UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

OKLAHOMA CORRECTIONS 

PROFESSIONAL ASSOCIATION INC., 

a not for profit corporation; 

DAVID RAMSEY, individually; 

GLEN COLEMAN, 

 Plaintiffs-Appellees, 

v. 

PRESTON DOERFLINGER, Finance 

Secretary and Director, Oklahoma 

Department of Human Services, 

 Defendant-Appellant. 

No. 12-6238 

(D.C. No. 5:10-CV-01369-R) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges. 

 

 The Oklahoma Corrections Professional Association Inc. and two of its 

members (collectively, the OCPA), brought this 42 U.S.C. § 1983 action to challenge 

two statutory conditions that together barred OCPA’s participation in a voluntary 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 25, 2013

Elisabeth A. Shumaker 

Clerk of Court
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payroll-deduction program for public employees: participating organizations must 

consist solely of current public employees (exclusivity requirement) and have at least 

2,000 members (numerosity requirement). OCPA filed suit against the Director of 

the Oklahoma Department of Human Services in his official capacity, seeking 

equitable and declaratory relief forestalling enforcement of these conditions as well 

as a preliminary injunction to block its imminent removal from the program. The 

Director moved for summary judgment on the merits. In a single order the district 

court denied the Director’s motion and granted OCPA a preliminary injunction 

precluding the Director’s enforcement of the numerosity requirement and reinstating 

OCPA in the program from which it had by then been removed. The Director now 

appeals from the grant of the preliminary injunction. Exercising jurisdiction under 

28 U.S.C. § 1292(a)(1), we reverse for the reasons explained below. 

BACKGROUND, SCOPE OF APPEAL, AND DECISION UNDER REVIEW 

Oklahoma currently enables its employees to use voluntary payroll deductions 

(VPDs) to pay dues to “the Oklahoma Public Employees Association . . . or any other 

statewide association limited to state employee membership with a minimum 

membership of two thousand (2,000) dues-paying members.” Okla. Stat. tit. 62, 

§ 34.70(B)(5). The Director reads this provision to exempt the Oklahoma Public 

Employees Association (OPEA) from the exclusivity and numerosity conditions 

imposed on “any other statewide association.” In addition, the statute grandfathers in 

“[a]ny statewide association granted a payroll deduction prior to January 1, 2008,” 
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id., § 34.70(D), when the numerosity threshold was only 1,000 employees, see id., 

§ 7.10(B)(5) (2008).1

 This provision preserved participation in the VPD program by 

the Oklahoma State Troopers Association and the Communication Workers of 

America/State Employees, both of which have fewer than 2,000 members. But it 

does not apply to OCPA, which qualified for the VPD program in late 2009 and 

began participating in 2010, when its membership temporarily exceeded the 

2,000-member threshold. 

OCPA challenged the VPD program on three grounds: (1) the numerosity and 

exclusivity conditions precluding OCPA’s use of the program burdened its ability to 

secure funding for political activities compared to associations allowed to participate, 

resulting in discrimination on speech in violation of the First Amendment; (2) the 

exclusivity condition restricting the makeup of OCPA’s membership (but not that of 

the exempt OPEA) is a violation of OCPA’s associational rights under the First 

Amendment; and (3) the operative legislative amendments to the VPD program were 

enacted in violation of the single-subject rule in Article 5, § 57 of the Oklahoma 

Constitution. The scope of this appeal, however, is more limited in light of the 

nature and basis for the preliminary injunction under review. The district court did 

not enjoin enforcement of the exclusivity condition, so the associational-rights claim 

triggered by that restriction is not before us. Nor is the state constitutional claim, 

over which the district court declined to exercise supplemental jurisdiction. The 

 

1

 The statute was renumbered from § 7.10 to § 34.70 in 2009. 
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preliminary injunction relates solely to the numerosity requirement and the alleged 

speech discrimination it effects. 

The district court applied the traditional test for a preliminary injunction, 

requiring the movant to show “(1) it is substantially likely to succeed on the merits; 

(2) it will suffer irreparable injury if the injunction is denied; (3) its threatened injury 

outweighs the injury the opposing party will suffer under the injunction; and (4) the 

injunction would not be adverse to the public interest.” Beltronics USA, Inc. v. 

Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009).2

 The district 

court did not directly assess the first factor, but tacitly relied on its preceding analysis 

of the Director’s summary judgment motion on the merits. 

 

2

 The district court correctly left this test unmodified by collateral rules we have 

developed to heighten or relax the movant’s burden under certain circumstances. In 

particular, the district court properly deemed this a case of preserving rather than 

disturbing the status quo, so that critical consideration did not require enhancement 

of the standard. See generally O Centro Espirita Beneficiente Uniao Do Vegetal v. 

Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004) (en banc) (“[A] movant seeking a 

preliminary injunction which upsets the status quo must satisfy a heightened 

burden”), aff’d and remanded, 546 U.S. 418 (2006). “An injunction disturbs the 

status quo when it changes the last peaceable uncontested status existing between the 

parties before the dispute developed.” Beltronics, 562 F.3d at 1070-71 (internal 

quotation marks omitted). When the present dispute developed, OCPA had been an 

ongoing participant in the VPD program since early 2010, although it was terminated 

from the program before its motion for preliminary injunction was finally resolved. 

Thus, the injunction at issue simply returned the parties to the pre-litigation status 

quo. On the other hand, OCPA concedes it is not entitled to any relaxation of the 

preliminary injunction standard, because it is seeking to enjoin governmental action 

taken pursuant to a statutory scheme. See Aid for Women v. Foulston, 441 F.3d 1101, 

1115 (10th Cir. 2006). 
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It began that analysis by acknowledging “[t]he First Amendment prohibits 

government from abridging the freedom of speech; it does not confer an affirmative

right to use government payroll mechanisms for the purpose of obtaining funds for 

expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 129 S. Ct. 1093, 1096 

(2009) (emphasis added and internal quotation marks omitted). Ysursa held a ban on 

payroll deductions for union political action committees did not infringe First 

Amendment rights and hence was not subject to strict scrutiny. 129 S. Ct. at 1098. 

But the district court noted the ban in Ysursa was applied evenhandedly to all unions, 

see id. at 1099 n.3, while selective restrictions on speech implicate heightened 

scrutiny under the First Amendment, see, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 

2653, 2663-64 (2011); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 

130 S. Ct. 876, 898-99 (2010); Randall v. Sorrell, 548 U.S. 230, 246-47 (2006). As 

discussed above, Oklahoma’s VPD program is selectively denied to public-employee 

associations based on size of membership. While it is true this numerosity 

requirement generally applies to all associations, some are exempted by a grandfather 

provision and OPEA is favored with its own particularized exemption. The district 

court consequently held the program was subject to heightened scrutiny, which the 

court went on to conclude was not satisfied by the justifications offered by the 

Director for the numerosity requirement.3

 

 

3

 The district court did not decide whether the appropriate level of scrutiny was 

strict scrutiny—requiring a law to be “narrowly tailored” to achieve a “compelling 

(continued) 
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The district court’s assessment of the other injunction factors followed largely 

from this conclusion. The court found irreparable harm based on the presumption of 

such harm when First Amendment rights have been infringed, see Pac. Frontier v. 

Pleasant Grove City, 414 F.3d 1221, 1235-36 (10th Cir. 2005), bolstered by evidence 

submitted by OCPA regarding the vital role VPDs play in raising association funds. 

As for harm to the State, the court found the administrative burden of reinstating the 

VPD program for OCPA would be de minimus and noted the Director had not offered 

any evidence of other damage the injunction would occasion. Finally, the court 

concluded the injunction would not be adverse to the public interest, particularly as 

“it is always in the public interest to prevent the violation of a party’s constitutional 

rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012) (internal quotation 

marks omitted). 

