defendant’s failure to provide all non-exempt responsive records violates FOIA.

36.

Plaintiff Allied Progress is therefore entitled to declaratory and injunctive relief

requiring Defendant to promptly produce all non-exempt records responsive to its FOIA requests
and provide indexes justifying the withholding of any responsive records withheld under claim
of exemption.

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REQUESTED RELIEF
WHEREFORE, Allied Progress respectfully requests the Court to:
(1) Order Defendant to conduct a search or searches reasonably calculated to uncover all
records responsive to Allied Progress’s FOIA requests;
(2) Order Defendant to produce, within twenty days of the Court’s order, or by such other
date as the Court deems appropriate, any and all non-exempt records responsive to
Allied Progress’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendant from continuing to withhold any and all non-exempt records
responsive to Allied Progress’s FOIA requests;
(4) Award Allied Progress the costs of this proceeding, including reasonable attorneys’
fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C.
§ 552(a)(4)(E); and
(5) Grant Allied Progress such other relief as the Court deems just and proper.

Dated: March 4, 2019

Respectfully submitted,
/s/ Elizabeth France
Elizabeth France
D.C. Bar No. 999851
/s/ Katherine M. Anthony
Katherine M. Anthony
MA Bar No. 685150*
Pro hac vice motion to be submitted
/s/ John E. Bies
John E. Bies
D.C. Bar No. 483730
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005

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(202) 897-4213
beth.france@americanoversight.org
katherine.anthony@americanoversight.org
john.bies@americanoversight.org
*Member of the MA bar only; practicing in the
District of Columbia under the supervision of
members of the D.C. Bar while application for
D.C. Bar membership is pending.
Counsel for Plaintiff Allied Progress

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