MEMORANDUM AND ORDER
TREVOR
N. MCFADDEN UNITED STATES DISTRICT JUDGE
On
January 4, 2019, the Court enjoined the U.S. Department of
Health and Human Services (“Department”) from
releasing specific information in the Plaintiffs' Title X
grant applications but permitted the Department to release
the applications, subject to both agreed-upon and
Court-ordered redactions. See Order, ECF No.
47. The Plaintiffs appealed the Court's Order,
see Notice of Appeal to D.C. Circuit Court, ECF No.
45, [1]
and now seek an injunction pending appeal under Rule 62(c) of
the Federal Rules of Civil Procedure. Emerg. Mot. to Stay
(“Motion”), ECF No. 46. Specifically, they ask
the Court to order the Department not to disclose any part of
the Plaintiffs' grant applications, pending the
Plaintiffs' appeal of the Court's Order. See
Id. The Department opposes the motion. See
Def.'s Opp. to Pls.' Emerg. Mot. (“Def.'s
Opp.”), ECF No. 48. Based on the parties' briefing,
the relevant case law, and the entire record here, the Court
finds that a stay is not warranted and will deny the
Plaintiffs' motion.
In
deciding whether to grant a stay pending appeal, the Court
considers 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 v. U.S. Nuclear Regulatory Comm'n, 772
F.2d 972, 974 (D.C. Cir. 1985). It is “the movant's
obligation to justify the court's exercise of such an
extraordinary remedy.” Cuomo, 772 F.2d at 978.
The Plaintiffs do not have to make a strong showing on
“likelihood of success on the merits” if they can
make a strong showing about “likelihood of irreparable
harm.” People for the Am. Way Found. v. U.S.
Dep't of Educ., 518 F.Supp.2d 174, 177 (D.D.C.
2007).[2]
The
Department argues that the Court should deny the
Plaintiffs' motion because the Plaintiffs have not shown
that they are likely to succeed on appeal. See
Def.'s Opp. at 4. But the Plaintiffs argue that, given
their strong showings on the other factors, they must present
only “a substantial case on the merits.” Mot. at
5. Either way, this factor weighs in favor of the Department.
The
Plaintiffs' motion identifies no error in the Court's
oral opinion and Order. It is not enough to say that the case
“raises serious legal questions” about issues
such as FOIA Exemption 4, the Trade Secrets Act, an
agency's post hoc rationalizations, and reliance
on information outside the administrative record. Far from
establishing that they have a “substantial case on the
merits, ” the Plaintiffs fail to articulate how the
Court erred. And the Court cannot evaluate whether the case
on appeal is “substantial” when the Plaintiffs do
not say what the case is.
The
Plaintiffs' repeated references to trade secrets suggest
that they seek vindication there, an argument foreclosed by
circuit precedent. See Ctr. for Auto Safety v. Nat'l
Highway Traffic Safety Admin., 244 F.3d 144, 151 (D.C.
Cir. 2001) (explaining that D.C. Circuit caselaw narrowly
cabins trade secrets to information relating to the
“productive process” itself). And the Plaintiffs
now ask the Court to prohibit that Department from releasing
any part of their applications, even though
Plaintiffs' counsel conceded at oral argument that most
parts of the applications were disclosable under FOIA. In
other words, the stay they now seek would be more expansive
than the relief they had originally sought or ever tried to
justify. There is no justification for such a remedy. In any
event, in light of the Court's earlier in-camera
line-by-line review of the more than 400 pages at dispute,
the Court does not believe that the remaining disputed
portions do raise a substantial case on appeal.
The
other three factors weigh against injunctive relief, as well.
First, the Plaintiffs do not face irreparable harm without a
stay. Under the Court's Order, the Department will not
release their truly confidential information. To be sure,
once any information from the grant applications is publicly
released, any resulting damage to the Plaintiffs cannot be
undone, but the remaining disputed information is neither
very damaging nor close to the Exemption 4 disclosure line.
The
remaining disputed information is largely (1) skeletal
outlines of generic budget information, with heavy
redactions; and (2) background demographic information from
their Needs Assessments. The background demographic
information is publicly available, as evident in the
Plaintiffs' applications' own endnotes, so there is
little irreparable harm there, even if the Court were wrong
on the applicable caselaw. And the unredacted Needs
Assessments and budget language are far cries from the types
of confidential, proprietary information that could make or
break a grant application.
While
the Plaintiffs insist that they will face irreparable harm
from the “wrongful disclosure of trade secrets or
confidential information, ” see Mot. at 3, the
Department is right that such a claim “begs the
question” of what is a trade secret or confidential
information. See Def.'s Opp. at 9. The Court has
already determined that the disclosable information is not
confidential, thus disclosure will not cause an irreparable
harm. And as discussed above, the Plaintiffs do not
articulate how the Court was wrong in its resolution of these
issues.
As to
“harm to others, ” this factor again counsels
against the Plaintiffs' motion. The Plaintiffs argue that
“[p]articularly in the FOIA context, courts have
routinely issued stays.” People for the Am. Way
Found., 518 F.Supp.2d at 177. Perhaps so. But this is
not a routine FOIA case. Unlike garden-variety FOIA matters,
in which there is little urgency to disclosure, the entire
matter here has been handled in an expedited fashion
specifically because of looming grant application deadlines.
The
Department will be irreparably harmed if the Court stays its
prior Order. The Department plans to post the applications on
its website before the current grant application period
closes on January 14, 2019. The Department believes that
posting these applications as exemplars will attract a new
pool of quality grant applicants. Even if the Department
eventually prevailed on appeal, it would be irreparably
harmed by the delay because potential applicants would not be
able to review these documents during this specific grant
application round.
Not
only would the Department be harmed, the FOIA requesters
would also be harmed without disclosure of these grant
applications. The FOIA grants them the right to speedy and
robust disclosure of government-held information. They
undoubtedly hope to use the ...