III. ARGUMENT

“Federal Rule of Civil Procedure 62(d) allows a district court to “grant an injunction” “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction[.]” “This rule does not limit the power of the appellate court or one of its judges or justices … to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending.” Fed. R. Civ. P. 62(g). Indeed, under Federal Rule of Appellate Procedure 8(a), which governs motions for injunctions pending appeal in circuit court, such motions typically must first be made in the district court. Fed. R. App. P. 8(a).

The standards governing injunctions pending an appeal under both rules are substantially the same. The movant must show (1) a likelihood of success on the merits; (2) irreparable harm if an injunction is not granted; (3) that the issuance of an injunction will not substantially injure the other parties to the proceeding; and (4) that the public interest favors the movant. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996) (stating injunction requirements under 10th Cir. R. 8.1).

The purpose of a stay or an injunction pending appeal is to preserve the status quo during the appeal. Thus, if the moving party “can meet the other requirements for a stay pending appeal, they will be deemed to have satisfied the likelihood of success on appeal element if they show ‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation.” McClendon, 79 F.3d at 1020 (internal citation and quotation marks omitted); see also In re Revel AC, Inc., 802 F.3d 558, 568– 69 (3d Cir. 2015) (a sufficient degree of success for an injunction pending appeal is “a reasonable chance, or probability, of winning,” but “the likelihood of winning on appeal need not be more likely than not”) (internal citations and quotation marks omitted).1 Thus, where serious legal questions are presented, an injunction on appeal can be justified even when an injunction was not required at the trial level. See, e.g., O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) (staying injunction on appeal without addressing the validity of the underlying injunction); Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 13–14 (D.D.C. 2014) (where decision “presented difficult and substantial legal questions … and was at times, a close one,” stay of injunction on appeal was necessary).

For the reasons that follow, Mr. Aposhian can satisfy all four elements of this test, and this Court should therefore grant an injunction pending appeal.”

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