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Oral Argument Not Scheduled

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No. 23-5161

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U.S. Court of Appeals for the District of Columbia

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READY TO WIN,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee. 

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On Appeal from the U.S. District Court for the District of Columbia

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PLAINTIFF-APPELLANT READY TO WIN’S 

OPPOSITION TO FEDERAL ELECTION COMMISSION’S 

PARTIAL MOTION TO DISMISS

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September 7, 2023 Dan Backer, Esq. (D.C. Bar No. 996641)

CHALMERS, ADAMS, BACKER 

& KAUFMAN LLC

441 N. Lee Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@ChalmersAdams.com 

Attorney for Plaintiff-Appellant

Ready to Win

USCA Case #23-5161 Document #2015872 Filed: 09/08/2023 Page 1 of 17
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Defendant-Appellee Federal Election Commission’s (“FEC”) Motion to 

Dismiss is premature, based on a fundamental misconception, and meritless. This 

Court should deny the FEC’s motion because this Court has jurisdiction over this 

appeal pursuant to 28 U.S.C. § 1292(a)(1). 

BACKGROUND ON THE CASE

The FEC opens its brief by offering an incomplete, misleading 

characterization of this case. The FEC claims Plaintiff-Appellant Ready to Win

(“RTW”)1 filed this case so it could “provide a potential (and now declared) 

presidential candidate with . . . a ‘contact list’ of supporters” with a value exceeding 

federal contribution limits. Federal Election Commission’s Partial Motion to 

Dismiss, at 1 (Aug. 28, 2023) [hereinafter, “FEC Mot.”]. 

To the contrary, as the Complaint expressly explains, RTW has spent a 

substantial amount of money inviting people to join a political petition to Governor 

Ron DeSantis to express their support for him and encourage him to become, and 

remain, a candidate for the Republican nomination for President (and, ultimately, a 

candidate for President in the general election). See Complaint, Dist. Ct. D.E. #1, ¶ 9 

1 When this case commenced, Plaintiff-Appellant’s name was Ready for Ron. See

Compl., D.E. #1, ¶ 3. Once Florida Governor Ron DeSantis declared his candidacy 

for President, Plaintiff-Appellant was required to change its name under 52 U.S.C. 

§ 30102(e)(4); accord 11 C.F.R. § 102.14(a). Accordingly, it adopted the new name 

Ready to Win, and the district court allowed it to continue litigating this case under 

that name. See District Court Docket Entry (“Dist. Ct. D.E.”), unnumbered (June 25, 

2023) (order). 

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(Oct. 27, 2022) [hereinafter, “Compl.”]. RTW’s solicitations through various media 

specified that, by electronically signing the petition, the petition’s signatories were 

asking their self-provided name and contact information be added to the petition and 

provided to Governor DeSantis on their behalf. Id. ¶¶ 11-15. RTW wished to retain 

these complete virtual signature blocks as an integral part of its complete signed 

petition for a variety of reasons, among them:

● political petitions, including modern candidacy petitions, traditionally 

include signatories’ names and contact information; 

● including contact information from each signatory who asked RTW to 

include it in the petition to convey to Governor DeSantis on their behalf allows such 

signatories to more meaningfully identify themselves, rather than being effectively 

anonymous (i.e., “John Smith”), and distinguish themselves from others with the 

same name;

● providing contact information makes a signature appear more authentic 

than a lone name, and allows the petition’s recipient to confirm the signatures’ 

authenticity; and, perhaps most importantly, 

● contact information facilitates political expression and association by 

allowing the petition’s recipient, if he chooses, to respond to the petition’s 

signatories, rather than requiring communication to be exclusively a one-way street.

Id. ¶ 20.

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RTW sought an advisory opinion from the FEC to confirm providing the 

complete, signed petition, including signatories’ names and contact information, to 

Governor DeSantis would not violate the Federal Election Campaign Act (“FECA”).

Id. ¶¶ 28-29. The FEC concluded the FECA prohibited RTW from providing the 

complete signed petition to Governor DeSantis once he began testing the waters to 

become a presidential candidate, or actually became a candidate. Id. ¶¶ 41-43.2 The 

FEC explained the value of the signatory contact information contained in the 

signature blocks of the complete signed petition exceeded the FECA’s contribution 

limits. Id. ¶ 42. 

