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"), a unit within the Executive Office of the President ("EOP"), assembled and prepared relating to the White House's alleged loss of EOP e-mail records. On June 16, 2008, this Court issued a Memorandum Opinion and Order granting OA's motion to dismiss this action for lack of subject matter jurisdiction on the grounds that, as a matter of law, it was not an agency subject to the FOIA. Citizens for Responsibility and Ethics in Washington v. Off. of Admin., 559 F. Supp. 2d 9, 11 (D.D.C. 2008) (CKK) (hereinafter "CREW I").
CREW subsequently appealed this Court's June 16, 2008 decision to the D.C. Circuit, and filed a Motion for Stay Pending Appeal before this Court, 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's Motion for Stay, Docket No.  at 1. On July 8, 2008, this Court issued an Order and accompanying Memorandum Opinion granting-in-part and denying-in-part CREW's request for a stay pending appeal. Citizens for Responsibility and Ethics in Washington v. Off. of Admin., 565 F. Supp. 2d 23 (D.D.C. 2008) (CKK) (hereinafter "Crew II"). Although much of the parties' briefing on the Motion for Stay Pending Appeal focused on the potential harms that may befall either party at the conclusion of the current presidential administration, the Court concluded that it was premature to consider the consequences that may result from the transition between administrations that was, at that time, over six months away. Id. at 27. The Court therefore limited its consideration of CREW's request for stay to the situation as it existed while President George W. Bush remained in office. Id. As to that time period, the Court concluded that, although it could not agree with CREW that there is a substantial likelihood that CREW will prevail on the merits on appeal, "the instant case is one in which '[a]n order maintaining the status quo is appropriate [because] a serious legal question is present,  little if any harm will befall other interested persons or the public and  denial of the order would inflict irreparable harm on the movant.'" Id. at 31 (internal citations omitted). Accordingly, the Court ordered OA to "preserve all records, no matter how described, currently in its possession or under its custody or control, which are responsive to CREW's April 16, 2007 and April 18, 2007 FOIA requests, and [to] not transfer any potentially responsive 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." Id. at 31 (emphasis added). If CREW's expedited appeal had not been resolved by January 5, 2009, however, the Court provided that CREW may, at that time, file a renewed motion for stay pending appeal. Id. at 31.
As of January 5, 2009, the D.C. Circuit had not yet resolved CREW's expedited appeal (nor had it yet done so as of the filing of this Memorandum Opinion), and, pursuant to this Court's July 8, 2008 Order, CREW filed a Renewed Motion for Stay Pending Appeal on January 6, 2009, (hereinafter "CREW's Motion"), that specifically addresses its request for a stay in the context of the pending transition between presidential administrations. Pursuant to the expedited briefing schedule entered by the Court, OA filed an Opposition to CREW's Motion on January 12, 2009 (hereinafter "OA's Opposition"), and CREW filed a Reply later that same day (hereinafter "CREW's Reply"). Upon a searching review of the parties' briefs, the relevant legal authority, and the entire record herein, the Court shall GRANT CREW's  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) (internal citations omitted) (emphasis in original); 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. 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 previously noted, 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. Crew II, 565 F. Supp. 2d at 26. 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. See 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 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 to the National Archives and Records Administration ("NARA") at the end of President Bush's second term of office with which the parties are concerned.
Under the terms of the Court's July 8, 2008 Order, OA was required (until the Order lapsed on January 5, 2009) to retain all documents potentially responsive to CREW's FOIA requests pending the resolution of CREW's expedited appeal and to ensure that any such potentially responsive documents were not transferred out of its custody or control without leave of this Court. Crew II, 565 F. Supp. 2d at 31-32. Significantly, OA has not been, nor is it currently, opposed to preserving those documents potentially responsive to CREW's FOIA requests. OA's Opp'n at 2, 5-6. To the contrary, OA represents to the Court that it has already identified and collected approximately 38 or 39 boxes of documents that it believes to be the universe of records potentially responsive to CREW's FOIA requests.*fn2 Id. at 5-6. OA further states that it "has properly labeled and segregated those 39 boxes for transfer to NARA, and NARA has agreed to keep those boxes segregated once they are transferred to NARA. NARA has further committed to store the OA boxes in the Washington, D.C. area under appropriate security, in a manner that will enable NARA and OA to readily retrieve them if necessary until this case is resolved. Morever, NARA has also agreed to 'promptly return these, and all other OA records to OA should it be determined that OA is an agency subject to the FOIA and/or the Federal Records Act.'" Id. at 6-7 (internal citations omitted). The parties sharply disagree, however, as to the potential harms that might arise absent an extension of the stay (according to CREW), or as a result of such an extension (according to OA), upon transfer of President Bush's records to NARA. OA maintains that the assurances of its attorneys that NARA will preserve and return the potentially responsive documents, if requested, should be sufficient to satisfy both CREW and the Court. See OA's Opp'n at 2. OA therefore asserts that CREW would not be harmed by transfer of the documents to NARA and that extension of the stay is thus unnecessary. See id. CREW is not satisfied with such assurances, and the Court now turns to the question of whether an extension of the stay issued in its previous July 8, 2008 Order is appropriate.
A. CREW's Appeal Presents a Serious Legal Question Ordinarily, "[t]he first, and most important, hurdle which the petitioners must overcome is the requirement that they present a strong likelihood of prevailing on the merits of their appeal." Am. Cetacean Soc. v. Baldridge, 604 F. Supp. 1411, 1414 (D.D.C. 1985). "Without such a substantial indication of probable success, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review." Virginia Petroleum Jobbers, 259 F.2d at 925. Under D.C. Circuit precedent, however, a "court is not required to find that ultimate success by the movant is a mathematical probability, and indeed,  may grant a stay even though its own approach may be contrary to the movant's view of the merits." Holiday Tours, 559 F.2d at 843. In particular, "[a]n 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. at 844. In such a situation, "[t]here is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success." Id.
The Court need not dwell on this question, as it has previously found that CREW's appeal presents a "serious legal question." Crew II, 565 F. Supp. 2d at 27-28. As the Court explained in its July 8, 2008 Order, which discussion is fully incorporated herein, although the Court cannot agree with CREW that there is a substantial likelihood that it will prevail on the merits of its appeal, the Court recognizes that the question of whether OA is an "agency" under the FOIA "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 with the EOP." Id. at 28 (internal quotation marks omitted). Neither party has directed the Court to any intervening changes in law that may affect this conclusion. Therefore, the Court shall proceed directly to consider whether the balance of the other factors relevant to CREW's request for a stay pending appeal favors the relief CREW seeks.
Before doing so, however, the Court pauses to address OA's contention that CREW's Motion in fact seeks to upset-as opposed to maintain-the status quo and is in actuality requesting, not a stay, but the "'extraordinary and drastic'" remedy of an injunction. See OA's Opp'n at 2-3. OA's characterization of CREW's request is incorrect. As the Court has previously explained, see Crew II, 565 F. Supp. 2d at 28-29, on January 25, 2008, this Court entered a Preservation Order requiring 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 ordering OA not to "transfer any potentially responsive records out of its custody or control without leave of this Court," Docket No. . OA was operating under that Order until the Court's June 16, 2008 Memorandum Opinion and Order released it from doing so, and has been again operating under that Order since it was effectively reinstated by the Court's July 8, 2008 Memorandum Opinion and Order. As OA fully concedes, it has, pursuant to the Court's Orders, already identified and segregated all documents it believes are potentially responsive to CREW's FOIA requests and is maintaining those documents in a segregated manner within OA's custody and control. As such, CREW's renewed request for a stay pending appeal ...