UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARIZONA FAMILY HEALTH PARTNERSHIP et al.,

Plaintiffs, Case No. 1:18-cv-02581 (TNM) v.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendant.

MEMORANDUM AND ORDER

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 Court retains jurisdiction over the Plaintiffs’ motion for injunctive relief pending appeal. See McCammon v. United States,

, 45 n.2 (D.D.C. 2008). (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,

, 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.,

(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.

2 The Court assumes arguendo that Winter v. Nat. Res. Def. Council, Inc.,

(2008), did not make “likelihood of success” a free-standing requirement for injunctive relief. Otherwise, the Plaintiffs face an even steeper hill to climb.

2 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.,

(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

3 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.,

. 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.

4 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 information for their upcoming applications. For them, justice delayed is justice

denied.

The Court rejects the Plaintiffs’ resurrected argument that a stay is in the

Department’s interest because it would receive better applications without this disclosure.

In a reverse-FOIA case such as this one, the Court will defer to an agency’s own

determination that disclosure is in its interest. See Ctr. for Pub. Integrity v. Dep’t of

Energy,

(D.D.C. 2002); see also Hercules, Inc. v. Marsh,

(4th Cir. 1988). The Plaintiffs wisely jettisoned this argument at the summary

judgment motions hearing; it has not gained persuasive value since then.

The Plaintiffs do not want potential grant applicants to see their past applications

during this competitive process. For them, any information from their “award-winning”

applications that is in the public domain may help competitors to their detriment. But the

Court has determined that release, subject to significant redactions, is appropriate.

“[D]isclosure, not secrecy, is the dominant objective” of FOIA. See U.S. Dep’t of Air

Force v. Rose,

, 360–61 (1976). FOIA’s exemptions are construed

narrowly,

at 361–62, and the party seeking to avoid disclosure—here the Plaintiffs—

has the burden of proving that the circumstances justify non-disclosure.

(a)(3). The Plaintiffs have not met this burden as to the remaining disputed

language.

5 Public interest also favors denying the Plaintiffs’ motion. There is a national

interest in transparency of government operations, which favors the Department. As the

Court has explained, “[t]he public, including competitors who lost the business to the

winning bidder, is entitled to know just how and why a government agency decided to

spend public funds as it did; to be assured that the competition was fair; and, indeed, even

to learn how to be more effective competitors in the future.” Martin Marietta Corp. v.

Dalton,

(D.D.C. 1997).

The Plaintiffs argue that there is a public interest in protecting the competitive

process, and the Court agrees. But the Nation is best served by rigorous competition for

Title X grants, and the Department’s desire to help other potential applicants develop

more robust applications is laudable. To do so, the redacted grant applications must be

released well before January 14, 2019. In granting its permanent injunction, the Court

found that this prong supports the Department, and the Court again finds that the public

interest weighs against the Plaintiffs.

***

6 “On a motion to stay, it is the movant’s obligation to justify the court’s exercise of

such an extraordinary remedy,” see Cuomo, 772 F.2d at 978, and the Plaintiffs have not

done so.

For these reasons, it is hereby

ORDERED that the Plaintiffs’ Emergency Motion for Injunction Pending Appeal is

DENIED.

SO ORDERED.

This is a final, appealable Order. 2019.01.08 09:50:07 -05'00' Dated: January 8, 2019 TREVOR N. McFADDEN United States District Judge

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