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People for the American Way Foundation v. United States Dep't of Education

October 29, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


On September 26, 2007, the Court ordered Defendant United States Department of Education ("DOED") to release certain documents sought by Plaintiff People for the American Way Foundation ("PFAWF") under the Freedom of Information Act ("FOIA"). The DOED now seeks a stay of that Order pending appeal. PFAWF does not oppose the stay, but asks the Court to condition it to prevent unnecessary delay. After reviewing the Parties's submissions, history of the case, relevant case law and statutory authority, the Court shall GRANT Defendant's [36] Motion for a Partial Stay of the Court's September 26, 2007 Order, subject to the limits and conditions set forth below.


PFAWF filed the instant FOIA action seeking documents related to a federally-funded school voucher program in the District of Columbia. See People for the Am. Way Found. v. Dep't of Educ., Civ. A. No. 05-751, 2007 U.S. Dist. LEXIS 70894 at *1 (D.D.C. Sep. 26, 2007). Congress created the program on January 23, 2004, "to provide low-income parents residing in the District of Columbia . . . with expanded opportunities for enrolling their children in higher-performing schools in the District of Columbia." Public Law No. 108-99, the Consolidated Appropriations Act of 2004, Div. C, Title III, § 302(7). PFAWF characterizes the program as "a highly controversial, federally-funded pilot voucher program . . . under which public monies are used to pay for low-income children to attend religious and other private schools." Pl.'s Resp. at 3-4. PFAWF claims that timely access to the documents at issue are essential not only because "voucher advocates have repeatedly sought [the program's] expansion and extension in Congress," but also because the documents are "vital to the ongoing debate over these issues, not only as it pertains to this program but also to efforts by voucher proponents to enact federally-funded voucher programs nation-wide." Id. at 4.

On September 26, 2007, the Court ordered the DOED to release certain categories of documents associated with the program no later than October 19, 2007, and to provide a new Vaughn index with respect to a smaller subset of documents by November 16, 2007. See People for the Am. Way Found., 2007 U.S. Dist. LEXIS 70894 at *35-*37. The DOED seeks a stay of that Order in the instant [36] Motion for a Partial Stay, filed on October 4, 2007. See Fed. R. Civ. P. 62(c) ("the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party"). The DOED argues that the Court-imposed deadline of October 19, 2007, for release of the documents "does not afford sufficient time for the government to determine whether an appeal will be taken . . . Therefore, [the DEOD's] argument on the merits would become moot even before it could appeal the decision." Def.'s Mot. at 2. PFAWF filed a [37] Response on October 15, 2007, agreeing that a stay is necessary to prevent the DOED from losing "its ordinary right to appeal," but asking the Court to impose three conditions on the DOED:

(1) The DOED must disclose the documents by November 26, 2007, unless it has filed a notice of appeal by that date;

(2) If the DOED notices an appeal, the DOED must petition the Court of Appeals for expedited consideration of the appeal within ten days of that filing; and

(3) Regardless of whether expedited consideration of the appeal is granted, the DOED must not seek any extensions of the briefing schedule on appeal.

See Pl.'s Resp. at 1-2. On October 18, 2007, the DOED filed a [38] Reply suggesting that all of PFAWF's proposed conditions were unreasonable. Def.'s Reply at 1-2.


A Party who moves for a stay pending appeal bears the burden of showing the balance of four factors weigh in favor of the stay: (1) the likelihood that it will prevail on the merits of the appeal; (2) the likelihood that it 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 a stay. Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985). A party does not necessarily have to make a strong showing with respect to the first factor (likelihood of success on the merits) if a strong showing is made as to the second factor (likelihood of irreparable harm). Id. ("[p]robability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa"). Ultimately, a court must weigh the factors depending on the circumstances of the particular case. See, e.g., Ctr. for Int'l Envtl. Law v. Office of the United States Trade Representative, 240 F. Supp. 2d 21, 23 (D.D.C. 2003) ("The remaining two factors -- potential harm to plaintiffs and other individuals or to the public interest if a stay is granted -- argue against a stay but ultimately do not outweigh defendants' showing of a substantial case on the merits and irreparable harm from disclosure").


The Parties in the instant proceeding agree that a stay is necessary to avoid irreparable injury to the DOED by having to release documents prior to having the opportunity to seek meaningful appellate review. Particularly in the FOIA context, courts have routinely issued stays where the release of documents would moot a defendant's right to appeal. See, e.g., John Doe Agency, et al. v. John Doe Corp., 488 U.S. 1306, 1308-09 (1989) (Marshall, J., in chambers) (issuing stay in FOIA action and observing that disclosure of documents would moot defendant's ability to appeal, thereby resulting in irreparable injury); Providence Journal Co. v. Fed. Bureau of Investigation, 595 F.2d 889, 890 (1st Cir. 1979) (issuing stay in FOIA action because "Appellants' right of appeal here will become moot unless the stay is continued pending determination of the appeals. Once the documents are surrendered pursuant to the lower court's order, confidentiality will be lost for all time."); Center for Int'l Envtl. Law, 240 F. Supp. 2d at 22 (D.D.C. 2003) (issuing limited stay in FOIA action "because disclosure of the documents in question will render any appeal moot"). Consistent with the cases identified above, and particularly where, as here, the Parties agree that disclosure of the documents would deny the DOED its "ordinary right to appeal," Pl.'s Resp. at 1, the Court finds that a failure to grant a stay in the instant case would cause irreparable harm to the DOED.

Given that both Parties agree that a stay is warranted, and given the Court's finding that the DOED would suffer irreparable harm in the absence of a stay, the Court also finds that these considerations outweigh any countervailing interests. The Court recognizes that the public has a strong interest in the prompt release of these documents, as they concern "a highly controversial, federally-funded pilot voucher program" subject to "ongoing debate." Pl.'s Resp. at 3-4. The Court also recognizes PFAWF suffers some harm from the stay, as it has been "more than three years since PFAWF submitted its first [FOIA] requests for documents." Id. at 1. These countervailing considerations convince the Court that it should issue a stay with certain limits and conditions that ensure the stay is not unnecessarily lengthy. See Ctr. for Int'l Envtl. Law, 240 F. Sup. 2d at 23 n.1 ("[i]nsofar as the Court's ...

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