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
D ENYING P LAINTIFF ’ S M OTION FOR A T EMPORARY R ESTRAINING O RDER ; D ENYING P LAINTIFF ’ S M OTION FOR A P RELIMINARY I NJUNCTION ; G RANTING IN P ART P LAINTIFF ’ S

M OTION FOR AN I NJUNCTION P ENDING AN O PPORTUNITY TO P ETITION THE C OURT OF A PPEALS FOR A S TAY
I. INTRODUCTION
In PHH Corporation v. CFPB , a panel of the D.C. Circuit he ld that that the Consumer Financial Protection Bureau is unconstitutionally structured, b ecause the Director is removable only for cause. Without democratic accountability through at-w ill termination by the President of the United States, the PHH Corporation panel reasoned, the Direct or has massive, unchecked power that he can use to infri nge upon citizens’ liberty. As aremedy, instead of striking the entire CFPB or its enabling statute, the panel simply excised t he unconstitutional for-cause removal provision, leaving the CFPB functioning as an executive agency. But because the CFPB predictably petiti oned for a rehearing en banc , the panel stayed its mandate until the CFPB’s petition is resolved. Thus, after the mandate was stayed the D irector continued to be removable only for cause, despite the panel having found that that CFPB w as unconstitutionally structured.2 Shortly after this limbo period— the time between when a panel o f 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 C ompany, requesting informatio n relevant to its investigation. John Doe Co. petitioned the CFPB t o have the CID set aside on the grounds that the CFPB was acting while unconstitutionally str uctured or, in the alternati ve, to have the CID treated confidentially, but the Director de nied the company’s request, informing it that the CFPB would be posting the CID and order to the agency’s public website sho rtly. John Doe Co. raced to court, requesting preliminary i njunctive relief that would prev ent the allegedly unconstitutionally-structured CFPB from taking further adverse actions against the company. But, on February 16, 2017, the D.C. C ircuit granted the CFPB’s petition for a rehearing en banc
in PHH Corporation , vacating the panel decision and eliminating the state of limb o on which John Doe Co.’s request for inj unctive relief was based. Although at some later point in th is case the Court may very we ll be convinced that, as the PHH Corporation panel held, the CFPB was uncons titutionally structured during the course of its investigation, John Doe’s briefing of the preliminary in junction motion was directly undermined by the vacatur of the PHH Corporation opinion. Thus, based on the current briefing, Plaintiff has failed t o show that it is substantiallylikely to succee d in its pursuit of injunctive relief that would prev ent the agency from taking any adverse action against John Doe Co. Moreover, Plaintiff has not s hown that it faces likely irr eparable harm in the absence of a preliminary injunction. Accordingl y, the Court denies its moti on. However, because of the novel issues presented in this cas e and the Plaintiff’s partial inability to remedy them if the CFPB is permitted to publicize John Doe Co.’s identity, the Court wi ll issue a narrow injunction to3 preserve John Doe Co.’s rights fo r a short period of time so th at 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 pet itioned the D.C. Circuit for re view, arguing that the agency’s “status as an independent agenc y headed by a single Director vi olates Article II of the Constitution.” Id. at 7. Judge Kavanaugh, writing f or the panel, found that the existence of a single agency director, insulated from democratic accountabilit y by a for-cause removal provision, presented serious sep aration-of-powers issues. See id. at 7–8. He called “the singleDirector structure of the CFPB . . . a gross departure from set tled historical practice,” and reasoned that “[t]he . . . concen tration of enormous power in asingle, unaccountable, unchecked Director . . . poses a far greater risk of arbitrary decisionma king 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 C FPB Director’s “enormous power over American business, American consumers, and the overall U.S. economy” gave him “mor e unilateral authority than any other officer in any of the three branches of the U.S. gove rnment, other than the President.”