PROCEDURAL HISTORY

RTW filed this lawsuit in the U.S. District Court for the District of Columbia, 

making three main arguments. First, its complete signed political petition should not 

be deemed a “contribution” under FECA. Id. ¶¶ 56-58, 60-71. Second, the signatory 

contact information in the petition should at most be deemed a “conduit 

contribution” under 52 U.S.C. § 30116(a)(8). Id. ¶¶ 78-85. Third, RTW and the 

petition’s signatories have a fundamental First Amendment right to provide its 

2 The Commission further concluded the FECA prohibited RTW from funding its 

independent expenditures to solicit signatures for its petition from its independentexpenditure-only “Carey” account, see Carey v. FEC, 864 F. Supp. 2d 57 (D.D.C. 

2002). Compl. ¶ 44. It deadlocked on the antecedent issue of whether RTW could 

provide the complete signed petition to Governor DeSantis before he began testing 

the waters to become a candidate. Id. ¶ 45. 

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complete signed political petition to Governor DeSantis without having to redact the 

signatories’ self-provided contact information, render its signatories effectively 

anonymous, and preclude Governor DeSantis from responding to them if he wishes.

Id. ¶¶ 46-55, 59. RTW filed a motion for a preliminary injunction prohibiting the 

FEC from ever initiating enforcement proceedings against it for either spending 

funds from its Carey account to solicit petition signatures or providing its signed 

political petition or any subsequent updates to Governor DeSantis, during the 

pendency of this lawsuit. Plaintiff Ready for Ron’s Motion for Preliminary 

Injunction, D.E. #8 (Dec. 21, 2022).

The district court denied that motion on May 17, 2023. See Memorandum 

Opinion and Order, D.E. #30 (May 17, 2023) [hereinafter, “Op.”]. Though the court 

was ruling only on RTW’s request for interim relief, its opinion contained a range of 

legal determinations that were sufficient to completely dispose of RTW’s 

constitutional and statutory claims as a matter of law. First, the court held RTW’s 

petition should be deemed a contact list, id. at 2, 15, and contact lists qualify as inkind contributions under the FECA, id. at 54. This ruling empowered the FEC to 

limit pure political expression between groups of voters and declared or potential 

candidates, chilling and substantially burdening one of the oldest and most important 

forms of political association in American history—political petitions—see Brown 

v. Glines, 444 U.S. 348, 363 (1980) (Brennan, J., dissenting), through FECA’s 

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cumbersome restrictions.. Second, the district court held “the FEC reasonably 

decided that RFR is not acting as a mere conduit for the contributions of others 

and . . . its decision is not inconsistent with any prior advisory opinions . . . .” Id. 

at 38. Finally, the court rejected RTW’s argument the FECA’s contribution limits 

were subject to strict scrutiny as applied to its complete signed petition, id. at 49. It 

went on to state providing the complete signed petition to Governor DeSantis raised 

a risk of quid pro quo corruption, id. at 55-56, and barring RTW from doing so 

“places no serious burden on anyone’s ability to express support for Governor 

DeSantis and to join together with others in so doing,” id. at 57-58. The court 

concluded RTW’s claim that “the application of FECA’s contribution limits to its 

proposed course of action ‘imperils [it] First Amendment rights’ is ‘flawed.’” Id. 

at 59-60 (citations omitted). RTW filed a timely notice of appeal. See Notice of 

Appeal (July 14, 2023). A true and complete copy of RTW’s Notice of Appeal is 

attached as Exhibit 1 to this filing. 

THIS COURT HAS SUBJECT-MATTER

JURISDICTION OVER RTW’S APPEAL

This Court has subject-matter jurisdiction over this appeal. RTW’s Notice of 

Appeal in this case, filed on July 14th, 2023, declared RTW was appealing from the 

order the district court “entered on May 17, 2023, denying Plaintiff’s Motion for 

Preliminary Injunction [Docket Entry #30].” Exh. 1, at 1. This Court has jurisdiction 

over RTW’s appeal pursuant to 28 U.S.C. § 1292(a)(1), which grants courts of 

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appeals “jurisdiction of appeals from . . . interlocutory orders of the district courts of 

the United States . . . or of the judges thereof . . . refusing . . . injunctions . . . .”3

RTW timely filed its notice of appeal within sixty days of the district court’s ruling; 

that extended deadline applied since the FEC, “a United States agency,” is a party to 

this case. Fed. R. App. P. 4(a)(1)(B)(ii). 

RTW’s notice of appeal contained all of the information required by Fed. R. 

App. P. 3(c)(1). First, it identified the party taking the appeal: RTW itself. Id. R. 

3(c)(1)(A). Second, the notice designated the “appealable order . . . from which the 

appeal is being taken”: the district court’s order of May 17, 2023, refusing a 

preliminary injunction. Id. R. 3(c)(1)(B). Finally, RTW’s notice named “the court to 

which the appeal is taken”: the U.S. Court of Appeals for the D.C. Circuit. Id. R. 

