United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
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.
consideration of the briefing,  the relevant legal authorities,
and the record as a whole, the Court GRANTS
Defendants'  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.
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)
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.
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.
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
âEmails 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.
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. 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.
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.
briefing concluded, the Court requested ex parte
submission of the emails at issue for the Court's in
camera review. 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.
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
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”).
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,