Id. at 7. Judge Randolph, in a short concurrence, did not take issue withJudge Kavanaugh’s analysis, but stated that he “beli eve[d] that the ALJ who presi ded over the hearing was an ‘Inferior Officer’” that shoul d have been appointed by the Pres ident. Id. at 55 (Randolph, J.,4 concurring). Judge Henderson, i n a longer concurrence, would h ave found for the plaintiff on statutory grounds and avoided the constitutional issues altoget her. See id. at 56 (Henderson, J., concurring) (“[M]y colleagues don’t stop [at the statutory issu e]. Instead, they unnecessarily reach PHH’s constitutional cha llenge, thereby rejecting one of the most fundamental tenets of judicial decisionmaking. With res pect, I cannot join them in th is departure from longstanding precedent.”). In fashioning a remedy, the pane l decided between striking downthe entire Dodd–Frank Act, striking down the portions c reating the CFPB, and “narrowl y strik[ing] down and sever[ing] the one for-cause removal provisi on that is the source of the c onstitutional problem.” Id. at 37. Judge Kavanaugh favored the latte r approach because “[g]enerall y speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the sol ution to the problem, severing any problematic portions while lea ving 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 with out the for-cause removal provision and under the supervisi on and direction of the Presid ent, the CFPB may still ‘regulate the offering and provision of cons umer financial products or se rvices under the Federal consumer financial laws[.]’”). “ The CFPB therefore [was to] co ntinue 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. Cir cuit found no constitutional impe diment to the enforcement of the administrative order against PHH Corporation. Id. at 39 (“Because our constitutional ruling will not halt the CFPB’s ongoing operati ons or the CFPB's ability to uphold the $109 million order5 against PHH, we must also cons ider PHH’s statutory objections t o the CFPB enforcement action in this case.”). The D.C. Circuit withheld issuan ce of the mandate until “sevendays after disposition of any timely petiti on for rehearing or petition fo r rehearing en banc.” Order, Document No. 16410102, USCA Ca se No. 15-1177, October 11, 2016. The CFBP did indeed timely petition for rehearing en ba nc, effectively staying the mandate until after the petition is resolved. See CFPB’s Pet. Reh’g En Ba nc, Doc. No. 1646917, USCA No. 15-1177, November 18, 2016. On February 16, 2017, the D.C. C ircuit granted the C FPB’s petition, vacating the panel’s decision. See Order on Pet. for Reh’g e n banc, Doc. No. 1661681, USCA No. 15- 1177, Feb. 17, 2017. Neither side has pr ovided briefing on the under lying 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 i nvestigative 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 vi olation.” § 5562(c)(1); Laverpool v. Taylor Bean & Whitaker Reo LLC , No. 16-cv-690, 2017 WL 90335, a t *10 (D.D.C. Jan. 10, 2017) (Kollar-Kotelly, J.) (“The [se] provisions of the Dodd–Fra nk Act . . . relate to the function and powers of [CFPB], including th e 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 produ ce documents or testimony relatedto the investigation. See 12 U.S.C. § 5562(c)(2)–(3). “CFPB i nvestigations are generally co nfidential.” John Doe Co. No. 1
v. CFPB , 195 F. Supp. 3d 9 (D.D.C. 2016) (Moss , J.). Materials receiv ed from a CID are6 “subject to requirements and pro cedures regarding confidentiali ty, in accordance with rules established by the [ CFPB].” 12 U.S.C. § 5562(d)(1). Recipients of CIDs may petiti on for the demand to be set aside and may raise constitutional “right[s ]” in their petitions. Id. § 5562(f). CIDs may be set asi de 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 t o those petitions “shall become part of the public records” unless the target of the CID is gra nted confidential treatment. This regulation is virtually identical to the Federal Trade Commissi on (“FTC”) regulation governing appeals of CIDs. Compare id. with 16 C.F.R. § 2.10(d). The FTC re gulation has been in effect since 1980. See 45 Fed. Reg. 36338. CIDs are not self-enforcing. U nder 12 U.S.C. § 5562(e)(1), whe n the target of a CID fails to comply, the CFPB is requi red to petition a district co urt 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 cha llenges, including to the CFPB’ s enabling statute. See, e.g. , id.
