1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and 

CATHERINE HINCKLEY KELLEY, 

 Plaintiffs,

 Civil Action No. 19-2336 (JEB)

v.

FEDERAL ELECTION COMMISSION,

Defendant, 

 and 

HILLARY FOR AMERICA and 

CORRECT THE RECORD,

Defendant-Intervenors.

MEMORANDUM OPINION

Back in 2019, Plaintiff Campaign Legal Center brought this suit to challenge the Federal 

Election Commission’s dismissal of its administrative complaint against Correct the Record and 

Hillary for America for failing to report millions of dollars’ worth of alleged in-kind 

contributions in connection with the 2016 presidential campaign. After myriad twists and turns, 

on December 8, 2022, this Court held that the FEC’s dismissal was contrary to law and 

remanded the matter to the Commission. Unhappy with that result, the FEC, which had refused 

to participate and had ceded its defense to Defendant-Intervenors CTR and HFA, now finally 

comes off the sidelines to seek a stay of that remand pending its noticed appeal to the D.C. 

Circuit. Although cognizant of the Commission’s concerns about its ability to present its legal 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 1 of 9
2 

arguments on appeal, the Court nonetheless finds that the relevant factors weigh against a stay. 

It will, accordingly, deny the Motion. 

I. Background 

The legal, factual, and procedural background of this case has by now been covered 

numerous times by this Court and once by the D.C. Circuit. Campaign Legal Ctr. v. FEC, 334 

F.R.D. 1, 3–4 (D.D.C. 2019) (CLC I); Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 146–

50 (D.D.C. 2020) (CLC II); Campaign Legal Ctr. v. FEC, 507 F. Supp. 3d 79, 81–83 (D.D.C. 

2020) (CLC III); Campaign Legal Ctr. v. FEC, 31 F.4th 781, 784–88 (D.C. Cir. 2022) (CLC IV); 

Campaign Legal Ctr. v. FEC, No. 19-2336, 2022 WL 17496220 (D.D.C. Dec. 8, 2022) (CLC V). 

The briefest of summaries will therefore suffice here.

Plaintiff Campaign Legal Center — a non-profit campaign-finance watchdog group —

filed an administrative complaint with the FEC in October 2016. CLC V, 2022 WL 17496220, 

at *2. It alleged that a Super PAC named Correct the Record had improperly coordinated 

expenditures with the Hillary Clinton campaign (Hillary for America) without disclosing them as 

in-kind contributions and in gross violation of the Federal Election Campaign Act’s contribution 

limits. Id. CTR rejoined that this spending was appropriate because it fell under the so-called 

“internet exemption,” which excluded certain expenses related to unpaid internet 

communications from the definition of in-kind contributions. Id.

Although the FEC’s Office of General Counsel investigated the allegations and issued a 

report recommending that the Commission find reason to believe that several violations had 

occurred, the FEC itself rejected the OGC’s recommendation and dismissed the administrative 

complaint without further action by a 2-2 deadlocked vote. Id. at *3. The controlling 

Commissioners, in a written Statement of Reasons, agreed with CTR that its expenditures fell 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 2 of 9
3 

under FECA’s internet exemption and therefore did not need to be reported as in-kind 

contributions. Id. They further concluded that insufficient record evidence existed to indicate 

that CTR had coordinated with HFA as to non-communications activities. Id. 

In August 2019, CLC and one of its directors, Catherine Hinckley Kelley, filed this 

action challenging the FEC’s dismissal order under 52 U.S.C. § 30109(a)(8). See ECF No. 1 

(Complaint) at 22–23; see also ECF No. 15 (Amended Compl.). The FEC, however, failed to 

garner the four affirmative votes required by 52 U.S.C. §§ 30106(c) and 30107(a)(6) to defend 

this civil suit and thus defaulted. CLC I, 334 F.R.D. at 3–4. Notwithstanding the Commission’s 

default, this Court permitted HFA and CTR to intervene as Defendants in November 2019 over 

Plaintiffs’ objection. Id. at 5–7. After an initial dismissal for lack of standing and subsequent 

reversal by the D.C. Circuit, see CLC II, 466 F. Supp. 3d at 146–50, rev’d, CLC IV, 31 F.4th 

781, this Court in its latest Opinion on cross-motions for summary judgment rejected the 

controlling Commissioners’ justifications for dismissing the administrative complaint. First, it 

held that their Statement of Reasons rested on a flawed and overly broad interpretation of the 

internet exemption. CLC V, 2022 WL 17496220, at *4. Second, it held that the controlling 

Commissioners’ “analysis of CTR’s offline activities flagrantly disregarded key pieces of 

evidence” and was therefore arbitrary and capricious. Id. The Court did not, however, delineate 

the full scope of the internet exemption and, instead, left it “to the expert Commission on remand 

to sketch the bounds of the . . . exemption and to more fully analyze the facts before it.” Id. at 

*9. 

