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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 1 of 29 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5336 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER 

and CATHERINE HINKLEY KELLEY, 

Plaintiffs-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellant, 

and 

HILLARY FOR AMERICA and CORRECT THE RECORD, 

Intervenor-Appellees. 

On Appeal from the United States District Court for the District of Columbia 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS-APPELLEES’ MOTION TO DISMISS 

Lisa J. Stevenson Jacob S. Siler 

Acting General Counsel Assistant General Counsel 

Kevin Deeley Greg J. Mueller 

Associate General Counsel Attorney 

February 16, 2023 Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 
USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 2 of 29 

TABLE OF CONTENTS 

Page 

INTRODUCTION ............................................................................................... 1 

BACKGROUND ................................................................................................. 2 

ARGUMENT....................................................................................................... 5 

I. The Commission Has Not Forfeited an Appeal Based On 

Issues Actually Decided by The District Court And 

Pressed by Intervenors ............................................................................... 5 

II. Even If the Forfeiture Doctrine Applied Here, Exceptional 

Circumstances Would Permit This Court to Consider 

The Commission’s Arguments ................................................................ 13 

III. Dismissal Is Not an Appropriate Remedy for 

Forfeited Arguments ................................................................................ 18 

CONCLUSION.................................................................................................. 20 

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TABLE OF AUTHORITIES 

Cases Page (s) 

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ..................................................... 6 

Blackmon-Malloy v. U.S. Capitol Police Bd., 

 575 F.3d 699 (D.C. Cir. 2009) ....................................................................... 5 

Camp v. Pitts, 411 U.S. 138 (1973) ..................................................................... 8 

Campaign Legal Ctr. v. FEC, 1:20-cv-0809 

(ABJ) (Docket No. 32) (D.D.C. April 21, 2022) ........................................... 15 

Campaign Legal Ctr. v. FEC, 20-cv-1778-RCL 

(Docket No. 24) (D.D.C. Feb. 11, 2021) ....................................................... 15 

Campaign Legal Ctr. v. FEC, 21-cv-406 (TJK) 

(Docket No. 23) (D.D.C. May 3, 2022) ......................................................... 15 

Campaign Legal Ctr. v. Correct the Record, Civ. No. 23-075 

(Docket No. 1) (D.D.C. Jan. 10, 2023) ............................................................ 7 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ............................. 6 

Citizens for Responsibility & Ethics in Wash. v. Am. Action 

Network, 590 F. Supp. 3d 164 (D.D.C. 2022) ............................................... 16 

Citizens for Responsibility & Ethics in Wash. v. Am. Action 

Network, No. 22-7038 (D.C. Cir. Mar. 31, 2022) ......................................... 16 

Combat Veterans for Congress Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) ......................................................................... 9 

Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987) ....................... 18 

Consarc Corp. v. Iraqi Ministry, 27 F.3d 695 ................................................... 11 

Democratic Senatorial Campaign Comm. v. FEC, 

139 F.3d 951 (D.C. Cir. 1998) ....................................................................... 17 

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Democratic Senatorial Campaign Comm. v. FEC, 

 No. 96-cv-2184 (Docket No. 56) (D.D.C. July 15, 1997) ............................ 17 

Democratic Senatorial Campaign Comm. v. Nat’l Republican Senatorial 

Comm., No. 97-cv-1493 (D.D.C. filed June 30, 1997) .................................. 17 

Democratic Senatorial Campaign Comm. v. FEC, 

No. 99-5429 (D.C. Cir. Apr. 4, 2000) ............................................................ 17 

District of Columbia v. Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984) ....... 18 

Doe v. McMillan, 459 F.2d 1304 (D.C. Cir. 1972) ............................................ 19 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ........................................................... 2, 16, 17 

Gates v. Syrian Arab Republic, 646 F.3d 1 (D.C. Cir. 2011) ............................ 11 

Giffords v. FEC, 1:19-cv-1192 (EGS) 

(Docket No. 75) (D.D.C. Nov. 1, 2021) ........................................................ 15 

Hormel v. Helvering, 312 U.S. 552 (1941) .......................................................... 8 

In re Carter-Mondale Reelection Comm., Inc., 

642 F.2d 538 (D.C. Cir. 1980) ....................................................................... 14 

Johnston v. Reily, 160 F.2d 249 (D.C. Cir. 1947) ............................................. 19 

Marshall Cty. Health Care Auth. v. Shalala, 

988 F.2d 1221 (D.C. Cir. 1993) ....................................................................... 8 

Nat. Res. Def. Council, Inc. v. Env’t Prot. Agency, 

824 F.2d 1146 (D.C. Cir. 1987) ................................................................... 7, 8 

Potter v. District of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ........................... 7 

