ANTHONY HERMAN 

General Counsel 

LISA J. STEVENSON 

Deputy General Counsel – Law 

DAVID KOLKER 

Associate General Counsel 

ADAV NOTI 

Acting Assistant General Counsel 

ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Facsimile: (202) 219-0260 

CHRISTOPHER A. CROFTS 

United States Attorney 

NICHOLAS VASSALLO 

Assistant United States Attorney 

Post Office Box 668 

Cheyenne, WY 82002-0668 

Telephone: (307) 772-2124 

Facsimile: (307) 772-2123 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

FREE SPEECH, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 2:12-127-SWS 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) OPPOSITION 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL

Case 2:12-cv-00127-SWS Document 50 Filed 10/23/12 Page 1 of 5
Pursuant to the Court’s Order of October 19, 2012 (Docket No. 48), defendant Federal 

Election Commission respectfully submits this memorandum in opposition to plaintiff’s Motion 

for Injunction Pending Appeal (Docket No. 46). On October 3, 2012, this Court denied 

plaintiff’s motion for a preliminary injunction against the Commission’s enforcement of certain 

campaign-finance regulations and policies. (Docket Nos. 41-42.) On October 19, plaintiff filed 

(1) a notice of appeal regarding the Court’s decision, and (2) the instant motion seeking an 

injunction during the pendency of that appeal. The motion should be denied because plaintiff 

has failed to meet the heavy burden required to justify an injunction pending an appeal of the 

denial of a preliminary injunction. 

Plaintiff correctly notes that “the standards for an injunction on appeal are the same as 

those for preliminary injunctions.” (Pl.’s Mot. for Inj. Pending Appeal at 1.) Although 

plaintiff’s motion cites Federal Rule of Appellate Procedure 8(a)(1)(C), it appears to be made 

under Federal Rule of Civil Procedure 62(c), which governs any injunction pending an appeal 

“from an interlocutory order . . . that . . . grants, dissolves, or denies an injunction” — i.e., the 

relief sought here. District courts within the Tenth Circuit apply a four-part test for motions 

under Rule 62(c): 

To obtain such an injunction, the Plaintiff must show: (i) a strong position 

on the merits of the appeal; (ii) irreparable injury if an injunction pending 

appeal is denied; (iii) that an injunction would not substantially harm the 

Defendant; and (iv) that an injunction is not adverse to the public interest. 

Malone v. Mukasey, Civ. No. 08-01795, 2009 WL 4268057, at *1 (D. Colo. Nov. 20, 2009) 

(citing Secs. Investor Prot. Corp. v. Blinder, Robinson & Co., 962 F.2d 960, 968 (10th Cir. 

Case 2:12-cv-00127-SWS Document 50 Filed 10/23/12 Page 2 of 5
2 

1992)); see also, e.g., In re Adoption of C.D.K., Civ. No. 2:08-490, 2009 WL 1743765, at *3 (D. 

Utah June 18, 2009) (same); Sisters of Mercy Health Sys. v. Kula, Civ. No. 05-115, 2006 WL 

2090090, at *2 (W.D. Okla. July 25, 2006) (same); Waste Connections of Kan., Inc. v. City of 

Bel Aire, 191 F. Supp. 2d 1253, 1254 (D. Kan. 2002) (same). This is identical to the preliminary 

injunction standard. Hillsdale Envtl. Loss Prevention, Inc v. U.S. Army Corps of Engineers, Civ. 

Nos. 10-2008, 10-2068, 2011 WL 3847383, at *1 (D. Kan. Aug. 26, 2011) (citing Winter v. 

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Thus, where the issue to be decided on 

appeal is the grant or denial of a preliminary injunction, the burden on a party seeking an 

injunction pending appeal is a heavy one because the party “has already lost the initial 

determination [regarding a] preliminary injunction and the factors are similar.” O’Brien v. 

Appomattox Cnty., Civ. No. 02-43, 2002 WL 31663226, at *1 (W.D. Va. Nov. 15, 2002) (citing 

11 Wright, Miller & Kane, Federal Practice and Procedure § 2904 at 503-04, 513-14 (1995)). 

 Plaintiff’s cursory motion fails to meet this high standard. In denying plaintiff’s motion 

for a preliminary injunction, this Court necessarily determined that plaintiff failed to meet its 

burden under the four-part Winter test. The Court specifically held that plaintiff had not 

demonstrated a likelihood of success on the merits of its case under the first prong of that test, 

and plaintiff offers no new support here but instead merely incorporates by reference the 

arguments this Court has already rejected. Because the Rule 62(c) factors are identical to the 

preliminary injunction standard, the Court’s prior ruling is dispositive of plaintiff’s present 

motion. 

Case 2:12-cv-00127-SWS Document 50 Filed 10/23/12 Page 3 of 5
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For the foregoing reasons, plaintiff’s motion for an injunction pending appeal should be 

denied. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

David Kolker 

Associate General Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Erin Chlopak

Erin Chlopak 

Attorney 

Counsel for Defendant 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463

 

Christopher A. Crofts 

United States Attorney 

/s/ Nicholas Vassallo

Nicholas Vassallo 

Assistant United States Attorney 

Dated: October 23, 2012 

Case 2:12-cv-00127-SWS Document 50 Filed 10/23/12 Page 4 of 5
CERTIFICATE OF SERVICE 

 I hereby certify that on October 23, 2012, the foregoing will be filed electronically with 

the Clerk of Court through the Court’s ECF system and served by electronic filing on the 

following recipients: 

John B. Speight 

4021 Snyder 

Cheyenne, WY 82001 

jbspeight@gmail.com 

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomas Avenue, Suite 201 

Cheyenne, WY 82001 

Stephen.klein@wyliberty.org 

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

benjamin.barr@gmail.com 

/s/ Erin Chlopak 

Erin Chlopak 

Case 2:12-cv-00127-SWS Document 50 Filed 10/23/12 Page 5 of 5