3(c)(1)(C). Accordingly, this Court has subject-matter jurisdiction over this appeal. 

THE FEC’S MOTION TO DISMISS IS PREMATURE

The FEC nevertheless claims RTW “evidences an intent to appeal not merely 

the district court’s preliminary order, but a further issue outside this court’s 

interlocutory jurisdiction: whether the court should have dismissed plaintiff’s 

complaint or entered final judgment in favor of the FEC.” Mot. at 2. It later 

3 This Court likewise may exercise jurisdiction over the district court’s rulings on 

issues for which it treated RTW’s motion as a request for a permanent injunction, 

see Op. at 13, since 28 U.S.C. § 1291(a)(1) applies to appeals from all interlocutory 

rulings concerning injunctions. 

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elaborates, “[RTW’s] Statement of Issues betrays an intention to challenge not only 

the district court’s Preliminary Order, but also that court’s Final Judgment Denial, 

issued over two months later, denying [RTW’s] request that the district court enter 

final judgment in the FEC’s favor on all counts.” Id. at 10. As explained below, these 

assertions are patently false, see infra p. 11. The FEC has needlessly wasted this 

Court’s time by prematurely filing a motion to challenge wholly fabricated 

jurisdictional improprieties that have not occurred and, in fact, will never occur.

Pursuant to Fed. R. App. P. 30(b)(1), RTW served the FEC with a “statement 

of the issues [it] intends to present for review,” for the sole purpose of allowing the 

FEC to designate additional parts of the district court record it wishes RTW to 

include in the appendix. A true and correct copy of this document is attached to this 

Opposition Memorandum as Exhibit 2. RTW’s statement “provide[d] notice” to the 

FEC that RTW “presently intends to raise the following issue on appeal: whether the 

district court’s ruling in response to [RTW’s] motion for a preliminary injunction 

was erroneous.” See Exh. 2, at 1.

As a matter of professionalism and comity to aid the FEC in identifying 

district court filings it wished to include in the appendix, RTW then went a step 

further, identifying a range of more specific “matters this issue may implicate.” Id.

One of the eight subsidiary matters RTW identified was: “[I]f RTW is not entitled to 

an injunction then, based on the district court’s legal conclusions, whether the district 

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court should have dismissed RTW’s Complaint as a matter of law rather than simply 

denying the injunction . . . .” Id. As RTW’s filing makes clear, this was not a separate 

issue or challenge to an independent order, but one of the many ways in which RTW 

is likely to argue the district court’s May 17, 2023, ruling denying RTW’s motion for 

a preliminary injunction was erroneous.

In response to this professional courtesy, the FEC filed the underlying motion.

The FEC did not bother reaching out to undersigned counsel before doing so to 

confirm its understanding of the situation; attempt to resolve this issue in an 

amicable matter; or otherwise avoid vexatiously multiplying these proceedings.

Rather, the FEC chose to impose further costs and burdens on RTW by compelling 

it to respond to an unnecessary and meritless jurisdictional motion.

The FEC has failed to cite a single case in which this Court dismissed an 

appeal—in whole or part—based on an appellant’s identification, in the Statement 

of Issues the appellant served to facilitate preparation of the appendix, of a potential 

issue that may arise in the appeal. All of the cases the FEC cites to support this 

unusual procedural maneuver are inapposite. Each involved a challenge to the 

organic documents that were jurisdictionally required to both give this court 

jurisdiction over an appeal, as well as to define the contours and scope of that appeal.

In SEC v. e-Smart Techs., Inc., 664 F. App’x 7, 7 (D.C. Cir. 2016) (per curiam) (mem. 

op.), cited in FEC Mot. at 8 n.1, for example, this Court dismissed an appeal from 

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the district court’s final judgment because the notice of appeal had been filed more 

than sixty days afterward; this Court nevertheless adjudicated the appellant’s 

challenge to the district court’s subsequent denial of sanctions, since the notice of 

appeal was timely as to that later order. See also Ross v. Washingtonian Mag., No. 

04-7105, 2004 WL 3019527, at *1 (D.C. Cir. Dec. 30, 2004) (per curiam) (mem. 

op.) (likewise dismissing untimely appeal of one challenged order while summarily 

adjudicating the appeal of the other challenged order), cited in FEC Mot. at 8 n.1.

