Lisa J. Stevenson, Acting General Counsel (lstevenson@fec.gov) 

Kevin Deeley, Associate General Counsel (kdeeley@fec.gov) 

Harry J. Summers, Assistant General Counsel (hsummers@fec.gov) 

Jacob S. Siler, Attorney (jsiler@fec.gov) 

Sana Chaudhry, Attorney (schaudhry@fec.gov) 

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

_______________________________________ 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Plaintiff, ) Case No. 2:15-cv-00439-DB 

 ) 

 v. ) 

 ) OPPOSITION TO MOTION FOR 

JEREMY JOHNSON, et al., ) PARTIAL FINAL JUDGMENT 

 ) 

 Defendants. ) District Judge Dee Benson 

 ) 

PLAINTIFF FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

DEFENDANT JOHN SWALLOW’S MOTION FOR PARTIAL FINAL JUDGMENT 

The Court should deny defendant John Swallow’s motion for partial final judgment, or in 

the alternative enter partial final judgment with a modified injunction that only bars plaintiff 

Federal Election Commission (“FEC” or “Commission”) from enforcing 11 C.F.R. 

§ 110.4(b)(1)(iii) against Swallow. (See Swallow’s Mot. for Partial Final J. (Docket No. 124); 

Mem. Decision & Order (Apr. 6, 2018) (Docket No. 120) (“April Order”).) The April Order 

dismissed the Commission’s claim that Swallow violated section 110.4(b)(1)(iii) and also 

included a permanent nationwide injunction against enforcement of the regulation, which 

prohibits knowingly helping or assisting in making a contribution in the name of another 

pursuant to 52 U.S.C. § 30122. (April Order at 10.) The FEC asserts two additional, stillCase 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 1 of 14
2

outstanding claims in this action against defendant Jeremy Johnson. (See FEC’s Am. Compl. for 

Civil Penalty, Declaratory, Injunctive, and Other Appropriate Relief at 17 (“Compl.”) (Docket 

No. 36).) Pursuant to Federal Rule of Civil Procedure 54(b), “the court may direct entry of a 

final judgment as to one or more, but fewer than all, claims or parties only if the court expressly 

determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). In making this 

determination, the Court considers whether the order at issue is final and whether there is any 

just reason to delay entry of judgment. See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 

(1980). Swallow’s motion for partial final judgment, as currently framed, does not meet either of 

these standards. 

First, the April Order is not final for purposes of Rule 54(b). The claim that the Order 

resolved was the only one made against Swallow, but it is factually and legally intertwined with 

the remaining claims against Johnson. In particular, the claims against the two defendants 

include related legal issues under 52 U.S.C. § 30122 and arise from the same factual predicate 

involving a conduit contribution scheme during the 2009-2010 federal election cycle. These 

overlapping issues would require the Tenth Circuit Court of Appeals to revisit the same 

questions if there are multiple appeals. Moreover, there would be a greater likelihood of 

redundant appeals if a final judgment entered now included the nationwide injunction granted in 

the April Order. The Commission has far stronger incentives to seek appellate review of an 

injunction barring any enforcement of a longstanding agency rule interpreting a key part of the 

primary statute that Congress directed the agency to enforce. And the deadline to file such an 

appeal would likely be far in advance of the resolution of the claims against Johnson, which are 

currently stayed in the midst of discovery. Thus, in light of the historic policy against piecemeal 

appeals preserved in Rule 54(b), Swallow’s motion should be denied on that basis alone. 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 2 of 14
3

Second, Swallow’s motion should be denied because he has failed to establish the 

absence of a just reason for delay. The Tenth Circuit has consistently held that “Rule 54(b) 

entries are not to be made routinely” and that “trial courts should be reluctant to enter Rule 54(b) 

orders” since the rule has a limited purpose of “provid[ing] recourse for litigants when dismissal 

of less than all their claims will create undue hardships.” Okla. Tpk. Auth. v. Bruner, 259 F.3d 

1236, 1242 (10th Cir. 2001) (citations and internal quotation marks omitted). Swallow’s motion, 

however, does not articulate any hardship he would face as a result of a deferral of final 

judgment, which is unsurprising given that he is the prevailing party and the sole claim against 

him has already been dismissed. Yet his motion, if successful, would force the FEC to decide 

whether to seek appellate review before all the claims are final, which would unduly burden the 

FEC unless at a minimum the injunction is narrowed. Of course, there would be no hardship to 

Swallow from modifying the injunction to cover him alone; his answer did not even request any 

injunctive relief. (See Swallow’s Answer to Amend. Compl. (Docket No. 45).) 

