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National Association of Manufacturers v. Taylor

April 18, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


On April 11, 2008, this Court issued a Memorandum Opinion and Order denying Plaintiff, the National Association of Manufacturers'("NAM"), motion for judgment on the pleadings in this action. The NAM's action named as Defendants the Honorable Jeffrey A. Taylor, United States Attorney for the District of Columbia ("Taylor"), the Honorable Nancy Erickson, Secretary of the Senate of the United States ("Erickson"), and the Honorable Lorraine C. Miller, Clerk of the House of Representatives of the United States ("Miller," and collectively with Erickson, the "Legislative Defendants"). The NAM challenged § 207 of the Honest Leadership and Open Government Act of 2007 ("HLOGA"), Pub. L. No. 110-81, 121 Stat. 735, which amended § 1603(b)(3) of the Lobbying Disclosure Act of 1995 ("LDA"), 2 U.S.C. § 1601 et seq., and requires disclosure of organizations that contribute significantly to the lobbying activities of a lobbyist's client and actively participate in the planning, supervision, or control of those lobbying activities. The NAM argued that § 207 violates the First Amendment by impermissibly burdening its rights and those of its members to speak, associate, and petition the government, and further argued that § 207 is unconstitutionally vague both on its face and as applied to the NAM. The Court's 57-page Memorandum Opinion ("Mem. Op.") and the accompanying Order, issued on April 11, 2008, rejected the NAM's claims on the merits, concluding that § 207 is narrowly tailored to serve compelling government interests, and is neither vague on its face nor as applied to the NAM.

The NAM has now brought a Motion for a Stay and an Injunction Pending Appeal, requesting that the Court "issue a stay and injunction barring Defendants from implementing or enforcing § 207 . . . pending Plaintiff's appeal of this Court's April 11, 2008[] order and accompanying memorandum opinion." NAM Mot. for Stay at 1. In so doing, the NAM seeks to avoid complying with § 207's disclosure requirements in its LDA quarterly report due April 21, 2008. Defendant Taylor and the Legislative Defendants oppose Plaintiff's request and have filed separate Oppositions. The NAM has likewise filed a separate reply memorandum in response to each Opposition. The Court has thoroughly considered the parties' briefs, the relevant legal authority, and the entire record herein, and concludes that the NAM has failed to meet the stringent standards required to justify the extraordinary remedy of a stay or injunction pending appeal. The Court shall therefore deny the NAM's motion.


The following factors are to be considered when determining whether a stay or injunction pending appeal is warranted:

(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. To justify the granting of a stay, a movant need not always establish a high probability of success on the merits. Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa.

Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985); Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); see also D.C. Circuit Handbook of Practice and Internal Procedures Part VIII(a) (2003).*fn1

Importantly, it is "the movant's obligation to justify the court's exercise of such an extraordinary remedy." Cuomo, 772 F.2d at 978; see also Twelve John Does v. District of Columbia, Civ. A. No. 80-2136, 1988 WL 90106, at *1 (D.D.C. Aug. 4, 1988) ("[a]n indefinite stay pending appeal is an extraordinary remedy, and is to be granted only after careful deliberation has persuaded the Court of the necessity of the relief") (citing Virginia Petroleum Jobbers, 259 F.2d at 925). "This Circuit has recently reiterated that the applicant must satisfy 'stringent standards required for a stay pending appeal.'" Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 230 F. Supp. 2d 12, 14 (D.D.C. 2002) (citing Summers v. Howard Univ., Civ. A. No. 02-7069, 2002 WL 31269623 (D.C. Cir. Oct. 10, 2002)). Where a moving party fails to establish a substantial case on the merits, and further fails to "demonstrate that the balance of equities or the public interest strongly favor the granting of a stay," a motion for stay is properly denied. Cuomo, 772 F.2d at 972.


As an initial matter, while the NAM purports to seek both a stay and an injunction pending appeal, a stay of this Court's April 11, 2008 Order and accompanying Memorandum Opinion would have no practical effect on the NAM's obligation to comply with § 207's disclosure requirements in its April 21, 2008 LDA quarterly report. Further, the NAM does not seek to merely enjoin Defendants from enforcing § 207 against the NAM pending appeal of this Court's judgment, it seeks to enjoin all implementation and enforcement of § 207 pending appeal. See NAM Mot. for Stay at 1.*fn2 As such, the Court is cognizant of Chief Justice Rehnquist's reminder, made in the context of a denial of an application to enjoin the operation of an Act of Congress, that "Acts of Congress [are] presumptively constitutional." Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers) (quoting Marshall v. Barlow's, Inc., 429 U.S. 1347, 1348 (1977) (Rehnquist, C.J., in chambers)).*fn3 Moreover, "[u]nlike a stay, which temporarily suspends 'judicial alteration of the status quo,' an injunction 'grants judicial intervention . . . [and] alter[s] the legal status quo." Id. (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)). In particular, the wholesale injunction the NAM seeks might well "throw [§ 207's] disclosure scheme into uncertainty and disarray and confuse the disclosure obligations of numerous other filers that are already preparing to submit their April 21, 2008 reports in compliance with [] § 207," and who apparently do not share the NAM's views on § 207's constitutionality. Legisl. Defs' Opp'n at 10. Finally, even though the NAM does not request as much, the Court could consider issuing an injunction pending appeal limited to § 207's application to the NAM. Such relief, however, would not be justified because the Court's Memorandum Opinion did not differentiate between § 207's application to the NAM and its application to all other LDA registrants, but rather found § 207 to be facially constitutional and not vague.

Mindful of these inherent issues regarding the relief the NAM requests, the Court continues to consider the four factors relevant to the NAM's motion for a stay and injunction pending appeal, ultimately concluding that the NAM's motion fails to establish any of the four prerequisites for the extraordinary remedy it seeks.

A. The NAM Has Failed to Show a Strong Likelihood of Success on the Merits

"The first, and most important, hurdle which the petitioners must overcome is the requirement that they present a strong likelihood of prevailing on the merits of their appeal." Am. Cetacean Soc. v. Baldridge, 604 F. Supp. 1411, 1414 (D.D.C. 1985). "Without such a substantial indication of probable success, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review." Virginia Petroleum Jobbers, 259 F.2d at 925. "Even should the petitioner show irreparable harm would result without the imposition of [a] stay, if the requirement of a strong likelihood of success is not met, the petition will be denied." Am. Cetacean Soc., 604 F. Supp. at 1414 (citing Blankenship v. Boyle, 447 F.2d 1280 (D.C. Cir. 1971)). This does not mean that the applicant's chances of success on appeal must appear as a "mathematical probability," but that the trial court, in the exercise of its discretion, must weigh the probability of success on appeal in a "balance of equities" with the three other factors. Holiday Tours, 559 F.2d at 844. The motion to stay may be granted when a "serious legal question is presented, when little if any harm will befall other interested persons or the public, and when denial of the order would inflict irreparable injury on the movant." Id.

The Court's April 11, 2008 Memorandum Opinion relied upon well-established Supreme Courtprecedent upholding disclosure requirements in the contexts of lobbying, United States v. Harriss, 347 U.S. 612 (1954), and campaign contributions, Buckley v. Valeo, 424 U.S. 1 (1976), and McConnell v. Federal Election Commission, 540 U.S. 93 (2002), and concluded that § 207's disclosure requirement is narrowly tailored to serve two compelling government interests: providing Congress and the electorate with information regarding the influence of lobbyists on government decisions, and avoiding the appearance of corruption. See Mem. Op. at 22-31. In particular, the Court explained that Congress passed § 207 to "close[] a loophole that has allowed so-called 'stealth coalitions,' often with innocuous-sounding names, to operate without identifying the interests engaged in the lobbying activities." Id. at 27 (quoting 153 Cong. Rec. S10709 (daily ed. Aug. 2, 2007) (statement of Sens. Feinstein, Lieberman, and Reid)); see also 153 Cong. Rec. S260 (daily ed. Jan. 9, 2007) (statement of Sen. Lieberman) (explaining that S.1 would "remove the cloak obscuring so-called stealth lobbying campaigns . . . [by] coalitions that . . . lobby on a range of issues that could never be identified by the name of the coalition."); id. at H5743 (daily ed. May 24, 2007) (statement of Rep. Doggett). The Court found that § 207 materially advances the proffered compelling government interests by closing that loophole, id. at 31-32, and rejected the NAM's claims that § 207 is both overinclusive and underinclusive, id. at 34-40. The Court ultimately concluded that § 207 is narrowly tailored because it appropriately ...

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