Real Truth about Obama v. Federal Election Com'n, 08-1977.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 575 F.3d 342
• Docket Number: No. 08-1977.,08-1977.
• Parties: The REAL TRUTH ABOUT OBAMA, INC., Plaintiff-Appellant, v. FEDERAL ELECTION COMMISSION; United States Department of Justice, Defendants-Appellees. Campaign Legal Center; Democracy 21, Amici Supporting Appellees.
• Decision Date: 05 August 2009

575 F.3d 342 The REAL TRUTH ABOUT OBAMA, INC., Plaintiff-Appellant,
v.
FEDERAL ELECTION COMMISSION; United States Department of Justice, Defendants-Appellees.
Campaign Legal Center; Democracy 21, Amici Supporting Appellees. No. 08-1977. United States Court of Appeals, Fourth Circuit. Argued: May 13, 2009. Decided: August 5, 2009.

[575 F.3d 344]

ARGUED: James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Harry Jacobs Summers, Federal Election Commission, Washington, D.C., for Appellees. ON BRIEF: Michael Boos, Law Office of Michael Boos, Fairfax, Virginia; Richard E. Coleson, Clayton J. Callen, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Thomasenia P. Duncan, General Counsel, David Kolker, Associate General Counsel, Adav Noti, Federal Election Commission, Washington, D.C.; Gregory G. Katsas, Assistant Attorney General, United States Department of Justice, Washington, D.C.; Dana J. Boente, Acting United States Attorney, Office of the United States Attorney, Alexandria, Virginia; Michael S. Raab, Eric Fleisig-Greene, United States Department of Justice, Civil Division, Washington, D.C., for Appellees. Donald J. Simon, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C., Fred Wertheimer, Democracy 21, Washington, D.C., for Democracy 21, Amicus Supporting Appellees; J. Gerald Hebert, Paul S. Ryan, Tara Malloy, The Campaign Legal Center, Washington, D.C., for Campaign Legal Center, Amicus Supporting Appellees.

Before NIEMEYER, Circuit Judge, C. ARLEN BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation, and JOSEPH F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge BEAM and Judge ANDERSON joined.

OPINION

NIEMEYER, Circuit Judge:

The Real Truth About Obama, Inc. ("Real Truth") commenced this action against the Federal Election Commission and the Department of Justice, challenging the constitutionality of three Federal Election Commission regulations — 11 C.F.R. §§ 100.22(b), 100.57(a), and 114.15 — and a Federal Election Commission enforcement policy under the First and Fifth Amendments. Real Truth alleged that these regulations chilled its right to disseminate information about presidential candidate Senator Obama's position on abortion. Real Truth seeks, among other things, a preliminary injunction prohibiting enforcement of these provisions.

The district court denied Real Truth's motion for a preliminary injunction, finding that (1) Real Truth did not show that it

575 F.3d 345

was likely to succeed on the merits as to any of its challenges; (2) Real Truth would not be irreparably harmed if the preliminary injunction were not granted; and (3) issuing the injunction would be against public policy.

On appeal, we apply the Supreme Court's standard for preliminary injunctions stated in Winter v. Natural Resources Defense Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 374-76, 172 L.Ed.2d 249 (2008), and conclude that the district court did not abuse its discretion in denying the motion for a preliminary injunction. Accordingly, we affirm.

I

Real Truth, a Virginia nonprofit corporation organized on July 24, 2008, as an "issue-adversary `527' organization" under § 527 of the Internal Revenue Code, commenced this action six days after its incorporation to challenge three Federal Election Commission regulations — 11 C.F.R. § 100.22(b) (defining when a communication expressly advocates the election or defeat of a clearly identified candidate); 11 C.F.R. § 100.57(a) (defining campaign contributions to include funds "to support or oppose the election of a clearly identified Federal candidate" (emphasis added)); 11 C.F.R. § 114.15 (regulating corporate and labor organization funds expended for electioneering communications) — and a Federal Election Commission enforcement policy issued for determining Political Action Committee ("PAC") status using "the major-purpose test." Real Truth alleged that these provisions are "unconstitutionally overbroad" and "void for vagueness" in violation of the First and Fifth Amendments.

