Case 1:22-cv-02069 Document 1 Filed 07/14/22 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FUNCTIONAL GOVERNMENT INITIATIVE )

6218 Georgia Avenue, N.W. )
Suite 1-1235 )
Washington, D.C. 20011, )
)
Plaintiff, )
)
v. ) Civil Case No. 1:22-cv-2069
)
UNITED STATES CONSUMER FINANCIAL )
PROTECTION BUREAU )
1700 G Street, N.W. )
Washington, D.C. 20552, )
)
Defendant. )
_________________________________________ )

COMPLAINT
1. Plaintiff, Functional Government Initiative (“FGI”), brings this action against the United

States Consumer Financial Protection Bureau (“CFPB”) pursuant to the Freedom of

Information Act, 5 U.S.C. § 552 (“FOIA”), and the Declaratory Judgment Act, 28 U.S.C. §§

2201 and 2202, requesting declaratory and injunctive relief to compel Defendant’s

compliance with FOIA.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this FOIA matter pursuant to 5 U.S.C. §552(a)(4)(B) and 28

U.S.C. §§ 1331, 2201, and 2202.

3. Venue in this Court is provided for by 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).

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PARTIES TO THE ACTION

4. Plaintiff, FGI, is an unincorporated association of individuals dedicated to improving the

American public’s access to information about the officials, decisions, actions, and priorities

of their government. See D.C. Code § 29-1102(5).

5. FGI accomplishes its mission though investigative research, analysis, and dissemination of

the information it obtains. The records FGI obtains under FOIA are vital to accomplishing its

mission.

6. Defendant, CFPB, is an independent agency within the federal government and an “agency”

within the meaning of and subject to FOIA. See 5 U.S.C. § 551(1), § 552(f)(1).

STATEMENT OF FACTS

7. On January 20, 2022, FGI submitted a FOIA request to CFPB, seeking information from

specific offices of the CFPB as follows:

FGI requests all records from October 1, 2021, to the date the CFPB conducts the search
meeting the following criteria:

1. All records, including any drafts, that contain, reference, discuss, or otherwise relate
to a discussion that occurred on or about October 31, 2021, between Mr. Rohit
Chopra and/or his staff and Chairman Jelena McWilliams and/or her staff relating to
bank mergers. For context, this communication is referenced here: “A Hostile Takeover
of the FDIC” by Jelena McWilliams, Wall Street Journal (Dec. 15, 2021), available at
https://www.wsj.com/articles/hostile-takeover-fdic-board-rohit-chopra-michael-hsu-
jelena-mcwilliams-abuse-power-11639432939.

2. All records, including any drafts, that contain, reference, discuss, or otherwise relate
to an email sent by one or more FDIC directors requesting, instructing, or otherwise
concerning the review or mark up of a request for information concerning bank
mergers that occurred on or about November 16, 2021. For context, this
communication is referenced in the same article cited above. For purposes of this
request, please include both the referenced communications between Chairman
McWilliams and Board Member Michael Hsu and all records relating to what the
article cited above describes as a “joint letter instructing FDIC staff to mark up their
original document instead.” Note, while this request includes the referenced letter, it
is broader than just this letter and also includes all records referencing this letter,

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including those created after November 16.

3. All records, including any drafts, that contain, reference, discuss, or otherwise relate
to an email sent by Mr. Chopra, any of his deputies, or any other staff member associated
with Mr. Chopra purporting to circulate a vote on the document Mr. Chopra prepared
relating to bank mergers that was sent on or about November 26, 2021. For context, this
communication is referenced in the same article cited above.

4. All records, including any drafts, that contain, reference, discuss, or otherwise relate
to a communication from the FDIC General Counsel’s Office concerning whether the
aforementioned communication dated on or around November 26, 2021,
was a valid distribution or could be considered an official board action. For context, this
communication is referenced in the same article cited above. These communications
should likely be captured by paragraph 3 above. Their inclusion here is not meant
to imply otherwise.

5. All records of communications between the CFPB and the Office of Legal Counsel at
the Department of Justice.

6. All records of communications between the CFPB and Senator Elizabeth Warren,
persons working in the office of Senator Elizabeth Warren, or persons working for
the campaign of Senator Elizabeth Warren.

