UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CAMPAIGN LEGAL CENTER, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 19-2336 (JEB) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

 and ) 

 ) REPLY TO MOTION 

Hillary for America, et al., ) FOR STAY PENDING APPEAL 

 ) 

 Defendant-Intervenors. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF MOTION FOR STAY OF REMAND 

ORDER PENDING APPEAL 

The Federal Election Commission (“Commission” or “FEC”) has demonstrated in its 

Motion for a Stay of Remand Order Pending Appeal (Docket No. 13), that a stay of this Court’s 

December 8, 2022, Order is warranted to permit the FEC to seek further review at the Court of 

Appeals.1 In its opposition (Docket No. 75), plaintiff argues this order may not be a final 

1

 The Commission is filing this reply brief on an expedited basis following the submission 

of plaintiffs’ opposition on Wednesday January 4, 2023, at 11:53 p.m. The conformance period 

runs thirty days after the Court’s December 8, 2022 order. Thirty days from that date is 

Saturday, January 7, 2023. Because the conformance period ends on a Saturday, however, the 

conformance window closes on Monday, January 9. See Fed. R. Civ. P. 6(a)(1)(C). The 

Commission seeks a stay order in advance of that date. 

 Contrary to plaintiffs’ representation (Opp’n at 9 n.2), counsel for the Commission 

proposed a stipulated extension of the conformance period and an agreed briefing schedule in 

light of the intervening holidays. Counsel for plaintiffs indicated that the extension would be of 

insufficient benefit and declined. 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 1 of 7
2 

appealable order, that the Commission has waived arguments, and it is unlikely to succeed. As 

explained below, circuit precedent dictates that the order here is appealable; the arguments 

presented by the parties, including the intervening defendants in this proceeding, may properly 

be reviewed on appeal; and the questions presented in this case are worthy of such consideration. 

ARGUMENT 

1. Contrary to what plaintiff argues in its opposition (Opp’n at 7-8.), absent a stay of 

the order remanding to the agency, the injury suffered by the agency satisfies the irreparable 

harm standard. The Commission has shown that irreparable harm is established by a “de facto

deprivation of the basic right to appeal,” which would be the case here. (Mot. at 3 quoting 

Republican Nat’l Comm. v. Pelosi, No. 22-659, 2022 WL 1604670, at *4 (D.D.C. May 20, 

2022).) Here, without a stay the Commission would be forced to conform and give up the right 

to appeal or give up its exclusive jurisdiction over this case. (Mot. at 3-5.). 

2. In response, plaintiffs are mistaken when they argue that the remand order at issue 

here is not an appealable order. (Opp’n at 9-13.) The Commission is permitted to appeal under 

an exception to the finality requirement because an “agency cannot later challenge its own 

actions complying with a remand order, whereas a private party dissatisfied with the action on 

remand may still challenge the remanded proceedings” after they are complete. Sierra Club v. 

U.S. Dep’t of Agric., 716 F.3d 653, 656-57 (D.C. Cir. 2013). The D.C. Circuit has been able to 

decide cases the FEC appealed from remand orders to the agency and has determined that is the 

proper course. See, e.g., Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988) (appeal 

from remand order from district court); Democratic Cong. Campaign Comm. v. FEC (“DCCC”), 

831 F.2d 1131, 1135 (D.C. Cir. 1987) (explaining that remand should be remedy rather than 

district court “dictating the ultimate outcome”). Indeed, if the FEC complied with the Court 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 2 of 7
3 

order in a way that CLC urges here, the agency could hardly sue itself for further review of the 

initial decision. The NRSC case proves this point. CLC observes that the case establishes that 

“the D.C. Circuit may still defer to the views of the original controlling Commissioners” (Opp’n 

at 14 n.4), but points to no procedural mechanism by which the FEC itself could appeal the case 

to that court. 

To illustrate the point, FECA requires the Commission to attempt conciliation prior to the 

filing of any enforcement action against an administrative respondent, and any conciliation 

agreement is a “complete bar to any further action by the Commission.” 52 U.S.C. 

§ 30109(4)(A)(i). If the Commission conformed with the Court order by reaching a conciliation 

agreement, it could not then appeal the Court’s ruling. 

True, the Commission could conform with the Court’s ruling by asserting another basis 

for nonenforcement, which presumably CLC would challenge again. But it could not reassert the 

basis for dismissal previously relied on by the controlling Commissioners and rejected by the 

Court. The cases on which plaintiffs rely involved appeals by private intervening defendants, 

who do not come within the exception to finality. (See Opp’n at 10 (citing CREW v., No.18-

5136, 2018 WL 5115542, at *1 (D.C. Cir. Sept. 19, 2018) (per curiam); see also CREW v. FEC, 

No. 16-5300, 2017 WL 4957233, at *1 (D.C. Cir. Apr. 4, 2017) (per curiam); Democratic Nat’l 

Committee v. FEC, No. 99-5123, 1999 WL 728351, at *1 (D.C. Cir. Aug. 4, 1999) (per curiam)). 