In sum, judicial efficiency and equitable interests are better served by awaiting the entry 

of final judgment addressing all claims in the case, or by narrowing the scope of the nationwide 

injunction, so as to greatly reduce the risk of redundant appeals. 

ARGUMENT 

The Tenth Circuit has explained that certification under Rule 54(b) is only appropriate 

when a district court makes two specific determinations: (1) whether the order it is certifying is a 

final order, and (2) whether there is no just reason to delay review of the final order until it has 

conclusively ruled on all claims presented by all the parties to the case. Okla. Tpk. Auth., 259 

F.3d at 1242 (citing Fed. R. Civ. P. 54(b); Curtiss–Wright Corp., 446 U.S. at 8). The district 

court should consider the following factors in making these determinations: “‘whether the claims 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 3 of 14
4

under review [are] separable from the others remaining to be adjudicated and whether the nature 

of the claims already determined [is] such that no appellate court would have to decide the same 

issues more than once even if there were subsequent appeals.’” New Mexico v. Trujillo, 813 F.3d 

1308, 1316 (10th Cir. 2016) (quoting Curtiss–Wright, 446 U.S. at 8). In making these 

determinations, the district court should weigh the historic policy of preventing piecemeal 

appeals against potential inequities from delaying an appeal. Stockman’s Water Co., LLC v. 

Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (citing Curtiss–Wright, 446 U.S. at 

8). 

I. THE APRIL ORDER IS NOT FINAL FOR THE PURPOSES OF RULE 54(B) 

A. The Claim Resolved in the April Order Is Not Sufficiently Distinct and 

Separable from the FEC’s Remaining Claims Against Johnson

 

The Court’s April Order is not final for purposes of Rule 54(b) unless the claim it 

resolved is “distinct and separable” from the claims left unresolved. Okla. Tpk. Auth., 259 F.3d 

at 1243. In determining whether claims are separable, the Court should consider “whether the 

allegedly separate claims turn on the same factual questions, whether they involve common legal 

issues, and whether separate recovery is possible.” Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 

2005) (citing James Wm. Moore, et al., Moore’s Fed. Prac. 3d § 202.06[2] (3d ed. 1999)). 

Here, the claim resolved in the April Order is not sufficiently distinct and separable. 

First, both the resolved and pending claims in this case are based on the same core factual 

predicate: the conduit contribution scheme in which both Swallow and Johnson participated 

during the 2009-2010 election cycle. (See Compl. (Docket No. 36).) The FEC alleges that 

Swallow “caused, helped, and assisted Johnson to advance or reimburse the contributions of 

straw donors to a candidate for United States Senate.” (Id. ¶ 1.) Swallow argues there is no 

overlap because the allegations against him are purportedly based on his political speech, 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 4 of 14
5

whereas the allegations against Johnson are purportedly based on financial transactions. (See 

Swallow’s Mot. for Partial Final J. at 3 n.2 (Docket No. 124).) But Swallow’s characterization 

ignores the common set of facts underlying all of the claims. 

Indeed, many of the Commission’s factual allegations regarding Swallow remain relevant 

in the unresolved claims against Johnson, from the initiation to the execution of the conduit 

contribution scheme. (See, e.g., Compl. ¶¶ 48-49 (alleging that Swallow alerted Johnson when 

some contribution checks from his straw donors to Mike Lee’s Senate campaign bounced); see 

also Pl. FEC’s Mem. in Opp’n to Def. John Swallow’s Mots. to Dismiss and for J. on the 

Pleadings and in Supp. of Cross-Mot. for Partial J. on the Pleadings at x-xiv (Docket No. 103) 

(summarizing the complaint’s common factual allegations against both defendants).) The 

existence of such intertwined factual issues counsels against entering final judgment to avoid the 

possibility of redundant appeals. See Diaz v. King, No. CV 14-1086 KG/SCY, 2016 WL 

8925344, at *4 (D.N.M. Jan. 13, 2016); Albright v. Attorney’s Title Ins. Fund, No. 