7. All records of communications between the CFPB and persons working for the
Senate Committee on Banking, Housing, and Urban Affairs.

8. All records referencing, discussing, or otherwise relating to the resignation of

FDIC Chairman Jelena McWilliams.

9. To facilitate the search, we suggest the following search terms:

 “Merger review process”;

 “Request for Information”;
 “Unprecedented”;
 “Inappropriate”;
 “Bank Merger Act”;
 “Bank merger transactions”;
 “Local communities”;
 “$100 billion;”
 “Bylaws”;
 “Official board action”;
 “Valid board distribution”;
 “Resign”; and/or
 “Resignation”.

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For the records requested with these criteria, we are specifically seeking records held by
the following persons, divisions, or offices:

 Director Rohit Chopra;

 The Immediate Office of the Director;
 The Legal Division;
 The Associate Director of Consumer Education and External Affairs;
 The Deputy Associate Director of Consumer Education and External Affairs;
 The Assistant Director of Stakeholder Management in the Division of Consumer
Education and External Affairs;
 The Office of Intergovernmental Affairs in the Division of Consumer Education and
External Affairs;
 The Office Legislative Affairs in the Division of Consumer Education and External
Affairs; and
 The Office of Public Affairs in the Division of Consumer Education and External
Affairs.

For purposes of this request, we are not seeking records that consist solely of news
articles.

8. The release of records responsive to FGI’s FOIA request will improve the public’s

understanding of what was widely reported as members of the Board of Directors of the

Federal Deposit Insurance Corporation (“FDIC”) – including the Director of the CFPB, who

serves on FDIC’s board –having circulated for a vote a rule making matter for bank mergers

while FDIC Chairman McWilliams was traveling abroad on business. The legality of this

maneuver has been questioned. See, e.g., Washington Post

https://www.washingtonpost.com/business/2022/01/01/trump-appointee-resigns-fdic/, CNN

https://www.cnn.com/2022/01/01/politics/fdic-jelena-mcwilliams-resignation/index.html,

Fox News https://www.foxnews.com/politics/fdic-chair-resigns-democrats-hostile-takeover-

agency, CNBC https://www.cnbc.com/2021/12/31/fdic-chair-intends-to-resign-in-february-

giving-biden-more-say-over-bank-regulation.html, Politico,

https://www.politico.com/news/2021/12/31/fdic-chair-jelena-mcwilliams-to-resign-526295,

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the Hill https://thehill.com/policy/finance/587835-fdic-chairman-appointed-by-trump-

resigns, among others.

9. The FDIC’s General Counsel, Legal Division, informed Director Chopra that his

“communication dated November 26, 2021, does not constitute a valid circulation for a

notional vote and cannot be recorded in the minutes of the proceedings of the Board of

Directors.” See FDIC Board Governance and Bylaws.

10. The procedural maneuvers by Director Chopra and other members of FDIC’s board

prompted Chairman McWilliams to write an op-ed accusing the members of orchestrating a

“hostile takeover.” The controversy did not abate and was heightened further when the

Chairman unexpectedly resigned.

11. A wide audience of persons is interested in what has been happening at the FDIC, as well as

the CFPB’s role in those events. Although the events initially received press coverage,

information about what precipitated the events remains limited. The records requested by

FGI will provide the public additional information about what transpired in this extraordinary

chain of events and give the public greater insight into the decision making at the CFPB, a

relatively new federal agency that has been subject to limited scrutiny.

12. By letter dated January 21, 2022, CFPB acknowledged receipt of FGI’s FOIA request. The

letter did not suggest that FGI’s request was deficient in any way.

13. The letter stated that although CFPB’s goal was to respond to a FOIA request within 20

business days, because FGI’s request required a search for records in separate CFPB offices,

CFPB would extend the due date for its response by 10 business days.

14. Including the extension, CFPB’s response was due within a total of 30 business days, i.e., on

or before March 7, 2022.

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15. Having heard nothing further from CFPB, on April 20, 2022, FGI sought an update from

CFPB about the status of its request.

16. CFPB responded that it had “gathered and reviewed the responsive records,” but because the

CFPB records included emails from other agencies, CFPB would need to consult with those

agencies about the release of those records.

17. In an effort to reach a compromise that would result in the beginning of the production of

documents, on April 20, 2022, FGI requested that CFPB produce records on a rolling basis

such that FGI would not have to wait for records that were ready for release while other

agencies conducted their review.

18. On April 20, 2022, CFPB acknowledged that a rolling release was a possibility and agreed to

keep FGI advised about when such a release would begin.

19. Having heard nothing further from CFPB, on May 9, 2022, FGI again sought an update on

the status of its request.

20. On May 9, 2022, CFPB responded that it “should be ready to start releasing documents in

about two weeks.”

21. CFPB advised FGI on May 20, 2022, that it was “nearly ready” to make a first production of

documents, and if FGI would waive its request with respect to a 300-page attachment that

was purportedly unrelated to FGI’s request, CFPB “would be able to make [its] first

production by next week.” This meant that the production was to begin no later than May

27, 2022, if FGI agreed to the waiver.

22. In an effort to reach a compromise that would result in the release of responsive records, FGI

agreed to waive production of the attachment if it were unrelated to the subject matter of

FGI’s request.

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23. Having received no documents by May 27, 2022, as promised by CFPB, on June 2, 2022,

FGI again asked CFPB for an update as to when production would begin.

24. As of the filing of this Complaint, CFPB has not provided an update or had any further

communication with FGI.

25. Absent the filing of this lawsuit, CFPB apparently will not comply with its obligations under

FOIA.

COUNT I
Wrongful Withholding Of Non-Exempt Responsive Records By Defendant
In Violation of FOIA, 5 U.S.C. § 552

26. FGI restates and incorporates by reference all the preceding paragraphs.

27. FGI properly requested records within the possession, custody, and control of CFPB.

28. Because CFPB is an “agency” subject to FOIA, it must release all responsive, non-exempt

records and provide legitimate reasons for withholding any responsive records. See 5 U.S.C.

§ 551(1), § 552(f)(1).

29. By failing to produce all responsive, non-exempt records, CFPB is wrongfully withholding

agency records subject to release under FOIA.

30. By failing to segregate exempt information in otherwise non-exempt records responsive to

FGI’s FOIA request, CFPB is wrongfully withholding agency records subject to release

under FOIA. 5 U.S.C. § (a)(8)(A)(ii)

31. Because CFPB has failed to meet its obligations under FOIA within the applicable statutory

time limits, FGI is deemed to have exhausted its administrative remedies. 5 U.S.C. § 552

(a)(6)(C)(i).

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32. Despite FGI’s good-faith efforts to work with CFPB to obtain records that are clearly in the

public interest and releasable under FOIA, it is apparent that absent this lawsuit CFPB will

not comply with its obligations under FOIA.

33. Accordingly, FGI is entitled to declaratory and injunctive relief requiring CFPB to promptly

produce all non-exempt responsive records, as well as reasonably segregable portions of

other responsive records, and to provide indexes justifying the withholding of any responsive

records or portions of responsive records under a claim of exemption.

REQUESTED RELIEF

FGI respectfully requests this Court:

(1) Take and maintain jurisdiction over this case until CFPB complies with the requirements of

FOIA and the orders of this Court.

(2) Order CFPB to produce all non-exempt records and non-exempt portions of other records

responsive to FGI’s FOIA request and provide indexes justifying the withholding of all or any

portion of responsive records under claim of exemption.

(3) Order CFPB to produce all non-exempt records within ten days, or within such other period

that the Court deems reasonable.

(4) Enjoin CFPB from continuing to withhold all non-exempt responsive records and portions of

records.

(5) Award the reasonable attorney’s fees and other litigation costs incurred in this action, as

provided for by 5 U.S.C. § 552(a)(4)(E).

(6) Grant FGI such other relief as this Court deems to be necessary and proper.

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Dated: July 14, 2022

Respectfully submitted,
FUNCTIONAL GOVERNMENT INITIATIVE
By Counsel:

/s/Richard W. Goeken
Richard W. Goeken
D.C. Bar # 441217
LUMEN LAW FIRM
1802 Vernon Street, Suite 2040
Washington, D.C. 20009

Counsel for the Plaintiff