at 115–16.7 III. FACTUAL BACKGROUND
A. John Doe Co. Plaintiff John Doe Co. is a California limited liability compan y 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 selli ng the right to certain income streams.” Id. ¶ 15. Several news articles and press releases that Defendants introduce as eviden ce, show that John Doe Co. and the broader industry with whic h it is involved have been the su bject of investigation from several enforcement agencies and scruti ny from several public officials

. See generally Exhibits to Defs.’ Opp’n to Mot. for Prelim. Inj ., ECF No. 15-4. In addition to s ix state agencies, 2 the U.S. Government Accountability Office (“GAO”) has publicly recommend ed that the CFPB and FTC investigate companies like John Doe Co. See Defs.’ Opp’n at 14 (outlining multiple sources, none of which Plaintiff challenge d). These exhibits have been redacted, but neither side seems to dispute that John Doe Co. has been the subject of considerab le negative publicity throughout the past few years. See id. ; T.R.O. Tr. 16–17 (Statement by C hristopher 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 th e relative harm that state agen cies can do to John Doe Co.

1 The complaint is verifie d by the manager of John Doe Co. See Compl. at 20.
2 At the hearing held on February 17, 2017, counsel for CFPB ind icated that yet another governmental entity had publicly e xpressed an inve stigative int erest 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 cit es to the rough transcript of the February 9, 2017 hearing.8 compared to actions by the CFPB. 4 See T.R.O. Tr. 17 (Statement by Chr istopher Jones) (calling the CFPB “the 800-pound gorilla in the regulatory room” compare d to other regula tory bodies).
B. The CFPB’s Investigation In November 2016—a month after a pan el of the D.C. Circuit rule d 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 h ave the CID set aside or, in the alternative, given confidential treatment, but the Director of the CFPB deni ed its requests. Id. ¶¶ 5–6. In making his decision, the Director s tated that the “constitution al 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 de cision would be posted to its pub lic website on January 13, 2017.
Id. ¶ 6.

Plaintiff maintains that suc h publication would “irreparabl[y] harm” its business and goodwill by “irreversibly brandi ng Plaintiff’s business as unfa ir, deceptive, abusive, and illegal.”
Id. ¶¶ 7, 61. Plaintiff, through its manager, claims that “most” o f its 100+ employees would “immediately begin looking for othe r employment” were they to b ecome aware of an

4 After Defendants filed thei r opposition to the motion, Plainti ff submitted three expert affidavits and a Wall Street Jour nal article in support of its reply. See Sarah J. Auchterlonie Aff., ECF No. 18; Roy Shapira Aff., EC F No. 19; Pl.’s Manager Aff., E CF No. 20; Pl.’s Reply Supp. Mot. T.R.O. & P.I., Ex. A, ECF No. 21-1. Under LCvR 65.1(c), s upplemental affidavits in support of a motion for a prel iminary injunction “may be filed only with permission of the Court.” Plaintiff never s ought such permission. Although thes e exhibits would not significantly affect the Court’s analysis e ither way, because John Doe Co. “n ever sought this Court’s leave to file its supplemental declarat ion[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 ex hibits is either irrelevant to the issues at hand or too conclusory and overgeneralized to alter the C ourt’s irreparable harm analy sis.9 investigation, because a CFPB inve stigation “imperils [the comp any’s] very existence.” Id. ¶ 62. Plaintiff also claims that its service providers—which are nece ssary 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 enj oin the CFPB fro m taking any “ac tion adverse to Plaintiff— including any action in further ance of the civil investigative demand served on Plaintiff, such as publishing Plaintiff’s petition to set aside or modify the dema nd or initiating any enforcement action against Plaintiff” until the Court has made a final dete rmination. See Proposed Order, Pl.’s Mot. Prelim. Inj. at 7, E CF No. 7. “[T]he decision to gr ant injunctive relief is a discretionary exercise of the di strict 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 su ccess on the merits, (2) that it would suffer irreparable injur y if the injunction were not gran ted, (3) that an injunction would not substantially injure other interested parties, and (4) thatthe 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 irreparab le injury to prevail on a motion for a preliminary injunction. See id. (“A movant’s failure to s how any irreparable harm is therefore grounds for refusing t o issue a preliminary injunctio n, 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 r equires plaintiffs seeking prel iminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”).10 The Court finds that, in light of the D.C. Circuit’s recent vac atur 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 merit s. The Court further finds that John Doe Co. is unlikely to suffer irreparable harm in the absence o f 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 sig nificant portions of Plaintiff’s sought-after remedy would become m oot if the CFPB were allowed to publish John Doe Co.’s identity, the Court will narrowly enjoin the CFPB from publiciz ing its identity unti l 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 subs tantially likely to succeed on the merits of this action, because a panel of the D.C. Circu it held that the CFPB is uncon stitutionally structured, yet a mandate curing the constitutional deficiency has not taken effe ct. 