Likewise, in City of Tempe, Arizona v. Fed’l Aviation Admin., No. 01-1479, 2002 

WL 1635314, at *1 (D.C. Cir. 2002) (mem. op.) (per curiam), cited in FEC Mot. at 

8 n.1, this Court dismissed challenges identified in two paragraphs of the petition for 

review, which was jurisdictionally required to initiate the appellant’s challenge to 

the Federal Aviation Administration’s actions, see Fed. R. App. P. 15(a)(1).

Here, in contrast, the FEC’s motion is not premised on some defect in, or other 

substantive concern about, the jurisdictionally required filing that gave rise to this 

Court’s appellate jurisdiction over this case (that is, RTW’s Notice of Appeal). As 

explained above, there is no question RTW has satisfied this Court’s jurisdictional 

requirements. The FEC’s cited authorities provide no support for a preemptive 

motion to dismiss part of an appeal concerning an issue that might be raised in the 

future, without even seeing the manner in which the issue arises.

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THE FEC’S MOTION IS PREMISED ON A FUNDAMENTAL

MISUNDERSTANDING OF RTW’S POTENTIAL ARGUMENT, 

WHICH THIS COURT HAS JURISDICTION TO ADJUDICATE

As explained above, the FEC’s entire motion rests on the false premise RTW 

has “betray[ed]” a secret intention to appeal a district court order other than its denial 

of RTW’s motion for preliminary injunction. FEC Mot. at 10. Because the FEC 

jumped the gun by filing this motion before RTW has actually presented any 

arguments and without bothering to raise its concerns with undersigned counsel, the 

FEC’s motion completely misapprehends the situation. The only order RTW intends 

to challenge in its appeal is the district court’s denial of its motion for preliminary 

injunction, as expressly set forth in RTW’s Notice of Appeal. See Ex. 2, at 1. The 

FEC’s lengthy discussion of the district court’s subsequent order and pendent 

appellate jurisdiction, see Mot. at 10-13, is therefore wholly irrelevant and there is 

no need for RTW to engage with it. 

RTW respectfully believes the district court’s legal determinations concerning 

its constitutional and statutory claims were erroneous and hopes to persuade this 

Court to overturn them. RTW further intends to argue, however, that in the event this 

Court agrees with the district court’s legal determinations, the proper disposition of 

this appeal would be to remand with instructions to dismiss the complaint. As 

explained above, the district court’s legal conclusions concerning RTW’s motion for 

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a preliminary injunction involved questions of pure constitutional and statutory 

interpretation and are legally sufficient to dispose of RTW’s claims. See supra note 

5-6. Should this Court adopt those legal rulings, then (absent subsequent review by 

the U.S. Supreme Court) there would be no need for further district court 

proceedings.

The FEC erroneously contends RTW is jurisdictionally precluded from 

making this argument:

● “[T]o the extent [RTW] intends to challenge the district court’s failure to 

dismiss [RTW’s] complaint in the Preliminary Order itself, that argument . . . 

provides no basis for the Court to exercise jurisdiction over such a question.”

Id. at 13.

● “[T]he question of whether the district court should have dismissed each of 

[RTW’s] claims, or entered final judgment in the FEC’s favor, is clearly 

outside the scope of this Court’s jurisdiction to consider interlocutory 

appeals . . . .” Id. at 14.

The FEC’s complete inability to provide even a single citation to support any of these 

flatly incorrect legal assertions is a red flag. Rather, the FEC chose to ignore this 

Court’s binding precedents directly addressing this issue, cf. D.C. R. Prof’l Cond. 

3.3(a)(3)—including precedents RTW had brought to its attention in district court 

proceedings.

In Wagner v. Taylor, 836 F.2d 578, 586 n.49 (D.C. Cir. 1987), this Court held, 

a case “may be dismissed in its entirety” when “inquiry pertaining to a ruling 

respecting [a] preliminary injunction reveals that the case is entirely without merit,” 

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in order to prevent “a waste of judicial resources.” Adjudicating the merits is “most 

appropriate” when the district court’s ruling concerning the injunction “rests on a 

question of law and it is plain that the plaintiff cannot prevail.” Munaf v. Green, 553 

U.S. 674, 691 (2008); see also City and Cnty. of Denver v. N.Y. Tr. Co., 229 U.S. 123, 

136 (1913) (holding a court reviewing an interlocutory appeal concerning a 

preliminary injunction may go beyond the injunction itself to determine “whether 

there is any insufferable objection, in point of jurisdiction or merits, to the 

maintenance of [the] bill and, if so, to direct a final decree dismissing it” (emphasis 

added)).