Prime Rate Premium Fin. Corp. v. Larson, 

930 F.3d 759 (6th Cir. 2019) ......................................................................... 11 

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Pulliam v. Pulliam, 478 F.2d 935 (D.C. Cir. 1973) ........................................... 11 

Roosevelt v. E.I Du Pont de Nemours & Co., 

958 F.2d 416 (D.C. Cir. 1992) ............................................................. 5, 13, 19 

Shatsky v. Palestine Liberation Org., 

955 F.3d 1016 (D.C. Cir. 2020)....................................................................... 8 

Stelly v. Duriso, 982 F.3d 403 (5th Cir. 2020)............................................. 11, 13 

Taxpayers Watchdog, Inc. v. Stanley, 

819 F.2d 294 (D.C. Cir. 1987) ....................................................................... 20 

United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015)................................. 6 

United States v. Williams, 504 U.S. 36 (D.C. Cir. 1992) .................................... 5 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ...................................... 9, 10 

Statutes 

52 U.S.C. § 30106(a)(1) ....................................................................................... 9 

52 U.S.C. § 30106(c) ........................................................................................... 9 

52 U.S.C. § 30107(a)(6) ....................................................................................... 9 

52 U.S.C. § 30107(e) ......................................................................................... 14 

52 U.S.C. § 30109(a) ......................................................................................... 16 

52 U.S.C. § 30109(a)(2) ....................................................................................... 2 

52 U.S.C. § 30109(a)(8) ................................................................................... 2, 3 

52 U.S.C. § 30109(a)(8)(C) ..................................................................... 5, 14, 15 

52 U.S.C. § 30109(a)(9) ..................................................................................... 16 

iv 
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Rules and Regulations 

Fed. R. App. P. 27(d)(1)(E) ................................................................................. 1 

Fed. R. App. P. 27(d)(2)(B) ................................................................................. 1 

Fed. R. Civ. P. 55(d) .......................................................................................... 12 

11 C.F.R. § 100.26 ............................................................................................... 3 

11 C.F.R. § 100.94 ............................................................................................... 3 

11 C.F.R. § 100.155 ............................................................................................. 3 

Internet Communications, 

71 Fed. Reg. 18,589 (Apr. 12, 2006) ............................................................... 3 

v 
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GLOSSARY 

Add. Addendum to Plaintiffs-Appellees’ Motion to Dismiss 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

vi 
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INTRODUCTION 

Defendant-appellant Federal Election Commission (“FEC” or 

“Commission”) opposes plaintiffs-appellees’ motion to dismiss. The Commission 

has not forfeited an appeal based on issues actually decided by the District Court 

and pressed by the intervening parties who appeared below, Correct the Record 

and Hillary for America (collectively, “Intervenors”). Plaintiff-appellees 

Campaign Legal Center and Catherine Hinkley Kelley (“Complainants”) argue the 

case should be dismissed because the Commission has waived or forfeited its 

arguments, but they fail to acknowledge these issues were actually litigated by the 

parties below, ruled upon by the District Court, or are jurisdictional and can be 

raised at any time. While the Commission’s default may mean that it cannot here 

assert arguments that were not pressed or passed upon at the District Court, there is 

no unfairness to permitting it to seek appellate review of issues actually litigated by 

the parties below. Even assuming some forfeiture occurred, the exceptional 

circumstances presented here — where the Commission seeks to present pure legal 

issues that involve issues of great importance regarding federal campaign finance 

law following a change in the composition of its presidential appointees — permit 

this Court to exercise its discretion to consider this appeal. Finally, even if 

Complainants’ waiver arguments are correct, Complainants would not be entitled 

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to the dismissal they seek. This Court properly may review the merits decision 

issued by the District Court. 

BACKGROUND 

This is an appeal from a district court judgment finding that a Commission 

dismissal of an administrative complaint was contrary to law. See 52 U.S.C. 

§ 30109(a)(8). The consideration of potential enforcement proceedings underlying 

this action began when Complainants filed an administrative complaint with the 

FEC alleging that Intervenors violated campaign finance reporting requirements 

and contribution restrictions in the Federal Election Campaign Act (“FECA”). The 

Commission split 2-2 at the first step of the enforcement process, the determination 

whether based on Complainants’ allegations there was “reason to believe” a FECA 

violation occurred and to open an investigation. Add. 7; see 52 U.S.C. 