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, inste ad relying wholesale on Judge Kavanaugh’s opinion. The Court is not bound by the vacate d D.C. Circuit panel opinio n 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 po sition to find that John Doe Co. has a high likelihood of succeeding on an eventual adjudicationof those constitutional claims.11 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 situ ation, the Court would also be lik ely 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 c ourts 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 wou ld be the one that Judge Kavanaugh has already crafted. Thus, assuming that the Court we re to agree with Judge Kavanaug h, that agreement would also likely doom John Doe Co.’ s prospect for its sought-a fter 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–F rank 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 enforcem ent actions against John Doe C o. It follows that, even assuming John Doe Co. is correct about the CFPB’s unconstitutio nal structure, Plaintiff’s likelihood of success with respe ct to obtaining its sought-afte r remedy is low. For the same reason, the Court is not incline d to use its equitable powers t o afford Plaintiff the extraordinary remedy of a preliminary injuncti on, let alone the dramatic prel iminary injunction Plaintiff seeks.12 B. Likelihood of Irreparable Harm Plaintiff argues that without apreliminary injunction it will incur irreparable harm in three ways. First, John Doe Co. claims that its liberty will b e infringed upon by the existence of an entity wielding uncheck ed executive powers. See Compl. ¶ 7. Second, it contends that compliance with the allegedly unconstitutionally-issued CID “wo uld be . . . expensive, timeconsuming, and exceptionally dis ruptive to Plaintiff’s business .” Compl. ¶ 54. Third, Plaintiff claims that the publication of the CID would irreparably harm i ts business interests. Compl. ¶
60. The D.C. Circuit “has set a hi gh standard for irr eparable injury,” requiring tha t 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 or iginal) (quoting Wisc. Gas Co.
v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). To meet th e standard, “the harm must be so imminent as to be irre parable if a court waits until the end of trial t o resolve the harm.” Rodriguez v. DeBuono , 175 F.3d 227, 235 (2d Cir. 1999). The moving party must also show that the threatened injur y 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 rem edy 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, ec onomic 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.13 2005)). As set forth below, John D oe Co. has not established alikelihood of irreparable harm on any of the three grounds it has identified. First, the prospect that its liberty will be infringed upon—sep arate 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 a ppears to be that , as an entity regulated by the CFPB, it is be ing harmed by the CFPB’s alleged ly unconstitutional structure even if the CFPB does nothing further. But this formulation of alleged irreparable harm is inconsistent with this Circui t’s handling of cases involving en forcement actions pursued in an unconstitutional manner or by an un constitutional entity becaus e having to submit oneself to an enforcement proceeding typically does not constitute irreparabl e 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 proceedi ng—which was ongoing in another forum—infringed upon his constitutional rights. See 803 F.3d at 397. Because “the expense and annoyance of litiga tion is part of the social burde n 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 independen t counsel—which he argued v iolated separ ation of powers principles—the D.C. Circuit he ld that the cost of having to def end a criminal prosecution was “not recognized as irreparable in juries justifying an equitable remedy.” 822 F.2d at 69 (quoting Younger v. Harris , 401 U.S. 37, 46 (1971)). Thus, neither potential investigati on by the CFPB nor the bringing of an enforcement action present irreparable i njuries that the C ourt is willing to enjoin. Although Plaintiff may be able to bring such a “free-s tanding” liberty interest claim,14 untethered to any action by the C FPB, that does not mean that i t entitles it to emergency injunctive relief now. Moreover, Plaintiff has not produ ced any evidence that the Pres ident wishes to remove the Director of the CFPB (for reasons other than those permitte d under the statute) but is restrained from doing so simply b ecause the full D.C. Circuit h as not resolved the issue. Absent any further evidence that Plain tiff 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 i rreparable harm with respect t o the CID in the absence of a preliminary injunction. CFPB C IDs 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 absen ce of an injunction, John Doe Co. need not do anything. If the CFPB decides to bring an enforcem ent action against John Doe Co ., Plaintiff will have an adequate federal forum in whic h to raise its con stitutional arg uments wherever the CFPB brings suit. See 12 U.S.C. § 5562(e)(1). In the meantime, John Doe Co. has fail ed to show that it will suffer irreparable harm while a waiting an enforcement action th at may never come. 6 Third, Plaintiff has not made a strong showing that it will suf fer 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 increment al and conclusory.