2:03CV00517, 2008 WL 376251, at *2–3 (D. Utah Feb. 11, 2008) (Benson, J.); 10 Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 2656 (2005) (a close 

relationship between the fact patterns supporting claims “means that the policy against piecemeal 

review with the attendant risk of repeated inquiry into the same basic facts should take 

precedence over the desirability of permitting an immediate appeal upon termination of a 

separable unit of the case”). Moreover, entering partial final judgment is also inappropriate 

where, as here, factual overlap exists in a dismissed secondary liability claim and a still-pending 

primary liability claim. Medved v. DeAtley, No. 12-CV-03034-PAB-MEH, 2014 WL 4437272, 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 5 of 14
6

at *2–3 (D. Colo. Sept. 9, 2014).1

 

Second, the resolved claim is not final because the FEC’s pending claims against Johnson 

are legally intertwined with that claim. The Commission’s claims against both defendants arise 

from violation of the same statute, 52 U.S.C. § 30122, although Johnson also faces liability under 

another provision of the statute. Moreover, the Commission’s claim against Swallow is a claim 

for secondary liability, which by its nature depends on the primary liability of Johnson. Medved, 

2014 WL 4437272, at *2–3 (denying 54(b) motion because disposal of the claims against 

defendants alleged to have provided substantial assistance to a defendant with outstanding claims 

did not “make the [dismissed] claims themselves any less factually or legally connected to the 

claims that remain”). 

Such legal and factual overlap would undermine judicial efficiency by requiring the 

appellate court to familiarize itself with the same issues in a later appeal. Thus, the Rule 54(b) 

certification requested here would contravene the historic policy against piecemeal appeals. 

B. Entering Partial Final Judgment on the Nationwide Injunction Would 

Increase the Possibility of Redundant Appeals 

The April Order includes a broad injunction against the Commission’s enforcement of 11 

C.F.R. § 110.4(b)(1)(iii) that is not limited to enforcement against Swallow or to a specified 

 

1

 Contrary to Swallow’s argument, the appellate court’s review would not be limited to 

applying Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). 

(Swallow’s Mot. for Partial Final J. at 4.) On appeal the Tenth Circuit would have jurisdiction to 

affirm the lower court’s decision on “any grounds for which there is a record sufficient to permit 

conclusions of law, even grounds not relied upon by the district court.” Wells v. City & Cty. of 

Denver, 257 F.3d 1132, 1149–50 (10th Cir. 2001) (citation omitted). Here, the Tenth Circuit 

may review Swallow’s unresolved constitutional and legal sufficiency challenges. (See

Swallow’s Mot. to Dismiss, Mot. for J. on the Pleadings, and Mem. in Support (Docket No. 98).) 

The court’s analysis of these issues would include consideration of the allegations regarding 

statements by Swallow, which are plainly involved in the FEC’s case against Johnson. See supra 

pp. 4-5. 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 6 of 14
7

jurisdiction. (See April Order at 4.) Entering partial final judgment on this order would 

substantially increase the possibility of multiple appeals involving many of the same issues, as 

explained above, because the Commission has stronger incentives to seek appellate review of a 

nationwide injunction.2

 Therefore, the Court should not enter final judgment on the April Order, 

or alternatively should enter judgment but narrow the injunction’s scope solely to this litigation 

to greatly reduce the need for appeal of the judgment. 

Equitable principles support narrowing the scope of the injunctive relief to enforcement 

against Swallow.3 The extraordinary relief of an injunction “should be no more burdensome . . . 

than necessary to provide complete relief” to the prevailing party. Califano v. Yamasaki, 442 

U.S. 682, 702 (1979). Guided by this principle, in Virginia Society for Human Life, Inc. v. FEC, 

the Fourth Circuit held that the district court abused its discretion when it issued a nationwide 

injunction against the FEC’s enforcement of a regulation. 263 F.3d 379, 393 (4th Cir. 2001). 

The court explained that the nationwide injunction was “broader than necessary to afford full 

relief” to the prevailing party and “encroache[d] on the ability of other circuits to consider the 

constitutionality” of the regulation. Id.; see also Trump v. Hawaii, 138 S. Ct. 2392, 2424-29 

(2018) (Thomas, J., concurring) (doubting the authority of district courts to enter “universal 

 

2

 The Commission notes that it has not yet decided whether it will take an appeal on this 

issue, but that a nationwide injunction presents immediate and substantial burdens because it 

constrains the FEC’s enforcement of the regulation in pending and future cases outside of this 

jurisdiction. See FEC v. Rivera, No. 17-22643 (S.D. Fla. filed July 14, 2017) (alleging claims 

based in part on defendant’s violation of section 110.4(b)(1)(iii)). As explained herein, the 

Commission’s objections are greatly reduced by entry of a partial final judgment with a modified 

injunction that bars it from enforcing 11 C.F.R.§ 110.4(b)(1)(iii) against Swallow alone. 

3

 Under Rule 54(b), the Court’s interlocutory order “may be revised at any time before the 

entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. 

Civ. P. 54(b). Whether to revise an interlocutory order falls within the Court’s sound discretion. 

See Trujillo v. Bd. of Educ. of Albuquerque Pub. Schls., 212 F. App’x 760, 765 (10th Cir. 2007) 

(unpublished) (“A district court has discretion to revise interlocutory orders prior to entry of final 

judgment.”) (citing Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)). 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 7 of 14
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injunctions” against an Executive Branch law or policy); Nat’l Ctr. for Immigrants Rights, Inc. v. 

INS, 743 F.2d 1365, 1371 (9th Cir. 1984) (limiting scope of preliminary injunction against 

regulation alleged to be without statutory authority to cover “only the named plaintiffs”). The 

injunction here is similarly broader than necessary, for three reasons. 

First, enjoining the Commission from enforcing 11 C.F.R. § 110.4(b)(1)(iii) against 

Swallow alone would provide him with complete relief. Swallow’s answer did not request any 

injunction or assert any counterclaim, and he would not be prejudiced should the Court narrow 

the geographic reach of the injunction. Swallow raised his argument regarding the invalidity of 

the Commission’s regulation only in defense to an enforcement action. This situation is thus 

akin to that of a criminal defendant who successfully claims that the statute he is charged under 

is facially unconstitutional. That criminal defendant’s ability to obtain a reversal of his 

conviction is sufficient to afford him complete relief, and he is generally ineligible to obtain an 

order preventing the government from prosecuting others. See, e.g., Lawrence v. Texas, 539 

U.S. 558, 579 (2003) (reversing conviction); cf. Younger v. Harris, 401 U.S. 37, 46 (1971) 

(holding that the ability of criminal defendant to raise claim of unconstitutionality in state court 

prosecution precludes finding of irreparable injury necessary to support federal injunction). 

However, barring the FEC’s pending and future enforcement of a regulation on the basis of a 

single party asserting a defense in an enforcement action is unwarranted, particularly where that 

party did not request injunctive relief. While the FEC’s statutory authority to civilly enforce the 

Federal Election Campaign Act is not geographically limited, this case does not involve the 

typical circumstances where concerns of nationwide uniformity support nationwide relief. 

Compare Hospice of N.M., LLC v. Sebelius, 691 F. Supp. 2d 1275, 1295 (D.N.M. 2010) 

(declining to impose a nationwide injunction to address a “clearly” nationwide problem because 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 8 of 14
9

a broad injunction would have been inappropriate where plaintiffs before the court were not 

nationwide), aff’d, 435 F. App’x 749 (10th Cir. 2011) (unpublished), with Richmond Tenants 

Org. v. Kemp, 956 F.2d 1300 (4th Cir. 1992) (finding that a nationwide injunction prohibiting 

eviction of public housing tenants was appropriate because plaintiffs were tenants from across 

the country). 

Second, a nationwide injunction is a disfavored remedy where, as here, a court is 

deciding a regulatory challenge that raises important legal questions, including the meaning of an 

Act of Congress, that may benefit from development in multiple decisions by other courts of 

appeals. The Court’s issuance of a nationwide injunction here largely forecloses opportunities 

for judicial evaluation in other fora and for the potential adoption of different judicial 

perspectives on the issues this Court decided. See Va. Soc’y for Human Life, Inc., 263 F.3d at 

394 (overturning a district court’s imposition of a nationwide injunction that would impose the 

court’s “view of the law on all the other circuits”). Indeed, for this very reason, the Supreme 

Court has instructed that estopping the government from challenging an adverse decision in other 

circuits “would substantially thwart the development of important questions of law by freezing 

the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 

154, 160 (1984). The Court noted that “[a]llowing only one final adjudication would deprive 

[the] Court of the benefit it receives from permitting several courts of appeals to explore a 

difficult question before [the] Court grants certiorari.” Id. 

The April Order decided two important legal questions beyond the validity of 11 C.F.R. 

§ 110.4(b)(1)(iii): whether statutory language in 52 U.S.C. § 30122 unambiguously forecloses 

secondary liability and whether the Supreme Court’s decision in Central Bank of Denver, N.A. v. 

First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) controls the availability of secondary 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 9 of 14
10

liability in the regulatory enforcement setting. The Court answered both questions in the 

affirmative, and its ruling on the second question applied a decades-old judicial precedent in a 

context not yet considered by most courts. Granting a nationwide injunction, however, greatly 

reduced the possibility of circuit disagreements that could lead to Supreme Court review on these 

questions, as encouraged in Mendoza. 

Third, the principle of comity dictates narrowing the scope of the nationwide injunction 

in this particular case. See United States v. AMC Ent., Inc., 549 F.3d 760, 770 (9th Cir. 2008) 

(noting that “when exercising its equitable powers to issue an injunction, a court must be mindful 

of any effect its decision might have outside its jurisdiction”). The Commission has pending 

claims in the Southern District of Florida that are based in part on a violation of 11 C.F.R. 

§ 110.4(b)(1)(iii). See FEC v. Rivera, No. 17-22643 (S.D. Fla.). The injunctive relief in the 

April Order implicates the sovereignty of the Southern District of Florida by inhibiting the 

Commission from pursuing liability based on the regulation, including in connection with a 

pending motion to dismiss that was fully briefed before the April Order was entered. The 

interest in comity thus further weighs against the nationwide injunction. 

The foregoing considerations underline the importance of the FEC’s interest in seeking 

appellate review if a final judgment is entered on the nationwide injunction. To avoid the 

accompanying heightened possibility of redundant appeals, the Court should deny Swallow’s 

motion or narrow the injunction’s scope to enforcement against Swallow alone. 

II. THERE IS JUST REASON FOR DELAYING ENTRY OF THE FINAL 

JUDGMENT THAT SWALLOW NOW REQUESTS 

Swallow’s motion should also be denied because he has failed to show that there is no 

just reason to delay appellate review as things stand now. While there is no precise test for 

determining whether just cause exists, courts generally weigh “Rule 54(b)’s policy of preventing 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 10 of 14
11

piecemeal appeals against the hardship or injustice that might be inflicted on a litigant because of 

the delay.” United Bank of Pueblo v. Hartford Acc. & Indem. Co., 529 F.2d 490, 492 (10th Cir. 

1976). Just cause for delay exists here for the following three reasons. 

First, Swallow has not identified any hardship he faces from remaining in the case. 

Notably, even where a court determines that there is “final judgment,” the party moving for 

certification “must at least make a showing that delay of appellate review would create a 

hardship.” R. M-G for A.R. v. Las Vegas City Sch., No. CV 13-0350 KBM/KK, 2016 WL 

10592142, at *4 (D.N.M. Feb. 25, 2016); see also Diaz, 2016 WL 8925344, at *4 (finding just 

cause for delay because plaintiff did not identify undue hardship or special circumstances 

justifying an immediate appeal). Swallow has failed to articulate a hardship. And his 

generalized assertions that this case “gone on quite long enough” and that remaining claims 

“may not be resolved for some time” are insufficient. (Swallow’s Mot. for Partial Final J. at 5-

6.) In fact, courts have rejected claims of purported hardship in multi-party cases where all 

claims against a defendant seeking Rule 54(b) certification are dismissed. See, e.g., U.S. ex rel. 

Fent v. L-3 Commc’ns Aero Tech LLC, No. 05-CV-0265-CVE-SAJ, 2008 WL 697302, at *2–3 

(N.D. Okla. Mar. 12, 2008) (finding no basis for defendant’s speculation that it would face 

hardship from the “expense and distraction” of participating in discovery where it had been 

formally terminated as a party). Swallow has been dismissed as a party and the docket reflects 

his dismissal. He thus faces no hardship from awaiting final resolution of the remaining claims. 

See id. 

Second, because Swallow is the prevailing party, his motion is at odds with the purpose 

of the Federal Rules of Civil Procedure 54(b). See, e.g., Onyx Properties LLC v. Bd. of Cty. 

Comm’rs of Elbert Cty., 916 F. Supp. 2d 1191, 1210 (D. Colo. 2012). “Rule 54(b) orders are the 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 11 of 14
12

exception, usually entered at the request of the losing party” and should not be entered “unless 

the losing party requests it.” Exchange Nat’l Bank of Chicago v. Daniels, 763 F.2d 286, 291 (7th 

Cir. 1985). In Onyx Properties, the prevailing party sought “to force the losing party to seek (or 

not seek) appellate relief,” arguing that it should not have to wait until the final resolution of all 

remaining claims, which could be several years, to find out if the losing party intended to appeal 

the pertinent decision. 916 F. Supp. 2d at 1211. The district court denied the Rule 54(b) motion, 

finding that the prevailing party would not endure any hardship from the delay and that in any 

event, such equitable interest “does not outweigh Rule 54(b)’s policy of preventing piecemeal 

appeals.” Id.; see also Patriot Mfg. LLC v. Hartwig, Inc., No. 10-1206-EFM-KGG, 2014 WL 

4538059, at *2 (D. Kan. Sept. 11, 2014) (denying Rule 54(b) certification where the losing party 

was not seeking immediate appeal and expressed a willingness to wait). This Court should 

similarly reject Swallow’s attempt to invert the purpose of Rule 54(b) “from one of enhancing 

the appellate rights of a losing party . . . to one in which a prevailing party could prematurely 

force an appeal of part of a case by a losing party, who must comply with timeliness 

requirements for exercising appellate rights.” Stewart v. Gates, 277 F.R.D. 33, 36 (D.D.C. 

2011). 

Finally, the FEC faces a substantial burden if the Court grants Swallow’s motion as it is 

framed. As discussed supra, the inclusion of the nationwide injunction significantly increases 

the incentives for the Commission to appeal. An appeal at this stage would require the 

Commission to devote its limited resources to both the appellate proceedings and to litigating the 

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13

unresolved claims in this Court.4

 Therefore, the Court should narrow the scope of the injunction 

to alleviate the burden on the FEC — the losing party on the relevant issue whose interests Rule 

54(b) is generally intended to protect. 

CONCLUSION 

 For the foregoing reasons, the Court should deny defendant John Swallow’s motion for 

partial final judgment, or in the alternative enter final judgment with a modified injunction 

limited to enjoining the FEC from enforcing 11 C.F.R. § 110.4(b)(1)(iii) against Swallow alone.5 

 Respectfully submitted, 

Lisa J. Stevenson (lstevenson@fec.gov) 

Acting General Counsel 

Kevin Deeley (kdeeley@fec.gov) 

Associate General Counsel 

Harry J. Summers (hsummers@fec.gov) 

Assistant General Counsel 

August 9, 2018 

Jacob S. Siler (jsiler@fec.gov) 

Attorney 

/s/ Sana Chaudhry 

Sana Chaudhry (schaudhry@fec.gov) 

Attorney 

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650

 

4

 Swallow argues that the Commission’s recent submission of a joint stipulation to stay the 

proceedings on the remaining claims without consulting Swallow’s counsel and without 

including Swallow in the case caption shows that “Commission acts as though the case against 

Mr. Swallow is complete.” (Swallow’s Mot. for Partial Final J. at 5-6.) As an initial matter, the 

FEC’s actions are entirely consistent with the court’s dismissal of Swallow as a party, as 

reflected on the docket sheet. Moreover, the fact that counsel for the remaining parties did not 

contact Swallow’s counsel to discuss the joint stipulation actually demonstrates that Swallow 

faces no burden from remaining in the case. And in any event, the filing of the joint stipulation 

has no bearing on Swallow’s burden to establish hardship. 

5

 To the extent that a motion for reconsideration would be an appropriate mechanism for 

the latter course, the standards for such reconsideration pursuant to Federal Rule 60(b) are met in 

this case, and in any event the Court has authority to modify its April Order at any time prior to 

judgment under Rule 54(b), as explained supra p. 7 n.3. 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 13 of 14
CERTIFICATE OF SERVICE 

 I hereby certify that on August 9, 2018, I electronically filed plaintiff Federal Election 

Commission’s Opposition to Defendant John Swallow’s Motion for Partial Final Judgment with 

the Clerk of the United States District Court for the District of Utah by using the Court’s 

CM/ECF system, which sent notification of such filing to the following: 

Allen Dickerson, Esq. (adickerson@ifs.org) 

Tyler L. Martinez, Esq. (tmartinez@ifs.org) 

Owen D. Yeates, Esq. (oyeates@ifs.org) 

INSTITUTE FOR FREE SPEECH 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

Scott C. Williams, Esq. (scwlegal@gmail.com) 

SCOTT C. WILLIAMS, LLC 

43 East 400 South 

Salt Lake City, Utah 84111 

Attorneys for Defendant John Swallow 

Karra J. Porter, Esq. (Karra.Porter@chrisjen.com) 

John D. Lauritzen, Esq. (jd.lauritzen@chrisjen.com) 

CHRISTENSEN & JENSEN, P.C. 

257 East 200 South, Suite 1100 

Salt Lake City, UT 84111 

Attorneys for Defendant Jeremy Johnson 

/s/ Sana Chaudhry 

Sana Chaudhry 

Attorney 

Federal Election Commission 

Case 2:15-cv-00439-DB Document 125 Filed 08/09/18 Page 14 of 14