The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Citizens for Responsibility and Ethics in Washington ("CREW") brought the above-captioned Freedom of Information Act ("FOIA") action seeking documents that CREW asserts Defendant, the Office of Administration ("OA"), Executive Office of the President ("EOP"), assembled and prepared relating to the White House's alleged loss of EOP e-mail records. OA subsequently moved to dismiss this action for lack of subject matter jurisdiction on the grounds that it was not, as a matter of law, an agency subject to the FOIA, and on June 16, 2008, this Court issued a Memorandum Opinion and Order granting OA's motion to dismiss. The Court's 39-page Memorandum Opinion acknowledged that "[t]he question OA's Motion presents is a close one, and is not easily resolved by reference to the limited body of D.C. Circuit case law addressing the agency status of units within the EOP." Citizens for Responsibility and Ethics in Washington v. Off. of Admin., Civil Action No. 07-964, Slip. Op. (D.D.C. Jun. 16, 2008) (hereinafter "Mem. Op.") at 2. Nevertheless, after a thorough review of the relevant case law and the evidence proffered by the parties, the Court concluded that OA is not an agency subject to the FOIA, see generally id., and noted that its conclusion "obviate[d] OA's obligation to comply with CREW's FOIA request," id. at 2. The Court's conclusion that OA is not an entity subject to the FOIA was a strict legal one, based upon the relevant case law and the evidence proffered by the parties. The Court was not called upon to--and in no way did--address the allegations underlying CREW's FOIA request regarding the alleged loss of White House e-mails.
CREW appealed this Court's June 16, 2008 Memorandum Opinion and Order, and has now brought a Motion for Stay Pending Appeal, requesting that the Court "stay its Order of June 16, 2008, to require defendant to retain all documents potentially responsive to CREW's two [FOIA] requests at issue pending the resolution of plaintiff's appeal." CREW Mot. for Stay at 1. Pursuant to the expedited briefing schedule entered by the Court, OA has filed an Opposition to CREW's Motion, and CREW has file a Reply. Much of the parties' briefing focuses upon potential harms that may befall either party at the conclusion of the current presidential administration, and the Court concludes below that it is premature to attempt to balance those harms at this point in time. Instead, upon a searching review of the parties' briefs, the relevant legal authority, and the entire record herein, the Court shall GRANT-IN-PART and DENY-IN-PART CREW's  Motion for Stay Pending Appeal. Specifically, in the Order accompanying this Memorandum Opinion, the Court shall order OA to preserve all records in its possession or under its custody or control that are potentially responsive to CREW's FOIA requests, and shall further order OA not to transfer any such records out of its custody or control without leave of this Court, pending the resolution of CREW's expedited appeal or January 5, 2009, whichever event is earlier. If CREW's appeal has not been resolved by January 5, 2009, CREW may, at that time, file a renewed motion for stay pending appeal.
The factors the Court considers in determining whether a stay pending appeal is warranted are:
(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. To justify the granting of a stay, a movant need not always establish a high probability of success on the merits. Probability 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.
Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985); Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); see also D.C. Circuit Handbook of Practice and Internal Procedures Part VIII(a) (2003).*fn1
It is "the movant's obligation to justify the court's exercise of such an extraordinary remedy." Cuomo, 772 F.2d at 978; see also Twelve John Does v. District of Columbia, Civ. A. No. 80-2136, 1988 WL 90106, at *1 (D.D.C. Aug. 4, 1988) ("[a]n indefinite stay pending appeal is an extraordinary remedy, and is to be granted only after careful deliberation has persuaded the Court of the necessity of the relief") (citing Virginia Petroleum Jobbers, 259 F.2d at 925). Generally, a stay pending appeal "is preventative, or protective; it seeks to maintain the status quo pending a final determination of the merits of the suit." Holiday Tours, 559 F.2d at 844.
As noted above, the Court's conclusion that OA is not an "agency" pursuant to the FOIA obviated OA's obligation to comply with CREW's FOIA request. Mem. Op. at 2. In addition, because "the coverage of the [Federal Records Act ("FRA")] is coextensive with the definition of 'agency' in the FOIA," the Court's conclusion affirmed the position OA had taken since August 2007 that its records were subject to the Presidential Records Act ("PRA"), rather than the FRA. Armstrong v. EOP, 90 F.3d 553, 556 (D.C. Cir. 1996) ("no record is subject to both the FRA and the PRA"). Under the PRA, at the conclusion of President George W. Bush's second term of office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, [his] Presidential records," and shall "deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States." 44 U.S.C. § 2203(f)(1)-(2). It is this transition of records at the end of President Bush's second term of office that the parties are most concerned about.
For the duration of his term of office, President Bush must take all steps necessary to ensure that Presidential records are maintained as such. Id. § 2203(a). Nevertheless, the President may dispose of Presidential records "that no longer have administrative, historical, informational, or evidentiary value if -- (1) [he] obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records; and (2) the Archivist states that he does not intend to take any action under subsection (e) of this section." Id. § 2003(c). In turn, subsection (e) requires the Archivist to consult with Congress "with respect to any proposed disposal of Presidential records whenever [the Archivist] considers that -- (1) these particular records may be of special interest to the Congress; or (2) consultation with the Congress regarding the disposal of these particular records is in the public interest." Id. § 2203(e). Further, if the Archivist notifies the President that he does intend to take action under subsection (e), the President may dispose of Presidential records if copies of the disposal schedule are submitted to Congress as required by the PRA. Id. § 2203(d).
While CREW's Motion seeks only one form of relief--an order requiring OA to retain all documents potentially responsive to CREW's FOIA requests pending the resolution of CREW's expedited appeal--the PRA and the parties' briefs make clear that such an order would have two very different consequences. During the remainder of President Bush's term of office, such an order would essentially extend this Court's January 25, 2008 Order, which required OA to "preserve all records, no matter how described, currently in its possession or under its custody or control, which are potentially responsive to CREW's April 16, 2007 and April 18, 2007 FOIA requests," and further ordered OA not to "transfer any potentially responsive records out of its custody or control without leave of this Court," Docket No.  (hereinafter the "Preservation Order"). Significantly, OA is not opposed to preserving the documents potentially responsive to CREW's FOIA requests for the remainder of President Bush's second term of office, but maintains that the assurances of its attorneys that such documents will be preserved should be sufficient to satisfy both CREW and the Court. OA Opp'n at 2. CREW is not satisfied with such assurances, and the Court addresses this issue below.
The parties are much more sharply divided with respect to the potential harms that might arise absent the stay CREW seeks (according to CREW), or as a result of such a stay (according to OA), at the conclusion of President Bush's second term of office, when his Presidential records will be transferred to the National Archives and Records Administration ("NARA"). That transition, however, will not occur until at least January 20, 2009, when President Bush leaves office, and it is well-settled that "[i]njunctive relief 'will not be granted against something merely feared as liable to occur at some indefinite time.'" Wisconsin Gas Company v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)). As such, the Court concludes that it is premature to consider the consequences that may result from the transition between administrations that is still over six months away, and to attempt to balance, at this time, the four factors relevant to CREW's request for a stay pending its expedited appeal based on the potential future harms the parties raise. Instead, the Court limits its consideration of those factors below to evaluating the situation as it exists for the next six months, i.e., while President Bush remains in office. CREW has indicated that it intends to seek expedition of its appeal before the D.C. ...