§ 30109(a)(2); Add. 5 (explaining FEC enforcement procedures). 

The two Commissioners who voted against further enforcement issued a 

Statement of Reasons explaining the basis of their vote. (Add. 7.) “Since those 

Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency's reasons for acting as it did.” FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). These 

controlling Commissioners concluded that certain of the conduct challenged in 

Complainants’ administrative complaint was exempt from FECA’s limits on in2 
USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 10 of 29 

kind contributions and disclosure requirements because they fell within certain 

FEC regulations, collectively known as the “internet exemption,” that exclude 

unpaid internet activity from the statutory definitions of contributions or 

expenditures. Add. 7; see 11 C.F.R. § 100.26; Internet Communications, 71 Fed. 

Reg. 18,589, 18,603-07 (Apr. 12, 2006); see also 11 C.F.R. §§ 100.94, 100.155. 

The controlling Commissioners also concluded that the record did not suggest that 

the Intervenors coordinated on any activity beyond that which was exempt from 

regulation, and therefore there was no other activity to be reported or subjected to 

FECA’s contribution limits. (Add. 7.) 

Complainants sought judicial review of the dismissal under 52 U.S.C. 

§ 30109(a)(8). After failing to garner the necessary four votes, the FEC did not 

appear in the District Court. (See Joint Appendix at 222, (District Court Docket 

No. 43) (Oct. 16, 2020) (Commission vote to authorize defense of suit failed 3-1).) 

The District Court granted Intervenors’ motion to appear in the lawsuit and defend 

the dismissal. (Add. 8.) The case thus proceeded without the Commission’s 

involvement through final judgment. 

After an initial ruling on Complainants’ standing to sue was reversed by this 

Court, Complainants and Intervenors prepared summary judgment briefs arguing 

whether the controlling dismissal rationale was contrary to law. (Add. 9.) On 

December 8, 2022, the District Court granted summary judgment to Complainants. 

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(Add. 2-21.) The District Court concluded that the controlling Commissioners’ 

rationale was contrary to law in two respects. First, the District Court concluded 

that it was based on an impermissible interpretation of the internet exemption. 

(See Add. 11-15.) Second, the District Court concluded that the controlling 

Commissioners’ analysis of the record was arbitrary and capricious because it did 

not properly weigh certain evidence of coordination between the intervenors. 

(See Add. 15-18.) As relief, the District Court ordered the Commission to conform 

with its ruling within 30 days. (Add. 21.) 

On December 21, 2022, while the conformance period remained open, the 

Commission filed a timely appeal and sought a stay of the District Court’s order. 

(District Court Docket No. 72.) In this Court, the Commission seeks review of the 

two issues decided by the District Court: whether the controlling Commissioners’ 

analysis “was based on an impermissible interpretation of FECA and implementing 

regulations” and whether the controlling Commissioners’ interpretation of the 

record was arbitrary and capricious. (See Statement as to Issues on Appeal at 3 

(Doc. #1982721) (Jan. 23, 2023).) The Commission also seeks to present one 

additional issue going to the District Court’s subject-matter jurisdiction to issue an 

unqualified remand order on a multi-count administrative complaint where 

Complainants have Article III standing to pursue only some of those counts. 

(Id. at 2.) 

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When the District Court did not rule on the Commission’s motion before the 

end of the 30-day conformance period, Complainants filed a private suit pursuant 

to 52 U.S.C. § 30109(a)(8)(C).1

 The District Court subsequently denied the 

Commission’s motion to stay based on its view that Complainants’ filing of its 

private suit meant that any potential irreparable harm had already been realized and 

because the Commission’s appeal remained available to challenge that Court’s 

order. (Add. 27-28.) Complainants now move to dismiss that appeal. 

ARGUMENT 

I. THE COMMISSION HAS NOT FORFEITED AN APPEAL BASED 

ON ISSUES ACTUALLY DECIDED BY THE DISTRICT COURT 

AND PRESSED BY INTERVENORS 

Generally, it “is not [this Court’s] practice to entertain issues first raised on 

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

Cir. 1992). “That rule, however, does not apply where the district court 

nevertheless addressed the merits of the issue.” Blackmon-Malloy v. U.S. Capitol 

Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009); cf. United States v. Williams, 504 

U.S. 36, 41 (1992) (noting that Supreme Court’s “traditional rule” precluding 

review of questions “not pressed or passed upon below . . . operates (as it is 

The Commission does not agree that Complainants offered to extend the 

conformance deadline pending resolution of the stay motion at the district court 

(Mot. at 15 n.2), rather it was Complainants who declined to stipulate to an 

extension and schedule for briefing that question. 

