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.
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.
McGregor's basic claims in its Complaint were that the Committee had failed to follow the proper informal rulemaking procedure required by the Administrative Procedure Act, 5 U.S.C. § 553(b)-(c) (1977); that the Committee had failed to ground its Final Rule on relevant fact; and that the Committee violated the JWOD Act by acting as an instrument of the NIB and adding items to the Procurement List already manufactured by private businesses. See McGregor, 802 F. Supp. 519, 523-528. Following the filing of its Complaint, McGregor also filed for a preliminary injunction of the enforcement of the Committee's ruling pending resolution of cross motions for summary judgment. Judge Revercomb granted temporary injunctive relief on April 2, 1992. See McGregor Printing Corp. v. Ira L. Kemp, et al., No. 91-3255, 1992 U.S. Dist. LEXIS 6717, at *23 (D.D.C. 1992). On September 30, 1992, this Court denied plaintiff's Motion for Summary Judgment and granted summary judgment for defendants, finding that the Committee's ruling had complied with the relevant administrative and statutory procedures. See McGregor, 802 F. Supp. at 529.
Plaintiff now seeks a stay of our September 30, 1992 Order pending its appeal of that decision.
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 ...