ORAL ARGUMENT NOT SCHEDULED

No. 22-5336

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CAMPAIGN LEGAL CENTER 

and CATHERINE HINCKLEY KELLEY,

Plaintiffs-Appellees,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellant.

HILLARY FOR AMERICA and CORRECT THE RECORD,

Intervenors.

On Appeal from the United States District Court

for the District of Columbia, No. 1:19-cv-02336-JEB

Before the Honorable James E. Boasberg

PLAINTIFFS-APPELLEES’ REPLY 

IN SUPPORT OF MOTION TO DISMISS

Tara Malloy (DC Bar No. 988280)

 tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

Counsel for Plaintiffs-Appellees

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF ABBREVIATIONS......................................................................iv

SUMMARY OF ARGUMENT.................................................................................1

ARGUMENT.............................................................................................................3

I. The FEC has cited no authority excusing the forfeiture of its arguments............3

II. No “exceptional circumstances” justify allowing this appeal to proceed. ...........6

III.This appeal is moot...............................................................................................9

CONCLUSION........................................................................................................11

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TABLE OF AUTHORITIES

Cases: Page

Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 

2009) .....................................................................................................................3

CLC v. FEC, 31 F.4th 781 (D.C. Cir. 2022)..........................................................4, 7

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 

2015) .....................................................................................................................4

District of Columbia v. Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984) ..............6

Nat. Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977)..............................4

Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416 (D.C. Cir. 1992).........7

United States v. Dillon, 738 F.3d 284 (D.C. Cir. 2013) ............................................3

United States v. Williams, 504 U.S. 36, 41 (1992)....................................................4

Statutes:

52 U.S.C. § 30109(a)(8)(C) .............................................................................1, 5, 10

Other Materials:

Complaint, CLC v. Correct the Record & Hillary for America, No. 23-

cv-75 (D.D.C. Jan. 10, 2023)............................................................................1, 4

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GLOSSARY OF ABBREVIATIONS

CLC Campaign Legal Center

FEC Federal Election Commission

FECA Federal Election Campaign Act

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SUMMARY OF ARGUMENT

On December 8, 2022, the district court granted summary judgment in favor 

of plaintiffs Campaign Legal Center (“CLC”) and Catherine Hinckley Kelley, 

finding that the Federal Election Commission’s “dismissal of Plaintiffs’ complaint 

was contrary to law” and remanding the matter for “the Commission to conform with 

this decision within 30 days.” Add. 20, 21.

At no point in the more than three years of litigation preceding that ruling did

the FEC appear to defend its dismissal. Instead, respondents Correct the Record and 

Hillary for America intervened to do so. Upon remand, the FEC chose to take no 

action to conform with the district court’s order, conveying that decision in a 

December 21, 2022 motion to stay the remand order indefinitely pending an appeal. 

Despite filing its motion to stay almost two weeks into its thirty-day 

conformance window, the FEC did not seek an expedited ruling, nor any other 

emergency relief, and predictably, the district court had yet to rule when the thirtyday period drew to a close. Accordingly, after the conformance period expired, CLC 

exercised its right under the Federal Election Campaign Act (“FECA”), 52 U.S.C. 

§ 30109(a)(8)(C), to file an independent private action against respondents, seeking

to compel them to report the undisclosed in-kind contributions resulting from their 

coordinated spending in the 2016 elections. See Compl., CLC v. Correct the Record 

& Hillary for America, No. 23-cv-75 (D.D.C. Jan. 10, 2023).

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As even a cursory review of this history confirms, the FEC’s forfeiture of the 

arguments it now seeks to raise has been willful and complete, and its appeal should 

be dismissed. It offers no authority that would suggest otherwise, nor any other 

sound basis for rescuing the agency from this predicament of its own making. 

Indeed, instead of justifying its failure to appear below, the FEC’s opposition

exposes another infirmity in its appeal, revealing that the FEC’s third issue on appeal 

is a collateral attack on CLC’s standing in its suit against Correct the Record and 

Hillary for America. See FEC Opp’n 6-7 & n.2. But this Court has already confirmed 

plaintiffs’ informational standing here, and CLC’s private action is a different case.

The FEC cannot escape the effects of its deliberate failure to preserve its rights in 

this action by challenging the district court’s jurisdiction over another one.

The FEC otherwise devotes much of its opposition, see id. at 14-18, to 

combating the charge that its appeal is not just forfeited, but moot. It is both. The

December 8 order has no continuing effect on the FEC’s rights and responsibilities 

given the agency’s failure to conform on remand and its termination of the 

administrative proceedings underlying this suit. The only remaining “interest” the 

FEC asserts here is in guarding the “exclusivity” of its “enforcement authority” by 

blocking CLC’s duly filed private action. Id. at 14-15. But this illusory affront to the 

Commission’s “authority” is not a cognizable legal injury. The FEC’s appeal should 

be dismissed as both forfeited and moot. 

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ARGUMENT

I. The FEC has cited no authority excusing the forfeiture of its arguments. 

It is well-settled that when a party “did not argue the point before the District 

Court,” this Court “generally inquire[s] no further into the matter.” United States v. 

Dillon, 738 F.3d 284, 293 (D.C. Cir. 2013). The FEC has identified no case that 

supports a departure from this rule, much less one that would allow a willfully 

defaulting party to mount a last-ditch appeal only after the result below was not to 

its liking.

1. The FEC argues that it has not forfeited all of its arguments because the 

district court “plainly passed upon two of the three issues the Commission seeks to 

raise on appeal,” i.e., whether the controlling Commissioners’ rationale rested on 

impermissible statutory and regulatory interpretations and whether their evaluation 

of the record was arbitrary and capricious. FEC Opp’n 6. But the two cases the FEC 

cites did not consider a deliberate and sustained default comparable to the FEC’s

here, but rather involved disputes among active litigants about the degree to which 

a single issue had in fact been “pressed” or “passed upon” by the lower court. See 

id. (citing Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir. 

2009); United States v. Williams, 504 U.S. 36, 41 (1992)). The FEC has identified

no case that considered, much less permitted, an immediate appeal to this Court by 

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a party that presented no legal arguments below and effectively remained in default 

throughout the district court proceedings. 

The FEC also does not cite any authority to support its attempt to avoid a 

finding of forfeiture by stepping into the shoes of intervenors. See FEC Opp’n 7. 

And its attempt to piggyback on another party’s arguments is particularly misplaced 

here, given that intervenors have chosen not to appeal the December 8 order, but

instead to litigate these issues in CLC’s ongoing private action.1

2. As to the third question the FEC seeks to raise on appeal, the 

Commission concedes it was neither raised by intervenors nor considered by the 

district court; instead, it claims that it is a question of “subject-matter jurisdiction” 

and consequently cannot be forfeited. FEC Opp’n 4, 6. But the problem is that the 

FEC is not contesting the district court’s jurisdiction to hear this case—which this 

Court has already confirmed, CLC v. FEC, 31 F.4th 781 (D.C. Cir. 2022), and the 

FEC claims not to dispute. See FEC Opp’n 6 n.2. Instead, the FEC is purporting to 

challenge a different court’s jurisdiction to hear a different case, namely, CLC’s 

private action,. See id. (citing Compl. ¶¶ 79-82, Correct the Record, No. 23-cv-75,

1

 Nor is it apparent that the FEC’s and intervenors’ interests are aligned such that 

any identity between these parties can be assumed. See, e.g., Crossroads Grassroots 

Policy Strategies v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015) (“[B]y treating general 

alignment as dispositive, the district court went against the weight of authority in 

this Circuit.”); Nat. Res. Def. Council v. Costle, 561 F.2d 904, 912 (D.C. Cir. 1977).

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and arguing that CLC “overreach[ed]” in terms of standing by “assert[ing] not only 

reporting violations but also a separate count for the making and accepting of 

excessive contributions”). Insofar as the FEC wishes to contest another court’s 

jurisdiction to hear certain counts of CLC’s complaint in the private action, it must 

do so in that case.

The FEC attempts to sidestep this obvious infirmity by framing the issue as 

whether the district court here “lacked jurisdiction to authorize a private suit based 

on allegations of violations of FECA’s contribution limits.” Id. But the district 

court’s remand order did not “authorize” CLC’s private right of action. Instead, 

CLC’s right to bring a private action accrued by operation of statute upon the 

Commission’s failure to conform with the December 8 order within thirty days. 

FECA does not require that the complainant seek an additional court “authorization” 

at this point. See 52 U.S.C. § 30109(a)(8)(C) (providing that a court “may declare 

that the [FEC’s] dismissal of the complaint . . . is contrary to law, and may direct the 

Commission to conform with such declaration within 30 days, failing which the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint”) (emphasis added). Unsurprisingly, 

the FEC does not identify any part of the remand order that “authorizes” a private 

action, nor any other order doing so. It is clear that the “third question” the FEC 

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identifies for appeal does not arise from the December 8 order or concern this case

at all.

3. Finally, the FEC suggests that disposing of the Commission’s appeal 

on a motion to dismiss is procedurally inappropriate because forfeiture is nonjurisdictional, so a merits panel must consider whether to hear the arguments the 

FEC failed to make below. But it cites no case supporting this point, and

acknowledges that District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1086 

(D.C. Cir. 1984), indicated the opposite. FEC Opp’n 18-19 & n.7. And unlike the 

cases it references—which typically involved forfeiture of only a subset of the issues 

raised by the parties—the FEC presented no arguments whatsoever below, and thus

has preserved nothing for a merits panel to consider. Furthermore, as plaintiffs have 

argued, see infra Part III, this appeal is also moot, providing a separate jurisdictional 

ground for its dismissal.

II. No “exceptional circumstances” justify allowing this appeal to proceed.

The FEC has failed to show any of the “exceptional circumstances” that this 

Court has found may warrant consideration of arguments that were not raised below. 

See, e.g., Air Florida, 750 F.2d at 1085.

Although the Commission claims this case “involves serious legal questions 

about the metes and bounds of the FEC’s internet exemption,” FEC Opp’n 14 (citing 

Add. 26), it does not suggest that these questions arise from “an intervening change”

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or “uncertainty in the state of the law.” Roosevelt v. E.I. Du Pont de Nemours & Co., 

958 F.2d 416, 419 n.5 (D.C. Cir. 1992). And even insofar as any open “legal issues” 

remain, they can be litigated in CLC’s ongoing private action.

The FEC also cannot demonstrate that dismissing its appeal would work “a 

miscarriage of justice.” Id. The Commission sat out this litigation for years, and

concedes that its initial failure to appear was due to a 2019 vote declining to 

authorize defense of suit, not to incapacity or a lack of quorum. See FEC Opp’n 9. 

The FEC attempts to excuse its absence by arguing that entry into the case was not 

possible until an August 2022 “change in the composition of its presidential 

appointees,” id. at 1, 10, but it elides the several other “decisional junctures” between 

June 2019 and August 2022 when new appointees joined the Commission and it 

nevertheless failed to appear, see Pls.’ Mot. to Dismiss 13-14 n.1. 

Even accepting that August 2022 marked a determinative “change” to the 

Commission’s membership causing it to “switch[] from default to defense,” FEC 

Opp’n 10, this still does not explain why the FEC failed to participate in summary 

judgment briefing following this Court’s ruling in CLC, 31 F.4th 781—which 

entirely postdated the new Commissioner’s arrival. And even after the Commission 

finally decided to appear on December 21, it still made no attempt to present 

arguments to the district court or move for reconsideration. 

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The FEC nonetheless claims that given the “unusual circumstances” of this 

case, hearing its forfeited appeal will not “incentivize gamesmanship” nor cause “a 

detrimental effect on the administration of justice.” FEC Opp’n 9. But it provides no 

grounds to hope that the “gamesmanship” and political infighting on the 

Commission that precipitated its three-year default is likely to abate in the future. 

There is every reason to believe that the agency’s dysfunction will recur—

particularly if the FEC is permitted to jump in and out of litigation as its internal 

politics shift, without penalty and regardless of the delay or prejudice it causes. See

Pls.’ Mot. to Dismiss at 12 (noting FEC’s acknowledgment that its appeal would 

cause delay).

The FEC also attempts to wave away its obligation to first move the district 

court to reconsider the December 8 order by claiming that “a post-judgment motion” 

would have been “a fruitless exercise and a waste of resources.” FEC Opp’n 12. But 

the same would presumably be true with respect to any default judgment; the lower

court’s possible reluctance to reconsider a recent decision cannot, in itself, excuse a 

party from first presenting its arguments to the district court in the ordinary course. 

Finally, the Commission complains that “the natural result” of plaintiffs’ 

argument is that no party could “appeal[] an adverse judgment after defaulting 

without seeking relief in the district court,” only to concede in the next sentence that, 

while this Court has not addressed the issue, some Circuits demand exactly that. Id.

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at 11. In cases where a default occurred through mistake or inadvertence, or where 

it was infeasible for the defaulting party to timely move the district court, greater 

solicitude might be warranted. No such exceptional circumstances exist here. 

III. This appeal is moot.

It is undisputed that the FEC elected not to conform with the district court’s 

December 8 remand order, and that the order imposes no further obligations on the 

Commission with respect to the administrative matter underlying this case. 

Accordingly, although the FEC’s precise arguments are still unclear at this stage, its

appeal appears to be moot. At minimum, the FEC’s failure to identify any continuing 

injury to its interests underscores that dismissing its appeal as forfeited would work 

no “miscarriage of justice.”

Not only does the December 8 order impose no further obligations on the FEC

with respect to plaintiffs’ administrative complaint, it also does not affect any 

authoritative Commission position or policy. The district court considered a

Statement of Reasons issued by only two Commissioners. Add. 7. This minority 

opinion has no precedential effect or even relevance beyond the administrative 

matter underlying this case. 

The FEC concedes that “the underlying controlling Commissioner rationale 

is not binding in a later agency proceeding,” but nonetheless maintains that the 

“District Court’s opinion has continuing legal effect.” FEC Opp’n 14. The 

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Commission fails, however, to answer the critical question: a “continuing legal 

effect” on what? During the remand period, the December 8 order had the “legal 

effect” of directing the Commission to conform, but the Commission declined to do 

so. Upon expiration of the conformance period and the filing of a citizen suit, that 

directive to conform ceased to have any practical significance. 

Indeed, the only continuing “effect” of the remand order that the FEC posits

is its supposed impingement on the Commission’s “exclusive enforcement 

authority” under FECA. Id. at 14-15. But the remand order did not limit or 

“undermine” the Commission’s authority. Id. at 14. On the contrary, it returned to 

the Commission an administrative proceeding that it had closed, thus renewing the 

Commission’s authority to take further enforcement action. What ended the 

Commission’s “enforcement authority” was its own decision not to use it on remand.

And it was FECA that then authorized CLC to “bring . . . a civil action to remedy the 

violation involved in the original complaint.” 52 U.S.C. § 30109(a)(8)(C).

At base, the Commission’s apparent goal is simply to claw back CLC’s duly 

filed private action. But an agency has no valid “legal interest” in blocking lawsuits 

to which it is not a party, particularly when such suits pose no conceivable future 

obligation on the agency and arise by direct operation of the agency’s organizing

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statute.

2 And insofar as the FEC wishes to challenge subject-matter jurisdiction in 

CLC’s private action, it has appeared in the wrong case and must vindicate this 

“interest” elsewhere.

CONCLUSION

For the foregoing reasons, the Commission’s appeal should be dismissed.

Dated: February 23, 2023

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

 tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 

1020509)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Attorneys for Plaintiffs-Appellees

2 The FEC cites Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951, 

952-53 (D.C. Cir. 1998), for the proposition that this appeal is not moot. FEC Opp’n 

17 & n.5. But that stemmed from a delay case, where the private action was filed 

while the Commission was still considering the plaintiff’s administrative complaint. 

Although the initiation of a private action following a delay case might divest the 

FEC of its “authority” over an open enforcement matter, no such “injury” occurs 

when a private action is predicated on a dismissal case. CLC’s private action has no 

effect on the FEC’s “enforcement authority” over an administrative matter the FEC 

has already chosen, twice, not to pursue.

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. R. 27(d)(1)(E)(2) 

because the brief contains 2,578 words, excluding the parts of the brief exempted by 

Fed. R. App. P. 32(f). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the brief 

uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman.

/s/ Tara Malloy

Tara Malloy 

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

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CERTIFICATE OF SERVICE

I hereby certify that on February 23, 2023, I electronically filed this reply with 

the Clerk of Court for the United States Court of Appeals for the District of Columbia 

Circuit by using the appellate CM/ECF system, thereby serving all persons required 

to be served. 

/s/ Tara Malloy

Tara Malloy 

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

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