UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

TEA PARTY LEADERSHIP FUND, )

et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 12-1707 (RWR)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

______________________________)

MEMORANDUM ORDER

On October 18, 2012, the Tea Party Leadership Fund, an

organization that registered with the Federal Election Commission

(“FEC”) as a political committee on May 9, 2012, Sean Bielat, a

2012 candidate for the United States House of Representatives

from Massachusetts’s 4th Congressional district, and John Raese,

a 2012 candidate for the United States Senate from West Virginia,

brought suit against the FEC alleging that the requirement under

the Federal Election Campaign Act of 1971, 2 U.S.C. § 441a(a)(4),

that a newly registered political committee wait six months

before it can contribute $5,000 per candidate instead of only

$2,500 per candidate violates the First Amendment of the U.S.

Constitution. The plaintiffs also filed a motion for a

preliminary injunction to enjoin the FEC from enforcing 2 U.S.C.

§ 441a(a) against the Tea Party Leadership Fund to allow the
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political committee to contribute $5,000 per candidate before the

November 6, 2012 general election.

On October 22, 2012, the parties were ordered to show cause

why the hearing on the motion for a preliminary injunction should

not be consolidated with a hearing on the merits under Federal

Rule of Civil Procedure 65(a)(2). Rule 65 provides that

“[b]efore . . . the hearing on a motion for a preliminary

injunction, the court may advance the trial on the merits and

consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). 

This procedural device is designed to conserve judicial resources

and avoid duplicative proceedings. NOW v. Operation Rescue, 747

F. Supp. 760, 768 (D.D.C. 1990), modified, 816 F. Supp. 729

(D.D.C. 1993). If the hearings are consolidated, then the trial

on the merits is accelerated given the exigency of the

preliminary injunction. But a court’s “power [to consolidate

hearings] must be tempered by the due process principle that fair

notice and an opportunity to be heard must be given the litigants

before the disposition of a case on the merits.” 11A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure § 2950 (2d ed. 1995).

The plaintiffs oppose consolidating the hearings. They

argue that consolidation “would leave insufficient time” between

the deadline for filing dispositive motions and the general

election on November 6 “to grant adequate relief to Plaintiffs.” 
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Pls.’ Resp. to Order to Show Cause at 2. The plaintiffs urge

that time is of the essence because “[i]f this Court does not

make a preliminary ruling on plaintiffs’ claims by November 5,

the opportunity to support [Mr. Bielat, Mr. Raese, and other

candidates], and the ability of these candidates to deploy that

support, will be lost.” Id. at 1–2. The FEC supports

consolidation because it would promote judicial efficiency. Def.

FEC’s Resp. to Ct.’s Order to Show Cause at 2. The FEC also

notes that the plaintiffs “waited more than five months to seek

judicial relief, which they could have sought as early as May

2012” -- when the Tea Party Leadership Fund registered with the

FEC as a political committee -- and filed the instant action just

nineteen days before the general election. Id. at 1 (emphasis in

original). The FEC argues that “[g]iven plaintiffs’ unjustified

delay in filing suit, it is highly unlikely that plaintiffs would

receive meaningful preliminary relief within their desired

timeframe.” Id. at 2.

The plaintiffs’ delay in filing their motion suggests that

they could not realistically have expected relief during this

election cycle. Cf. Gordon v. Holder, 632 F.3d 722, 724-25 (D.C.

Cir. 2011) (“[U]ntimely filings may support a conclusion that the

plaintiff cannot satisfy the irreparable harm prong.”) The local

civil rules do not even contemplate that a hearing on a motion

for a preliminary injunction need occur sooner than 21 days after
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the motion is filed. LCvR 65.1(d).1 Since the plaintiffs filed

their motion for preliminary injunction on October 18, 2012, a

hearing could have been held as late as November 8, 2012. Given

that consolidation is in the interests of judicial economy, the

hearing on the plaintiffs’ motion for a preliminary injunction

will be consolidated with a hearing on the merits, and the FEC’s

proposed briefing schedule will be adopted. Accordingly, it is

hereby

ORDERED that the plaintiffs’ motion [1] for a preliminary

injunction be, and hereby is, CONSOLIDATED with a hearing on the

merits under Rule 65(a)(2). It is further

ORDERED that this case shall proceed with the following

deadlines, supplanting the current schedule to complete briefing

on the pending motion for a preliminary injunction:

Plaintiffs’ summary judgment motion January 11, 2013

Defendant’s opposition and cross-motion February 15, 2013

Plaintiffs’ reply and opposition March 8, 2013

Defendant’s reply March 29, 2013

SIGNED this 2nd day of November, 2012.

 /s/ 

RICHARD W. ROBERTS

United States District Judge

1 “[A] hearing on an application for preliminary injunction shall

be set by the court no later than 21 days after its filing,

unless the court earlier decides the motion on the papers or

makes a finding that a later hearing date will not prejudice the

parties.” LCvR 65.1(d).