The Commission filed its Notice of Appeal approximately two weeks after this Court’s 

decision, on December 21, 2022. See ECF No. 72 (Notice of Appeal). Although opinions 

remanding a matter to an agency are not ordinarily appealable as final orders, the FEC here does 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 3 of 9
4 

have this opportunity. It is permitted to appeal this Court’s remand Order under an exception to 

the finality requirement where an “agency cannot later challenge its own actions complying with 

a remand order.” Sierra Club v. U.S. Dep’t of Agric., 716 F.3d 653, 656–57 (D.C. Cir. 2013); 

see also, e.g., Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988) (FEC appeal from 

remand order from district court). With the appeal pending, the FEC has now finally entered an 

appearance in this case. It here asks the Court to stay its remand Order pending appellate review. 

See ECF No. 73 (Motion for Stay). 

II. Legal Standard 

The party seeking a stay pending appeal bears the burden of justifying it based upon the 

following factors: “(1) the likelihood that the party seeking the stay will prevail on the merits of 

the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) 

the prospect that others will be harmed if the court grants the stay; and (4) the public interest in 

granting the stay.” Cuomo v. U.S. Nuclear Regul. Comm’n, 772 F.2d 972, 974, 978 (D.C. Cir. 

1985). This familiar test is “‘essentially the same’ as the test for a preliminary injunction, 

‘although courts often recast the likelihood of success factor as requiring only that the movant 

demonstrate a serious legal question on appeal where the balance of harms favors a stay.’” 

Citizens for Responsibility & Ethics in Wash. v. Off. of Admin., 565 F. Supp. 2d 23, 25 n.1 

(D.D.C. 2008) (quoting Al-Anazi v. Bush, 370 F. Supp. 2d 188, 193 & n.5 (D.D.C. 2005)). In 

assessing the propriety of a stay, the Court bears in mind that it is an “extraordinary remedy,” 

Cuomo, 772 F.2d at 978, that is “not a matter of right, even if irreparable injury might otherwise 

result” to the movant. Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks and 

citation omitted). Instead, a stay is “an exercise of judicial discretion” that turns upon the 

particular circumstances of each case. Id. at 433 (citation omitted).

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 4 of 9
5 

III. Analysis 

A. Success on Merits

In considering the four factors, the Court begins with the likelihood of the FEC’s success 

on its noticed appeal. As the Commission acknowledges, the Court has, by now, “written five 

opinions addressing aspects of this matter.” Motion for Stay at 6. The Court remains convinced 

that its latest Opinion correctly resolved the issues presented therein. It recognizes, however, 

that so long as the other three factors “strongly favor a stay, such remedy is appropriate if ‘a 

serious legal question is presented.’” Loving v. IRS, 920 F. Supp. 2d 108, 110 (D.D.C. 2013) 

(quoting Citizens for Responsibility & Ethics in Wash. v. Off. of Admin., 593 F. Supp. 2d 156, 

160 (D.D.C. 2009)); see also Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 

F.2d 841, 843–44 (D.C. Cir. 1977). The Court does not dispute that the present case involves 

serious legal questions about the metes and bounds of the FEC’s internet exemption. As a result, 

“[i]f the other factors tip in favor of a stay[,] . . . this factor will not preclude one.” Loving, 920 

F. Supp. 2d at 110; see also Holiday Tours, 559 F.2d at 843 (noting that court “may grant a stay 

even though its own approach may be contrary to movant’s view of the merits”).

B. Irreparable Harm

To establish the existence of the second factor, the movant must demonstrate that the 

injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to 

prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 

(D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). 

The injury must also be “both certain and great; it must be actual and not theoretical.” Id.

(quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” 

Id.

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 5 of 9
6 

The FEC devotes the bulk of its Motion to arguing that, absent a stay, it would be faced 

with irreparable harm no matter what it does. On one approach, it could decline to conform to 

this Court’s remand Order — so as to preserve its appeal intact — but then lose exclusive civilenforcement jurisdiction because § 30109(a)(8)(C) permits plaintiffs to bring a private lawsuit 

against the administrative respondents should the Commission not conform in 30 days. On the 

other approach, the FEC could immediately conform to the Court’s Order, but thereby moot its 

noticed appeal and leave it with “no practical ability to challenge this Court’s interpretation and 

application of FECA and the internet exemption to the administrative dismissal plaintiff 

challenges.” Motion for Stay at 3. 

While the Court is sympathetic to this purported dilemma, the facts on the ground have 

changed. The FEC’s loss of exclusive civil-enforcement jurisdiction has already come to pass

now that CLC has initiated a private action against HFA and CTR. See ECF No. 77 (Notice of 

Related Case); see also Campaign Legal Ctr. v. Correct the Record, No. 23-75 (D.D.C.). 