ANALYSIS 

 The merit of OCPA’s challenge to the numerosity requirement is the lynchpin 

of this appeal. And the crux of that inquiry is the presence vel non of a cognizable 

First Amendment interest and the attendant level of scrutiny applied to the legislative 

 

interest”—applied in Citizens United to a ban on corporate expenditures for political 

speech, 130 S. Ct. at 898 (internal quotation marks omitted), or the somewhat laxer 

exacting scrutiny—requiring a law to be “closely drawn” to achieve a “sufficiently 

important interest”—applied in Randall to limits on political campaign contributions, 

548 U.S. at 247-48, or the intermediate scrutiny—requiring a law to be “drawn to 

achieve” a “substantial government interest”—applied in Sorrell to restrictions on 

commercial speech, 131 S. Ct. at 2667-68. The court concluded the VPD program 

could not be justified under any of these heightened standards. 
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judgment behind the requirement, i.e., if “the State has not infringed [OCPA’s] First 

Amendment rights, the State need only demonstrate a rational basis to justify the ban 

on [association] payroll deductions,” Ysursa, 129 S. Ct. at 1098. 

The district court recognized the First Amendment inquiry is affected but not 

controlled by Ysursa’s holding that a VPD program is effectively a subsidy for 

participants’ activities (including speech), which the State has no constitutional 

obligation to provide. In doing so, the court drew a salient distinction between VPD 

benefits evenhandedly and selectively bestowed, citing precedent applying 

heightened scrutiny to laws discriminately affecting speech. But there is a second 

distinction—between differential treatment of speakers and discrimination based on 

viewpoint—which moderates the force of the first in the context of speech subsidies. 

That is, while viewpoint discrimination always implicates First Amendment 

constraints, “speaker-based distinctions are permissible when the state subsidizes 

speech.” Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 646 (7th Cir. 2013) 

(emphasis added). As the Seventh Circuit explained in upholding a VPD program 

much like the program at issue here: 

Nothing in the Constitution requires the government to subsidize all 

speech equally. A government subsidy “that discriminates among 

speakers does not implicate the First Amendment unless it discriminates 

on the basis of ideas.” Leathers v. Medlock, 499 U.S. 439, 450 (1991); 

see also Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 557-58 

(1998) . . . . As Regan [v. Taxation with Representation of Wash., 

461 U.S. 540 (1983)] explained, legislative “selection of particular 

entities or persons for entitlement to this sort of largesse is obviously a 

matter of policy and discretion not [ordinarily] open to judicial 

review[.]” 461 U.S. at 549 (internal quotations omitted). Indeed, the 
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speech subsidy upheld in Regan discriminated on the basis of speaker—

veterans’ groups who engaged in lobbying could claim [tax exempt] 

status but other lobbying groups could not. Id. at 548-49; see also

[S. C. Educ. Ass’n v.] Campbell, 883 F.2d [1251,] 1255-56 [4th Cir. 

(1989)] (no First Amendment implications to statute that discriminated 

on the basis of speaker in authorizing payroll deductions for some 

public employee organizations but not others). Thus, that the state gave 

one category of public employees the benefit of payroll dues deduction 

does not run afoul of the First Amendment. 

Id. at 646-47 (parallel citations omitted) (third and fourth alterations in original). 

The particular combination of differential treatment based on speaker (as opposed to 

viewpoint) in connection with a subsidy for (as opposed to burden on) speech 

activities was not considered by the district court. The Supreme Court decisions it 

cited for heightened scrutiny involved burdens on speech,4

 which of course trigger 

such scrutiny—in pointed contrast to the Regan decision relied on by Walker, which 

upheld a speech subsidy by applying rational-basis scrutiny.5

 And, of course, 

 

4

 Citizens United involved a law prohibiting expenditures for political speech, 

see 130 S. Ct. at 886, Randall addressed a law limiting campaign contributions, 

548 U.S. at 236, 247-48, and Sorrell concerned a law restricting commercial speech, 

131 S. Ct. at 2663-64. 

5

 Regan upheld a law selectively subsidizing political speech by veterans 

organizations, whose tax-exempt status was preserved even if they engaged in 

lobbying efforts that would disqualify other charitable organizations. 461 U.S. at 

542, 550. The Court noted the permissibility of selective subsidies is “scarcely [a] 

novel principle[]. We have held in several contexts that a legislature’s decision not 

to subsidize the exercise of a fundamental right does not infringe the right, and thus 

is not subject to strict scrutiny,” even if the subsidy is not uniformly denied. Id. at 

549 (discussing cases rejecting constitutional challenges to other selective subsidies); 

see also United States v. Am. Library Ass’n, 539 U.S. 194, 212 (2003) (quoting 

Regan and upholding law subsidizing provision of filtered internet access but not 

unfiltered internet access to library patrons); Lyng v. Int’l Union, UAW, 485 U.S. 