3. The Commission, by not appearing earlier in this case, has not waived its 

arguments as plaintiffs claim. (Opp. at 8-9.). Courts of appeals, including the D.C. Circuit, have 

permitted defaulting governmental entities and other parties to appeal default judgments entered 

after non-appearance in the district court. See Gates v. Syrian Arab Republic, 646 F.3d 1, 3 

(D.C. Cir. 2011) (holding appeal from default judgment in abeyance pending further district 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 3 of 7
4 

court action and then ruling on the merits even though party had not first presented the 

arguments to the district court); Stelly v. Duriso, 982 F.3d 403, 406-07 (5th Cir. 2020)

(permitting party who evaded service and did not appear in district court prior to default 

judgment to appeal without first moving for reconsideration and vacating the default judgment); 

cf. Consarc Corp. v. Iraqi Ministry, 27 F.3d 695 (D.C. Cir. 1994) (concluding that government 

agency not named in original action had not timely challenged default judgment against nonappearing foreign entity because the agency “could have intervened after the [default] judgment 

and appealed within the time limit”); Pulliam v. Pulliam, 478 F.2d 935 (D.C. Cir. 1973) (faulting 

defaulting party for not immediately appealing default judgment). To be sure, a party subject to 

a default judgment is “unable to raise any fact questions that were not brought before the district 

court” and may forfeit other defenses not affirmatively pled, but “if the existing record and 

pleadings do not support the judgment, the defaulting party can prevail on appeal without having 

raised the issues first in the district court.” Stelly, 982 F.3d at 407. Because this is a case on 

review of an agency nonenforcement action, the “entire case on review is a question of law, and 

only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 

(D.C. Cir. 1993). There is, therefore, no inherent barrier to a defaulting agency from seeking 

review of that question of law on appeal. 

The fact that this case was decided on summary judgment after an intervenor defendant 

appeared in the action, rather than a default judgment for non-appearance of the agency, only 

strengthens the argument that the Commission is permitted to raise on appeal arguments that 

were pressed or passed on by the district court. That intervenor made the arguments the FEC 

seeks to raise on appeal, so the unfairness plaintiff claims (Opp. at 8-9) is misplaced. As a 

general matter, litigants may not advance issues that have not been raised by the parties or passed 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 4 of 7
5 

on by the District Court, but here the questions to be appealed all were raised and argued by the 

plaintiffs and the intervenor-defendants that appeared before this Court. These are the issues 

decided by the District Court and there is no bar to appellate consideration of these issues or 

unfair surprise for the plaintiff in having to respond to them. Furthermore, even if those issues 

had not been raised or decided, the appellate court may still consider them in “exceptional 

circumstances.” Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 

1992) (describing some qualifying circumstances). Here, the composition of a multi-member 

body of presidential appointees changed substantially. At the first decisional juncture thereafter, 

the agency approach to authorizing litigation here, a question committed to Commissioner 

discretion, switched from default to defense. 52 U.S.C. §§ 30106(c), 30107(a)(6,) (setting fourCommissioner voting requirements for certain decisions including defense of section 30109(a)(8) 

actions). That is an exceptional circumstance. 

4. The questions presented in this case are at least worthy of consideration by the 

Court of Appeals (Mot. at 6-10.) As explained, the Commission is entitled to deference with 

respect to interpreting ambiguous regulations and the statute. Despite plaintiff’s argument to the 

contrary, the internet exemption was plainly meant to exempt some input costs that result in 

unpaid internet communications. (See Mem. Op. 14-15 (acknowledging Commission precedent 

exempts certain “input costs” from regulation while concluding that other “creation and 

production costs” are nonexempt).) The issue here is how far that exemption extends, a question 

on which the controlling Commissioners should have received deference. At a minimum, the 

permissible scope of the exception is a question worthy of appellate review. 

CLC’s opposition devotes several pages to a straw-man argument about the text of the 

internet exemption regulation that the Commission did not make. (Opp’n at 15-19.) Contrary to 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 5 of 7
6 

CLC assertions, the Commission nowhere said or suggested that the “relevant regulatory text” 

entirely controlled the controlling Commissioners’ application of the internet exemption. (Id. at 

16; see Mot. at 7 (stating only that “the controlling Commissioners’ Statement of Reasons based 

its conclusion . . . on the ‘plain text of’ the internet exemption and prior enforcement cases” 

(citing J.A. 83-84 [SOR 12-13]) (emphasis added).) Indeed, the entire thrust of the 

Commission’s argument was that the controlling Commissioners’ application of that exemption 

in this case was permissible because it was not “‘inconsistent with the regulation.’” (Mot. at 7 

(citing Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019).) As the Court held in Kisor, deference to 

Commission construction of an agency’s own regulation “can arise only if a regulation is 

genuinely ambiguous.” Kisor, 139 S. Ct. at 2414. There would be no need to invoke such 

deference if the Commission were arguing that the text of the regulation unambiguously 

controlled the outcome here. 

Rather, the Commission was making a different argument with which CLC apparently 

agrees, that neither FECA nor “the relevant regulatory text” dictates the outcome here because it 

“is silent as to the key legal issue in this case.” (Opp’n at 16; see Mot. at 8 (noting that FECA 

“does not explicitly address how” to apply campaign finance rules “to internet communications 

and the costs to create them”). But precisely because neither FECA nor the Commission’s 

regulations are inconsistent with the reasoning of the controlling Commissioners, their 

interpretation of the regulation should have received controlling weight. Kisor, 139 S. Ct. at 

2415. 

 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 6 of 7
7 

CONCLUSION 

For the foregoing reasons, this Court should grant the Commission’s motion to stay the 

judgment pending appeal. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar. No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

January 6, 2023 

 

Case 1:19-cv-02336-JEB Document 76 Filed 01/06/23 Page 7 of 7