5 

1 
 

2 

USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 13 of 29 

phrased) in the disjunctive, permitting review of an issue not pressed so long as it 

has been passed upon”) (internal quotation marks omitted). 

The District Court decision on review here plainly passed upon two of the 

three issues the Commission seeks to raise on appeal: whether the controlling 

rationale supporting dismissal of Complainants’ administrative complaint was 

based on an impermissible interpretation of FECA and FEC regulations and 

whether that rationale’s conclusions about alleged coordination between the 

Intervenors was arbitrary and capricious. (Add. 11-15 (concluding that the 

controlling rationale’s legal conclusions were “contrary to law and thus invalid”); 

Add. 15-18 (concluding that the controlling Commissioners’ “view of the record” 

was “arbitrary and capricious”).) The third issue the Commission seeks to press on 

appeal involves an attack on the District Court’s subject-matter jurisdiction and, 

because it goes to the court’s power to hear the case, “can never be waived or 

forfeited.” United States v. Miranda, 780 F.3d 1185, 1188 (D.C. Cir. 2015) (citing 

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)).2 

The Commission acknowledges that a prior panel of this Court concluded 

that Complainants established an informational injury based on their allegations 

that reporting provisions of FECA require additional information to be disclosed. 

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 790 (D.C. Cir. 2022). The 

Commission does not challenge that holding in this appeal. Rather, the 

Commission intends to argue that the District Court lacked jurisdiction to authorize 

a private suit based on allegations of violations of FECA’s contribution limits, 

enforcement of which would not have resulted in additional information being 

disclosed to Complainants. Complainants’ overreach beyond the ground for 

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That is enough to deny Complainants’ motion. But there is much more. The 

Commission’s arguments are also not forfeited because the two non-jurisdictional 

issues it raises were “asserted at the District Court level” — by the Intervenors. 

Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (internal 

quotation marks omitted). True, the Commission did not muster sufficient votes to 

defend its dismissal in Court. The Intervenors, however, participated from the 

earliest stages of this case and pressed each of the non-jurisdictional arguments the 

Commission here seeks to raise. Cf. Nat. Res. Def. Council, Inc. v. Env’t Prot. 

Agency, 824 F.2d 1146, 1151 (D.C. Cir. 1987) (explaining that administrative 

exhaustion requirement does not bar a party that did not participate in a rulemaking 

before an agency from pressing argument on judicial review “if the agency has had 

an opportunity to consider the identical issues . . . but which were raised by other 

parties”) (citation and internal quotation marks omitted). 

Because the Intervenors actively raised these issues at the District Court, 

Complainants’ arguments as to the policies underlying the forfeiture rule fall flat. 

(See Mot. at 7-10.) There is no risk that Complainants could be “‘surprised on 

standing identified by the Court of Appeals is now apparent through their 

complaint in the private suit, which asserts not only reporting violations but also a 

separate count for the making and accepting of excessive contributions. Compl. ¶¶ 

79-82, Campaign Legal Ctr. v. Correct the Record, Civ. No. 23-075 (Docket No. 

1) (Jan. 10, 2023). 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 15 of 29 

appeal by final decisions there upon which they have had no opportunity to 

introduce evidence.’” (Id. at 8 (quoting Hormel v. Helvering, 312 U.S. 552, 556 

(1941).) Nor is there any risk of “‘sandbagging the district court.’” (Id. (quoting 

Shatsky v. Palestine Liberation Org., 955 F.3d 1016, 1031 (D.C. Cir. 2020).) 

Complainants cannot claim unfair surprise when a party raises an issue on appeal 

that was actually pressed and decided below. See Shatsky, 955 F.3d at 1131 

(“[G]iven the parties’ full presentation of the issue before the district court . . . this 

case does not implicate concerns about sandbagging[.]”) They had every 

opportunity to develop arguments during three years of district court proceedings 

on these same issues when they were raised by the Intervenors. 

There is also no concern that Complainants will have been denied an 

opportunity to introduce evidence relevant to any appeal. (Mot. at 7-8.) 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 Cty. Health 

Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). The record relevant 

to that question is “the administrative record already in existence, not some new 

record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 

(1973). Despite its default below, the Commission submitted its certified 

administrative record during district court proceedings, and that record was 

available to all parties through the entire pendency of the litigation. (District Court 

8 
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Docket No. 25.) The Commission’s default did not deprive Complainants or the 

District Court of any record-building opportunity. 