5 Plaintiff does not allege that it has a right not to be invest igated: it simply argues that the CFPB, led by Director Cordray, cannot investigate it presen tly, because under the statute he can only be removed for cause. But it is clear that the FTC co uld lead an identical investigation.
6 Plaintiff previously expressed aconcern that the CFPB would f orum shop and bring an enforcement action i n a circuit not bound by the PHH Corporation case law. Vacatur of that opinion has eliminated that strategic advantage.15 Plaintiff’s publication claims ar e incremental because the publ ic is already well aware that John Doe Co. has been the sub ject 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 enti re industry was subject to inves tigation. See Pl.’s Reply. In fact, Plaintiff concedes that the pub licity surrounding these investi gations has already caused it harm.
See Second Mgr.’s Decl. ¶¶ 5–6, ECF No. 20 (indicating that John Do e Co.’s manager is personally aware of vendors thathave ceased doing business with John Doe Co. and employees who have left John Doe Co. because of state regulatory investig ations). Thus, plaintiff’s conclusory argument that its employees and service providers wo uld be caught off-guard by the publication of the CID-relate d documents appears dubious. Furt her, because as noted above a CID may be issued to any entit y that may be in possession of in formation related to an investigation, see 12 U.S.C. § 5562(c)(1), the public ation 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 fai led to quantify in any way the impact on its operations that the incremental addition of this limited information to the public sphere will have. Consequentl y, Plaintiff has failed to show t hat the publica tion of the CIDrelated documents would be the str aw that broke the camel’s bac k for purposes of irreparable harm. Plaintiff’s publication claims ar e conclusory because they are supported only by overgeneralized statements rath er than empirical examples or, f or that matter, any data. The conclusory assertion by the manager of John Doe Co. that, if th e CID-related documents are published, most of its 100 employees would immediately begin lo oking for new employment is16 far from self-evident, and Pla intiff does not provide any factu al support for that assertion. See Compl. Moreover, there is no evi dence in the record demonstrat ing how the existence of a CID—which, again, may be issued to “any person . . . in possess ion, custody, or control of any . . . information[] relevant to a violation,” see § 5562(c)(1)—would cause J ohn 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 sever al redacted, but unchallenge d, sources). The Court’s doubt conc erning the extent of the alleg ed harm is compounded by the fact that John Doe Co. cannot poi nt 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 th e nearly-identical F TC regulation, which h as 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 a llegedly harmful publication p ractice, Plaintiff has failed to put forth any non-speculative evidence demonstrating that the CFPB’ s publication of the CID and other relevant documents threate ns its very existence or will r esult in significant, quantifiable financial harm.
