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Dunlap v. Presidential Advisory Commission On Election Integrity

United States District Court, District of Columbia

June 21, 2019




         Defendants have appealed the Court's Order that they must produce “[e]mails discussing potential Commission members” pursuant to the Court's preliminary injunction. Order, ECF No. 64, at 3. Presently Defendants move for a stay of their obligation to produce those emails, while briefing of other remaining issues continues.

         Upon consideration of the briefing, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [68] Renewed Motion for a Partial Stay Pending Appeal. The Court shall continue to STAY Defendants' obligation to produce the emails discussing potential Commission members pending resolution of Defendants' appeal.

         I. BACKGROUND

         The Court's prior decisions describe the short life of the Presidential Advisory Commission on Election Integrity and most of the pertinent proceedings in this litigation. See Dunlap v. Presidential Advisory Comm'n on Election Integrity, 286 F.Supp.3d 96 (D.D.C. 2017) (Dunlap I); Dunlap v. Presidential Advisory Comm'n on Election Integrity, 319 F.Supp.3d 70 (D.D.C. 2018) (Dunlap II).

         To briefly summarize, the Court issued a preliminary injunction compelling Defendants to produce certain documents to Plaintiff, who at that time was a member of the Commission and had not received information to which he was entitled. After the Commission was disbanded, the Court denied Defendants' request for reconsideration of the preliminary injunction. The Court also found that Defendants were not entitled to a stay of the Court's preliminary injunction pending appeal.

         Defendants then complied in part with the Court's preliminary injunction compelling production of certain documents. A number of sticking points remained. Defendants raised certain categories of documents to which they did not consider that Plaintiff was entitled under the Court's orders. Disputes about most of those categories have since been resolved. One of the lingering issues is whether Defendants must produce certain emails about potential Commission members.

         When that issue ripened, the Court determined on January 28, 2019, that Plaintiff was entitled to these emails to vindicate rights that flowed from the Court's earlier decisions. See Order, ECF No. 64, at 3. The Court reasoned as follows:

“Emails discussing potential Commission members (e.g., Vaughn Index entry Nos. 361, 167)”: As Plaintiff observes, discussions concerning additional Commission members took place while he was a commissioner, involved one or more other commissioners, and did not solicit his input. [Pl.'s Resp. to Defs.' Notice of Categories of Withheld Docs., ECF No. 59, ] at 4. Previously, the Court refrained from ordering that Plaintiff be given equal opportunity to participate in the Commission, because the production of documents pursuant to the preliminary injunction would facilitate his full participation moving forward. Dunlap I, 286 F.Supp.3d at 109; see also [Dunlap II, 319 F.Supp.3d at 87 n.6] (discussing Cummock v. Gore, 180 F.3d 282, 293 (D.C. Cir. 1999) (Rogers, J., concurring)). But now that the Commission has terminated, the production of these documents is necessary to remedy deficiencies in Plaintiff's opportunity to fully participate during the life of the Commission. Production of this quasi-procedural category of documents could illuminate ways in which Plaintiff's substantive contributions were inhibited at the time, and he could respond accordingly after the fact. See Dunlap II, 319 F.Supp.3d at 88-89.

         Order, ECF No. 64, at 3. Defendants have appealed the Court's Order to produce these emails. Notice of Appeal, ECF No. 67. Pending the Court's resolution of their (renewed) motion to stay that production obligation, the Court granted a limited stay. Min. Order of Mar. 4, 2019.[2] In order to sharpen the parties' briefing, the Court shared its initial impression of the motion:

Defendants have made a viable claim of irreparable damage if they were compelled to produce these emails pending appeal. Defendants have already produced a number of other materials, and the Court has set a briefing schedule regarding the production of internal records of the Executive Office of the President and the Office of the Vice President.

         Min. Order of Mar. 4, 2019. The Court instructed Plaintiff to focus on “the prejudice, if any, that he would suffer” as a result of a stay pending appeal. Id.

         After briefing concluded, the Court requested ex parte submission of the emails at issue for the Court's in camera review.[3] Min. Order of May 22, 2019; Defs.' Notice of Delivery for in Camera Inspection, ECF No. 76. Review of those emails raised a question about the timeline of Commission appointments, so the Court invited or permitted further filings. See Min. Orders of June 11, 2019, and June 13, 2019; Notice of Filing, ECF No. 79; Resp. to Defs.' June 13, 2019 Notice of Filing, ECF No. 83; Defs.' Resp. to Pl.'s June 14, 2019, Filing, ECF No. 81-1.

         The only issue presently before the Court is whether its Order to produce emails concerning potential Commission members should be stayed pending Defendants' appeal. That issue is ripe for resolution. Having reviewed the emails, the Court may now make a more informed decision.


A party that moves for a stay pending appeal bears the burden of showing that the balance of four factors weighs in favor of the stay:
(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) (per curiam); see also Id. at 978 (“On a motion for stay, it is the movant's obligation to justify the court's exercise of such an extraordinary remedy.”); Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1263-64 (D.C. Cir. 2007) (Randolph, J., concurring) (citing Cuomo as demonstrative of the Court of Appeals' “long-standing principles governing stays”).

         “The test for a stay or injunction pending appeal is essentially the same” as the test for a preliminary injunction, “although courts often recast the likelihood of success factor as requiring only that the movant demonstrate a serious legal question on appeal where the balance of harms strongly favors a stay[.]” Al-Anazi v. Bush, 370 F.Supp.2d 188, 193 & n.5 (D.D.C. 2005) (citing United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003), abrogated on othergrounds, Mohawk Indus., Inc. v. Carpenter, 558 ...

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