If anything, the unusual circumstances leading to the Commission’s default 

suggest that permitting its appeal would not incentivize other parties to engage in 

gamesmanship. Unlike other parties that come before the courts, the Commission 

is an even-numbered multimember governmental agency regulating a portion of 

the political system whose membership rules legally mandate that no political party 

can have a majority for significant actions. 52 U.S.C. § 30106(a)(1); Combat 

Veterans for Congress Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. 

Cir. 2015); cf. Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016) (noting the 

FEC’s “unique mandate” whose actions “implicate[] fundamental rights”). The 

balanced structure Congress provided ensures that any Commission decision that 

requires four votes, which includes votes to defend litigation like the one 

Complainants brought here, require bipartisan buy-in. See 52 U.S.C. §§ 30106(c), 

30107(a)(6). But it also increases the chances that an evenly divided Commission 

will be unable to approve certain actions. That dynamic here resulted in a 

Commissioner who had supported Complainants’ position before the agency 

exercising discretion not to authorize the Commission to defend its dismissal in 

court, thereby causing that authorization vote to fail. (See Joint Appendix at 222, 

(District Court Docket No. 43) (Oct. 16, 2020).) Given the Commission’s unusual 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 17 of 29 

structure and the uncommon facts here, there is little chance that permitting the 

Commission to defend itself at this point would have a detrimental effect on the 

administration of justice. 

The Commission’s post-suit conduct also rebuts Complainants’ assertions of 

impropriety. Despite lacking authorization to defend itself in court, the 

Commission prepared and submitted its administrative record, pursuant to court 

order. (See District Court Docket No. 25.) As Complainants recognize (Mot. at 

13-14 n.1), the composition of the Commission changed substantially after the 

administrative proceedings at issue in this case. The most recent change occurred 

with a new Commissioner taking office on August 2, 2022. See FEC, Dara 

Lindenbaum Sworn in as Commissioner, https://www.fec.gov/updates/daralindenbaum-sworn-in-as-commissioner/ (Aug. 2, 2022). The agency’s approach to 

this litigation switched from default to defense at the first decisional juncture 

thereafter. The Commission’s default at earlier stages of the litigation was in no 

sense an attempt at gamesmanship or sandbagging but rather a product of changed 

membership. 

Although not framed in these terms, the natural result of Complainants’ 

argument would prevent any party from appealing an adverse judgment after 

defaulting without seeking relief in the district court. As courts have reasoned, 

however, “[n]o statute or rule of civil procedure requires a defaulting party to first 

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contest the default judgment in district court. In particular, Rule 55(c) itself makes 

clear that a party may move under Rule 60(b) to set aside a default judgment, but it 

does nothing to suggest that the party must do so.” Stelly v. Duriso, 982 F.3d 403, 

407 (5th Cir. 2020); see Prime Rate Premium Fin. Corp. v. Larson, 930 F.3d 759, 

768 (6th Cir. 2019) (“[W]e do not see anything in the Federal Rules that requires a 

party always to file a Rule 60(b) motion in order to appeal a default judgment[.]”). 

This Circuit does not appear to have directly addressed this question and there is “a 

circuit split on whether a party must file a Rule 60(b) motion challenging a default 

judgment in the district court prior to appealing,” Stelly, 982 F.3d at 406. The 

absence of a requirement in the Federal Rules suggests that the courts of appeal 

holding that no such motion is required have the better view. 

Although this Circuit has not directly addressed the issue, prior cases have 

declined to dismiss appeals from default judgments entered after a party failed to 

appear or make arguments to the district court prior to the appeal. See Gates v. 

Syrian Arab Republic, 646 F.3d 1, 3 (D.C. Cir. 2011); cf. Consarc Corp. v. Iraqi 

Ministry, 27 F.3d 695, 700 (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, 936 (D.C. Cir. 1973) (“[T]he question whether the default judgment was 

11 
 

USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 19 of 29 

properly entered in this case is not before us, since the defendant did not file a 

timely appeal from that judgment.”). Complainants dismiss “most of [these] 

cases” as “off point” (Mot. at 9), but they do not explain how the reasoning of 

those courts could be correct if it were true that a party necessarily forfeits an 

appeal by not first appearing in the district court. 

This case presents even less reason to require a party to seek relief at the 

district court before filing an appeal because the decision below was a summary 

judgment against the Commission after full briefing of purely legal issues by an 

intervenor.3

 Making a post-judgment motion to ask the District Court to reconsider 

its legal analysis on the same basis pressed by the Intervenors would have been a 

fruitless exercise and a waste of resources both on behalf of the parties and the 

court. The District Court had just rejected those arguments. Making them again 

would have been a needless formality. 