For example, in Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agriculture, 573 F.3d 

815, 821 (D.C. Cir. 2009) (citing 28 U.S.C. § 1292(a)(1)), the district court—as in 

the instant case—denied the plaintiffs’ motion for a preliminary injunction. The 

plaintiff took an interlocutory appeal to this Court. This Court held the plaintiff had 

“no likelihood of success on the merits” and affirmed the denial of a preliminary 

injunction. Id. at 833. It went on to declare, as a matter of law, “there is an 

‘insuperable objection’” to several of the plaintiffs’ claims. Id. It therefore concluded 

“those claims in [the] complaint must be dismissed for failure to state a claim” and 

ordered the district court to dismiss them. Id.; see also Distaff, Inc. v. Springfield 

Contracting Corp., 984 F.2d 108, 110 (4th Cir. 1993); Morris v. District of Columbia, 

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38 F. Supp. 3d 57, 62-63 (D.D.C. 2014). Numerous other authorities, both from this 

Court and other jurisdictions, further bolster this point.

RTW is not litigating the merits of this issue here, and will likely set forth its 

argument at greater length in its forthcoming Appellant’s Brief. For present 

purposes, it is enough to point out a range of U.S. Supreme Court and D.C. Circuit 

precedents squarely hold an appellate court adjudicating an interlocutory appeal 

from a district court’s ruling concerning a preliminary injunction has jurisdiction to 

rule the plaintiffs’ claims lack legal merit and should be dismiss. RTW hopes and 

intends to prevail on the merits of this appeal and obtain a mandate from this Court 

reversing the district court’s judgment and ordering it to enter a preliminary 

injunction protecting RTW’s constitutional and statutory rights to provide its 

complete signed petition to Governor DeSantis. This Court also has jurisdiction, 

however, to consider an alternative argument: when assessing RTW’s likelihood of 

success on the merits, should this Court conclude RTW’s claims fail as a matter of 

law, the appropriate remedy is to order dismissal.

Bizarrely, throughout the district court proceedings, the FEC has been fighting 

vociferously not to win this case, and to prevent the district court from entering 

final judgment in its favor. See, e.g., Federal Election Commission’s Opposition to 

Plaintiff’s Motion for Entry of Judgment, D.E. #36 (July 19, 2023). The FEC’s only 

dubious explanation is that it wishes to “develop a factual record” concerning RTW’s 

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First Amendment claims. Mot. at 2. Federal Rule of Civil Procedure 1 requires the 

parties to apply the rules “to secure the just, speedy, and inexpensive determination 

of every action and proceeding.” Fed. R. Civ. P. 11(b)(1) likewise prohibits litigants 

from “caus[ing] unnecessary delay, or needlessly increas[ing] the cost of litigation.”

If this Court’s legal rulings in the course of adjudicating this appeal establish RTW 

has failed to state valid First Amendment and statutory claims, or those claims 

otherwise fail as a matter of law, the “factual record” the FEC emphatically demands 

would be completely superfluous. The FEC cannot insist on punishing RTW for 

bringing this case (and perhaps attempting to deter future litigants from pursuing 

other constitutional challenges) by unnecessarily extending proceedings for nearly 

an additional year to go on a fishing expedition and imposing the substantial costs 

and burdens of intrusive, unnecessary discovery on RTW—especially when RTW’s 

activities are already a matter of public record through its detailed FEC filings, 

online advertisements, and other public solicitations for petition signatures.

CONCLUSION

The FEC should withdraw this motion. The motion is premature and premised 

on a single sentence in a preliminary filing intended to assist with preparation of the 

joint appendix. The motion is based on a fundamental misunderstanding of RTW’s 

intended arguments and strategy. And, even under the FEC’s view of events, RTW’s 

intended arguments would be fully within this Court’s interlocutory jurisdiction 

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under 28 U.S.C. § 1292(a)(1). Should the FEC insist on vexatiously multiplying 

these proceedings by standing on this ill-conceived motion, this Court should deny 

it. 

 /s/ Dan Backer_____________________

September 7, 2023 Dan Backer, Esq. (D.C. Bar No. 996641)

 CHALMERS, ADAMS, BACKER 

 & KAUFMAN LLC

 441 N. Lee Street, Suite 300

 Alexandria, VA 22314

 (202) 210-5431 

 dbacker@ChalmersAdams.com 

 Attorney for Plaintiff-Appellant

 Ready to Win

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CERTIFICATE OF COMPLIANCE

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

P. 27(d)(2)(b) because it contains 3,477 words, excluding the parts of the motion 

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

This 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/ Dan Backer___________

Dan Backer, Esq. 

Counsel for Plaintiff-Appellant

 Ready to Win

 

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