* * * Because Plaintiff has shown ne ither a substantial likelihood o f success on the merits nor a likelihood that it will suffer irreparable harm absent the issu ance of a preliminary injunction, the Court need not consider the int erests of other interested parti es or the public. But suffice it to say that the public has a strong inter est in the vigo rous enforceme nt of consumer protection laws. The Court will deny Plaintiff’s motion for a temporary restrain ing order and preliminary injunction.17 C. Stay Pending Appeal Having denied Plaintiff’s motion f or 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 specif ically considers whether t o preserve John Doe Co.’s rights so that it has time to petition the D.C. Circuit for a s tay of this ruling i nsofar as it allows the CFPB to publicize its identity. Under Federal Rule of Civi l Procedure 62(c), “the [C]ourt may . . . grant an injunction on . . . terms that secure the op posing party’s rights. ” To determine whether to grant an injunction t o preserve a losing party’s rig hts while it petitions the Court of Appeals for a stay, the Court l ooks to four factors: (1) whethe r the case presents a serious legal question, see Citizens for Responsibility & Ethi cs in Wash. v. Office of Admin. , 593 F. Supp. 2d 156, 158 (D.D.C. 2009); (2) “the lik elihood 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 astrong showing with respect to the first factor (likelihood of success on the merits) if a strong showing is made as to the se cond 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 Kavan augh’s opinion makes clear, the constitutionality of the CFPB’s structure does prese nt a serious legal question. It appears from how the D.C. Circu it panel treated the CFPB in PHH Corporation that the Director’s actions need not be s et aside nor the CFPB’s investi gations be immediately halted. But this case may present a uni que situation becau se the Direct or’s decision to deny confidential18 treatment if effectuated befo re a decision by the full D.C. Cir cuit cannot be meaningfully remedied by a subsequent remand t o the agency. As a result, th e first factor weighs in favor of John Doe Co. The second factor—a strong showi ng of which can obviate the nee d 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 C o. In addition to weighing the l ikelihood 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 irreparab le harm that would be present un der 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 acti ons that would moot the losin g 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 [pla intiff’s] premise” that the Director cannot constitutionally release its i dentity is correct, “defendants w ould 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 lon ger have had any legal obligation to refrain from public ly disclosing Plaintiff’s iden tity or the CID-related documents. If it were to do so, neither this Court nor the Court of Appeal s could un-ring the bell, and significant portions of Plainti ff’s sought-after remedy would b ecome moot. Thus, the second factor weighs heavily i n favor of John Doe Co.19 The third factor may weigh in fa vor of the CFPB, but not signif icantly. As noted above, the Court queries just how harm ful publication of Plaintiff’s i dentity would be to John Doe Co. The company has already been the subject of, at l east, six stat e-level investigatory proceedings and at least three federal agen cies have publicly criticized th e industry as a whole. Although the CFPB’s goals may be somewhat frus trated in the interim, the ord er will not enjoin it from continuing its investigati on, so long as it does so without pub licly disclosing the name of the company for a short, additional period of time. Finally, for similar reasons, the public would not be significa ntly affected by an order temporarily preserving the statu s quo. The injun ction will notinterfere with the CFPB’s investigatory powers outside the c ontext of the disclosure of J ohn Doe Co.’s identity. Moreover, the public has already been war ned about this company—and, inde ed, the broader industry—by governmental agencies at both the state and federal levels. Weighing all four factors, the C ourt concludes that a narrow in junction preserving John Doe Co.’s ability to petition the D .C. Circuit for a stay is wa rranted. Although the Court believes its conclusion is corre ct, John Doe Co. raises a novel legal question. Once the CIDrelated documents are published, as pects of Plaintiff’s sought- after remedy w ill become moot, leaving Plaintiff irreparably inj ured if indeed the CFPB’s acti ons were not constitutionally permissible. Because these f actors weigh strongly in favor of John Doe Co. and the other factors do not weigh strongly either way, the Court will enjoin the CFP B from taking any actions that expose John Doe Co.’s identity f or two additional weeks so thatJohn Doe Co. may have a chance to petition the D.C. Circu it for a stay of this Court’s order pending any appeal.20 V. CONCLUSION For the foregoing reasons, Plaintiff’s motion for a temporary r estraining order and a preliminary injunction is denie d, and Plaintiff’s motion for aninjunction pending appeal is granted in part. An order consis tent with this Memorandum Opin ion is separately issued.
Dated: February 17, 2017 RUDOLPH CONTRERAS United States District Judge