None of which is to say that in the usual case any party may decline to 

appear in the district court and then try the case anew at the court of appeals. Any 

issue capable of being forfeited or waived that is not presented to or decided by the 

district court remains forfeited. A defaulting party is “unable to raise any fact 

If the District Court had resolved this case by issuing a default judgment, it 

would still have had to address the merits of Complainants’ claim because the 

Commission is an agency of the United States. Fed. R. Civ. P. 55(d). 

12 

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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. The 

Commission’s appeal does not exceed those limitations, however, and so there is 

no basis to conclude that it has forfeited its appeal. 

II. EVEN IF THE FORFEITURE DOCTRINE APPLIED HERE, 

EXECEPTIONAL CIRCUMSTANCES WOULD PERMIT THIS 

COURT TO CONSIDER THE COMMISSION’S ARGUMENTS 

Though the Intervenor’s assertion and the District Court’s resolution of the 

non-jurisdictional issues the Commission seeks to press here were sufficient to 

preserve those issues for appellate review, this case also presents “exceptional 

circumstances” that would permit this Court to exercise discretion to consider 

otherwise forfeited issues. Roosevelt, 958 F.2d at 419 n.5. The atypical 

circumstances leading to this appeal described above qualify as exceptional. See 

supra pp. 2-5. Again, the Commission seeks to assert purely legal issues that do 

“not depend on any additional facts not considered by the district court.” Id. The 

basic question underlying this appeal — which involves the scope of a 

Commission regulation addressing the applicability of federal campaign finance 

contribution limits and disclosure requirements to communications on the internet 

— is unquestionably one of great importance. Indeed, the District Court indicated 

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that this case “involves serious legal questions about the metes and bounds of the 

FEC’s internet exemption.” (Add. 26.) 

Complainants argue that this case cannot present exceptional circumstances 

because the controlling rationale did not command four votes and is therefore not 

precedential. (Mot. at 13.) While Complainants’ premise regarding administrative 

authoritativeness may be correct, their conclusion does not follow. In this Court, 

the Commission challenges a district court order concluding that its controlling 

legal analysis is contrary to law. Even if the underlying controlling Commissioner 

rationale is not binding in a later agency proceeding, the District Court’s opinion 

has continuing legal effect. 

Beyond the effect the District Court’s analysis has on the scope of the 

Commission’s internet exemption, its order also continues to undermine the 

Commission’s exclusive enforcement authority. See 52 U.S.C. § 30107(e). 

Congress granted to the Commission exclusive authority to interpret and enforce 

FECA, subject only to the possibility that judicial review might declare its failure 

to act or dismissal “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); see In re 

Carter-Mondale Reelection Comm., Inc., 642 F.2d 538, 544-46 & n.9 (D.C. Cir. 

1980) (discussing importance of FEC’s “exclusive jurisdiction” given “the 

extremely delicate nature of the tremendous power entrusted to it”). Any third14 
 

4 

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party suit improperly authorized by a district court undermines the Commission’s 

interest in that exclusivity. 

The filing of Campaign Legal Center’s private civil action against the 

Intervenors after the District Court’s order does not divest the Commission of any 

interest in this appeal. The very fact of a four-vote Commission majority to vote to 

appeal indicates significant and bipartisan interest in this Court addressing the 

consequential interpretive questions presented regarding the scope of the agency’s 

internet exemption. See supra pp. 4-5. Complainants imply, but do not quite 

argue, that this case may be moot after their filing of a private suit against the 

Intervenors pursuant to 52 U.S.C. § 30109(a)(8)(C). (Mot. at 14-16.) The failure 

of the District Court to rule on the Commission’s motion to stay the remand order 

within the conformance period may have emboldened complainants to act hastily, 

but they did so at their own risk.4 If the District Court’s ruling was incorrect, as 

In every other prior private suit arising under the Federal Election Campaign 

Act it filed, Campaign Legal Center first sought permission to do so from the 

district court reviewing the Commission’s dismissal or failure to act. See, e.g., 

Order, Campaign Legal Ctr. v. FEC, 1:21-cv-406 (TJK) (Docket No. 23) (D.D.C. 

May 3, 2022) (granting Campaign Legal Center’s motion for order declaring FEC 

had not conformed); Order, Campaign Legal Ctr. v. FEC, 1:20-cv-809 (ABJ) 

(Docket No. 32) (D.D.C. Apr. 21, 2022) (same); Order, Campaign Legal Ctr. v. 

FEC, 1:20-cv-1778-RCL (Docket No. 24) (D.D.C. Feb. 11, 2021) (same); see also 

Giffords v. FEC, 1:19-cv-1192 (EGS) (Docket No. 75) (D.D.C. Nov. 1, 2021) 

(entering order declaring that FEC had failed to conform and that plaintiff had right 

to file private action). In one of those cases, Campaign Legal Center waited at 

least five months for the original reviewing court to confirm that the private right 

of action existed. See Order at 1, Campaign Legal Ctr. v. FEC, 1:20-cv-809 (ABJ) 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 23 of 29 

the Commission maintains, this Court could reverse it and remove the condition 

precedent contrary-to-law finding on which Campaign Legal Center’s private suit 

depends. See 52 U.S.C. § 30109(a)(9) (providing that court of appeals may “set[] 

aside, in whole or in part” any district court order under section 30109(a)); Citizens 

for Responsibility & Ethics in Wash. v. Am. Action Network, 590 F. Supp. 3d 164 

(D.D.C. 2022) (dismissing FECA private suit after intervening authority made 

clear that initial contrary-to-law ruling was in error), appeal docketed, No. 22-7038 

(D.C. Cir. Mar. 31, 2022); cf. FEC v. Nat’l Republican Senatorial Comm., 966 

F.2d 1471, 1475-77 (D.C. Cir. 1992) (reversing initial contrary-to-law 

determination in FEC’s post-remand enforcement action). That would terminate 

the private suit and restore the Commission’s enforcement exclusivity. 

This Circuit’s previous consideration of appeals associated with private suits 

arising under FECA similarly suggests that the Commission’s appeal is not moot. 

In one of the first suits filed under FECA’s private-suit provision, an FEC 

complainant sued an administrative respondent after a district court concluded that 

the Commission’s apparent inaction on the complaint was contrary to law. See 

(Docket No. 32) (D.D.C. April 21, 2022) (noting five months had elapsed since 

court had ruled FEC inaction on administrative complaint contrary to law). The 

only difference here is that the Commission appealed and took steps to stay the 

District Court ruling within the conformance period, which suggests that Campaign 

Legal Center may have hurriedly filed its private suit in an ineffective effort to 

preempt consideration by this Court. 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 24 of 29 

Democratic Senatorial Campaign Comm. v. Nat’l Republican Senatorial Comm., 

No. 97-cv-1493 (D.D.C. filed June 30, 1997). As here, the district court denied the 

FEC’s motion for a stay pending appeal. See Order, Democratic Senatorial 

Campaign Comm. v. FEC, No. 96-cv-2184 (Docket No. 56) (D.D.C. July 15, 

1997). Despite the filing of the private suit, the Court of Appeals reversed the 

contrary-to-law ruling and remanded for the district court to take evidence on the 

administrative complainant’s standing to sue. Democratic Senatorial Campaign 

Comm. v. FEC, 139 F.3d 951, 952-53 (D.C. Cir. 1998) (per curiam). That result 

could not have occurred had the filing of a private suit mooted the FEC’s appeal. 

As here, the issue of an administrative complainant’s standing could have been 

litigated in the private suit as easily as in the Commission’s appeal.5 

The bottom line is that this Court can still remedy the intrusion on the 

Commission’s exclusive civil enforcement authority and vacate the order against 

the agency if it agrees that the decision below was in error. A reversal of that 

The parties eventually agreed that the case was moot, but only after both the 

Commission concluded its agency proceedings on the administrative complaint and 

the private suit was voluntarily dismissed. See Per Curiam Order, Democratic 

Senatorial Campaign Comm. v. FEC, No. 99-5429 (D.C. Cir. Apr. 4, 2000). The 

Commission maintained that the case was not moot until after the private suit was 

dismissed because it invaded on its exclusive civil enforcement jurisdiction. See 

FEC’s Response to Mot. to Dismiss, Democratic Senatorial Campaign Comm. v. 

FEC, No. 99-5429 (Docket No. 501864-1) (D.C. Cir. Feb. 24, 2000). 

17 
 

 

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decision would void the private suit and lift the order against the Commission’s 

analysis. Complainant’s suggestion of mootness is incorrect. 