In its complaint, Real Truth asserted that it intends to publish audio advertisements stating candidate Obama's position on abortion and to circulate a fundraising letter to raise money to publish the "well-documented facts about Obama's views on abortion." While Real Truth asserted in its complaint that it is not a PAC and did not advocate the election or defeat of Senator Obama, it alleged that it

is chilled from proceeding with these activities because it reasonably believes that it will be subject to an FEC and DOJ investigation and possible enforcement action potentially resulting in civil and criminal penalties, based on the fact that the FEC has deemed 527s to be PACs, based on [the challenged regulations].

Included in the relief that Real Truth seeks is a preliminary injunction enjoining the enforcement of the challenged provisions against Real Truth's "intended activities" and against others similarly situated.

The district court denied Real Truth's motion for preliminary injunction by order dated September 11, 2008, and Real Truth filed this interlocutory appeal, contending that the district court abused its discretion in denying its motion for a preliminary injunction.

II

A preliminary injunction is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial. See In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir.2003); see also De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220-21, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). Because a preliminary injunction affords, on a temporary basis, the relief that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate by "a clear showing" that, among other things, it is likely to succeed on the merits at trial.

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Winter, 129 S.Ct. at 376; see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam). We review the grant or denial of a preliminary injunction for abuse of discretion. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); In re Microsoft Litig., 333 F.3d at 524-25.

In its recent opinion in Winter, the Supreme Court articulated clearly what must be shown to obtain a preliminary injunction, stating that the plaintiff must establish "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter, 129 S.Ct. at 374. And all four requirements must be satisfied. Id. Indeed, the Court in Winter rejected a standard that allowed the plaintiff to demonstrate only a "possibility" of irreparable harm because that standard was "inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 375-76.

Before the Supreme Court's decision in Winter, the standard articulated in Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977), governed the grant or denial of preliminary injunctions in the Fourth Circuit. See also, e.g., Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811-14 (4th Cir.1991); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359-60 (4th Cir.1991). In Blackwelder we adopted "the balance-of-hardship test," which begins with balancing the hardships of the parties. 550 F.2d at 196. We stated, "the first step in a Rule 65(a) preliminary injunction situation is for the court to balance the `likelihood' of irreparable harm to the plaintiff against the `likelihood' of harm to the defendant." Id. at 195. If that balancing results in an imbalance in the plaintiff's favor, we then determine whether the plaintiff "raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Id. In Blackwelder, we specifically held that the district court erred when it demanded that the plaintiff "first show `likelihood of success' in order to be entitled to preliminary relief." Id.

Similarly, in Rum Creek Coal, we reiterated that the "hardship balancing test applies to determine the granting or denial of a preliminary injunction." 926 F.2d at 359. We held that only after the district court concluded that the balance of the likelihood of the irreparable harm to the parties tilted in favor of the plaintiff was it to turn to the merits of the case to determine whether the plaintiff "show[ed] grave or serious questions for litigation." Id. at 363 (internal quotation marks omitted).

Our Blackwelder standard in several respects now stands in fatal tension with the Supreme Court's 2008 decision in Winter.

First, the Supreme Court in Winter, recognizing that a preliminary injunction affords relief before trial, requires that the plaintiff make a clear showing that it will likely succeed on the merits at trial. 129 S.Ct. at 374, 376. Yet in Blackwelder, we instructed that the likelihood-of-success requirement be considered, if at all, only after a balancing of hardships is conducted and then only under the relaxed standard of showing that "grave or serious questions are presented" for litigation. 550 F.2d at 195-96 (emphasis added); see also Rum Creek Coal, 926 F.2d at 363. The Winter requirement that the plaintiff

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clearly demonstrate that it will likely succeed on the merits is far stricter than the Blackwelder requirement...