360, 368 (1988) (quoting Regan and upholding Congress’ refusal to extend food 

(continued) 
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“Ysursa requires us to analyze [VPD programs] under First Amendment cases 

involving speech subsidies.” Walker, 705 F.3d at 648. 

We find Walker, which is the only recent circuit case addressing a similar VPD 

program,6

 to be well-reasoned and persuasive on this point. The contrary district 

court cases relied on by the district court here fail to consider the role of the 

speaker/viewpoint distinction in the context of a speech subsidy.7

 We follow 

Walker’s guidance in this critical respect. 

That is not, however, the end of the First Amendment inquiry. For one thing, 

the speaker/viewpoint distinction may as a practical matter be illusory: “Speech 

restrictions based on the identity of the speaker are all too often simply a means to 

control content.” Citizens United, 130 S. Ct. at 899; cf. Walker, 705 F.3d at 649-52 

(considering, but rejecting on the facts, contention that selectivity in allowing 

public-safety employees’ union access to VPD program was façade for viewpoint 

 

stamp benefits to workers who have lost income by striking, notwithstanding the 

undeniable effect on associational rights involved). 

6

 The Fourth Circuit’s Campbell decision cited in the passage from Walker

quoted above, as well as the Sixth Circuit’s decision in Brown v. Alexander, 718 F.2d 

1417, 1421-23 (6th Cir. 1983), also held somewhat similar VPD programs did not 

violate the First Amendment rights of associations not allowed to participate, but 

Walker’s thorough and contemporary discussion of the constitutional issues draws 

our particular reliance. 

7

 Actually, one of the cases—the district court decision reversed by the Seventh 

Circuit in Walker—did acknowledge this distinction and held it negated heightened 

First Amendment scrutiny, but went on to invalidate the VPD program under rational 

basis review. See Wis. Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856, 874-76 

(W.D. Wis. 2012), aff’d in part, rev’d in part, 705 F.3d 640 (7th Cir. 2013). 
- 10 - 

discrimination). There is no indication of this in connection with the numerosity 

requirement itself, which appears to be a facially neutral criterion—though given the 

failure of the parties and district court to focus on the speaker/viewpoint distinction, 

there may be evidence or argument on this point thus far not fairly aired. The same is 

true of the grandfather exemption from the numerosity requirement. And while the 

singular exemption granted specifically to OPEA is potentially more problematic, 

viewpoint-discrimination-by-proxy has not been adequately explored in this regard 

either. Thus, while we reverse the preliminary injunction improperly granted on the 

basis of speaker selectivity alone, we do not foreclose the possibility of OCPA 

justifying injunctive relief on the basis of viewpoint discrimination. 

Furthermore, even if heightened scrutiny does not apply, the numerosity 

requirement of the VPD program could be invalidated under rational-basis scrutiny. 

But for that to happen, OCPA must satisfy a heavy burden: OCPA must “negative 

any reasonably conceivable state of facts that could provide a rational basis for the 

[selective] classification” effected by the challenged statute. Cohon ex rel. Bass v. 

N.M. Dep’t of Health, 646 F.3d 717, 730 (10th Cir. 2011) (internal quotation marks 

omitted). The district court has not addressed this question. Rather, it concluded that 

(1) the Director had not shown the numerosity requirement of the VPD program was 

(2) supported by state interests substantial enough to satisfy heightened scrutiny and 

(3) drawn to achieve such interests in a manner commensurate with such scrutiny. 

Aplt. App. at 832-33. All three points differentiate the district court’s analysis from 
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that directed by rational-basis scrutiny. We do not preemptively gainsay the 

possibility of a successful rational-basis challenge to the VPD program, but an 

affirmance of the existing injunction on this basis would be inappropriate. We leave 

any further development of this potential rationale for injunctive relief to the district 

court. 

 The preliminary injunction issued by the district court is reversed. 

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge