                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        March 25, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
OKLAHOMA CORRECTIONS
PROFESSIONAL ASSOCIATION INC.,
a not for profit corporation;
DAVID RAMSEY, individually;
GLEN COLEMAN,

             Plaintiffs-Appellees,

v.                                                        No. 12-6238
                                                   (D.C. No. 5:10-CV-01369-R)
PRESTON DOERFLINGER, Finance                              (W.D. Okla.)
Secretary and Director, Oklahoma
Department of Human Services,

             Defendant-Appellant.


                            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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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,”


                                         -2-
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.


                                           -3-
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).


                                            -4-
      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)
                                           -5-
       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.


                                           -6-
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

                                          -7-
       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)
                                             -8-
“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).


                                           -9-
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


                                          - 10 -
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




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