III. DISMISSAL IS NOT AN APPROPRIATE REMEDY FOR 

FORFEITED ARGUMENTS 

Even assuming Complainants were correct that the Commission forfeited or 

waived arguments actually litigated and decided below by defaulting at the District 

Court, they would not be entitled to a dismissal of the Commission’s appeal. None 

of the cases Complainant’s cite — not one — granted that relief. All but one of 

those decisions rather affirmed the district court rulings after full briefing on the 

merits. The sole exception is a case in which this Court reversed a “default 

judgment as void.” Combs v. Nick Garin Trucking, 825 F.2d 437, 448 (D.C. Cir. 

1987). The only case Complainants cite that even alludes to potential dismissal of 

an appeal, District of Columbia v. Air Florida, Inc., likewise merely affirmed the 

lower court’s ruling. 750 F.2d 1077, 1086 (D.C. Cir. 1984).6 The Air Florida 

Court referred to “a practice of dismissing appeals brought on grounds not asserted 

The Air Florida Court also explained that certain “exceptional 

circumstances” exist where a court of appeals has “the discretion to consider 

questions of law that were neither raised below nor passed upon by the District 

Court.” 750 F.2d at 1085. Complainants truncate this quotation to exclude the 

Court’s explanation that it may take up even issues not “passed upon by the 

District Court.” Id.; see Mot. at 11 (“While this Court has recognized certain 

‘exceptional circumstances’ under which it has the discretion to consider questions 

of law that were neither [sic] raised below,’ none of those circumstances exist 

here.”) (quoting Air Florida, 750 F.2d at 1085). 

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in the trial court,” but most of the cases cited by the Court had likewise affirmed 

after declining to consider unpreserved arguments and so fail to establish any such 

practice. Id. at 1084 & n.38.7

 That passing reference therefore appears to be an 

indication that the Court rejects on the merits appeals on grounds that are forfeited 

or waived absent extraordinary circumstances, not that any such appeal should be 

dismissed at the outset. 

That approach is consistent with the idea that waiver and forfeiture are nonjurisdictional rules governing “the administration of the business of the courts.” 

Johnston v. Reily, 160 F.2d 249, 250 (D.C. Cir. 1947). Their non-jurisdictional 

nature is confirmed by the fact that an appellate court is “not rigidly limited to 

issues raised in the tribunal of first instance.” Roosevelt, 958 F.2d at 419 n.5. 

Courts of appeals “have a fair measure of discretion to determine what questions to 

consider and resolve for the first time on appeal.” Id. 

How this Court should exercise that discretion is an issue that should be 

decided by a merits panel. Complainants do not request summary affirmance, but 

the above demonstrates that the merits of this case are not “so clear that expedited 

action is justified” and that there is “benefit” to be “gained from further briefing 

One case cited by the Air Florida court “dismiss[ed a] portion of [an] appeal 

on the ground that it was not properly asserted below,” but that case likewise did 

not cite any decisions dismissing appeals. Doe v. McMillan, 459 F.2d 1304, 1311 

n.10 (D.C. Cir. 1972), aff’d in part, rev’d in part, 412 U.S. 306 (1973). 

19 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 27 of 29 

and argument of the issues presented.” Taxpayers Watchdog, Inc. v. Stanley, 819 

F.2d 294, 297-98 (D.C. Cir. 1987). At a minimum, because Complainants’ 

forfeiture arguments go to the merits of the appeal, and not appellate jurisdiction, 

there is no basis to grant their motion. 

CONCLUSION 

For the foregoing reasons, Complainants motion to dismiss should be 

denied. 

Respectfully submitted, 

Lisa J. Stevenson Jacob S. Siler 

Acting General Counsel Assistant General Counsel 

Kevin Deeley Greg J. Mueller 

Associate General Counsel Attorney 

February 16, 2023 Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

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USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 28 of 29 

CERTIFICATE OF COMPLIANCE 

This motion complies with the type-volume limitation of Fed. R. App. P. 

27(d)(2)(B) because it contains 4737 words, excluding the parts of the motion 

exempted by Fed. R. App. P. 27 (d)(2)(B) and 32(f). 

The motion also complies with the typeface and type style requirements of 

Fed. R. App. P. 27(d)(1)(E) because it was prepared using Microsoft Word 14-

point Times New Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 
 

USCA Case #22-5336 Document #1986323 Filed: 02/16/2023 Page 29 of 29 

CERTIFICATE OF SERVICE 

I hereby certify that on this 16th day of February, 2023, I electronically filed 

the foregoing motion with the Clerk of the Court for the U.S. Court of Appeals for 

the District of Columbia Circuit by using the appellate CM/ECF system. The 

participants in the case are registered CM/ECF users and service will be 

accomplished by the appellate CM/ECF System. 

/s/ Greg J Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission