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MCGREGOR PRINTING CORP. v. KEMP

January 27, 1993

McGREGOR PRINTING CORPORATION, Plaintiff,
v.
IRA L. KEMP, et al., Defendants.



The opinion of the court was delivered by: JOHN H. PRATT

 In this action, plaintiff McGregor Printing Corporation ("McGregor") has moved for a stay of this Court's Order of September 30, 1992, McGregor Printing Corp. v. Kemp, et al., 802 F. Supp. 519 (D.D.C. 1992), pending appeal of that decision. For the reasons given below, we deny plaintiff's motion.

 I. Background

 On December 19, 1991, McGregor filed its Complaint for Declaratory and Injunctive Relief, challenging an informal rulemaking decision of the Committee for Purchase from the Blind and Other Severely Handicapped ("Committee"). Pursuant to the Javits-Wagner-O'Day Act ("JWOD Act"), 41 U.S.C. §§ 46-48c (1987 & Supp. 1992), the Committee is authorized to compile a "Procurement List" of certain commodities and services which the government should procure solely from workshops operated by blind and handicapped persons. 41 U.S.C. § 47(a)(1). In selecting these products, the Committee is advised by the National Industry for the Blind ("NIB"), a private, non-profit organization designated "to represent the workshops for the blind." 41 C.F.R. § 51-3.1(a)(1990).

 In August 1991, the Committee decided to add to the "Procurement List" a type of tabulating machine paper, NSN 7530-00-800-0996 ("0996"). See 56 Fed. Reg. 40,873 (1991); Administrative Record ("AR") at 151-152. At the time of this rulemaking, McGregor was one of two private suppliers of 0996 for the government and had supplied the government with 0996 for twenty years. Following the publication of the Committee's final rule, McGregor petitioned for reconsideration of its ruling. See AR at 156-165. The Committee denied the petition. See AR at 192-197. McGregor then filed with this Court its Complaint for Declaratory and Injunctive Relief against the Committee, its Chairman Ira L. Kemp, and the NIB.

 Plaintiff now seeks a stay of our September 30, 1992 Order pending its appeal of that decision.

 II. Discussion

 In requesting a stay pending appeal, "it is the movant's obligation to justify the court's exercise of such an extraordinary remedy." Cuomo v. United States Nuclear Regulatory Comm., 772 F.2d 972, 978 (D.C. Cir. 1985). In considering such a motion, the court must consider the following four factors:

 (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving 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 interest in granting the stay.

 Cuomo, 772 F.2d at 974 (citing Washington Metro. Area Transit Comm. v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977)).

 Even where the moving party has not established a likelihood that it will prevail on the merits, a court may decide to stay enforcement of its ruling if it finds that plaintiff has presented a "serious legal question[]" and that the other three factors weigh heavily in plaintiff's favor. Holiday Tours, 559 F.2d at 844.

 An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant.

 Id. See also Cuomo, 772 F.2d at 974 ("A stay may be granted with either a high probability of success and ...


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