Rule 8 of the Federal Rules of Appellate Procedure allows this Court to issue an “injunction pending appeal.” Under Circuit Rule 8.1 a proponent of an injunction pending appeal must show “(A) the basis for the district court’s or agency’s subject matter jurisdiction and the basis for the court of appeals’ jurisdiction, including citation to statutes and a statement of facts establishing jurisdiction; (B) the likelihood of success on appeal; (C) the threat of irreparable harm if the stay or injunction is not granted; (D) the absence of harm to opposing parties if the stay or injunction is granted; and (E) any risk of harm to the public interest.”
While there is “substantial overlap” between this standard and that governing preliminary injunctions, they are not identical. Nken v. Holder, 556 U.S. 418, 434 (2009). If a 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 v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996). 1 Where serious legal questions are presented, an injunction on appeal may be necessary 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). Mr. Aposhian has satisfied all five elements of this test, and this Court should grant an injunction pending appeal.