Regardless of whether the accrual of a private right of action for Plaintiffs constitutes irreparable 

harm for the FEC, that ship has sailed, and the Commission is no longer faced with the 

“untenable choice [of] conform[ing] . . . or giv[ing] up its [exclusive] jurisdiction over this case.” 

Motion for Stay at 3. This harm is therefore insufficient “because it relates to past injury rather 

than imminent future injury that is sought to be” avoided through imposition of a stay. Summers 

v. Earth Island Inst., 555 U.S. 488, 495 (2009). After CLC initiated its private suit, the FEC filed 

a Notice urging the Court to stay that action as an alternative solution. See ECF No. 78 (FEC 

Notice) at 1. As the Commission is not even a party there, it would be unusual for the Court to 

take such a step, and it is not inclined to do so without the input of the parties to that case.

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 6 of 9
7 

The only potential harm remaining at this juncture is the possible mooting of the 

Commission’s appeal if it now conforms to the remand Order. But because CLC has already 

initiated its private suit against HFA and CTR, the Commission has not identified any trade-off 

from waiting and choosing to proceed with its appeal rather than immediately acting on the 

Court’s previous Order. In other words, now that its exclusive jurisdiction is off the table, FEC 

has not pointed to any remaining harm “of such imminence that there is a ‘clear and present’ 

need for equitable relief,” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (quoting 

Wisconsin Gas Co., 758 F.2d at 674), and the Commission’s currently noticed appeal “provide[s] 

the very avenue for the FEC” to challenge this Court’s Order. Shays v. Fed. Election Comm’n, 

340 F. Supp. 2d 39, 50 (D.D.C. 2004) (denying FEC motion to stay). 

The Court recognizes that the procedural posture of this appeal is unusual and 

complicated, and it takes seriously considerations of judicial efficiency and the risk of mootness. 

The FEC, nevertheless, has not demonstrated that the risk to its ability to appeal this Court’s 

remand Order is “both certain and great.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 

(quoting Wisconsin Gas Co., 758 F.2d at 674). Finally, to the extent that the Commission now 

finds itself in a procedural tangle because of its late entry into this litigation, that is a knot of the 

agency’s own tying. This factor, too, does not support a stay. 

C. Public Interest and Harm to Others

Finally, the Court considers the “prospect that others will be harmed if the court grants 

the stay,” as well as the “public interest in granting a stay.” Cuomo, 772 F. 2d at 974. On the 

first point, the FEC maintains that staying this Court’s remand would not substantially harm 

Plaintiffs both because the spending reports that CLC seeks concern a long-defunct presidential 

campaign and associated Super PAC, and because the length of this litigation means that the 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 7 of 9
8 

“marginal extra time that an appeal will add to final resolution of this case is minimal compared 

with the time that has already elapsed.” Motion for Stay at 5, 6. Neither argument is availing. 

It has indeed been over six years since CLC first filed its administrative complaint with 

the FEC and over three years since the initiation of this suit. Such delay has long precluded 

Plaintiffs from either obtaining the disclosure of information they seek or bringing a civil action 

to challenge CTR and HFA’s alleged violations. See 52 U.S.C. § 30109(a)(8)(C). After years of 

diligently pursuing their claims, further pause would push this litigation into the territory of 

indefinite and “undue delay.” Belize Soc. Dev. Ltd. v. Belize, 668 F.3d 724, 732 (D.C. Cir. 

2012); cf. Campaign Legal Ctr v. Fed Elec. Comm’n, No. 20-809 (D.D.C.), ECF No. 37 (Order 

on Mot. to Intervene) at 10–11 (noting that “[p]arties deserve some level of finality and cannot 

be expected to litigate cases indefinitely”). Although the relevant campaign activities that CLC 

seeks to challenge occurred long ago, Plaintiffs “ha[ve] endured the failure to act on [their] 

administrative complaint, filed in [2016], until now.” Campaign Legal Ctr., No. 20-809, Order 

on Mot. to Intervene at 11.

For similar reasons, the FEC’s arguments regarding the public interest in a stay fall flat. 

“The public interest is a uniquely important consideration in evaluating a request for [a stay].” 

In re Special Proceedings, 840 F. Supp. 2d 370, 376 (D.D.C. 2012) (quoting Nat’l Ass’n of Mfrs. 

v. Taylor, 549 F. Supp. 2d 68, 77 (D.D.C. 2008)). “It is well settled that ‘[d]isclosure 

[requirements are] justified . . . on the ground that they . . . help citizens make informed choices 

in the political marketplace.’” Citizens for Resp. & Ethics in Washington v. Fed. Election 

Comm’n, 904 F.3d 1014, 1019 (D.C. Cir. 2018) (citing Citizens United v. Fed. Election 

Comm’n, 558 U.S. 310, 369 (2010)). Here, the FEC nevertheless contends that allowing this 

Court’s remand Order to go into effect would “result in duplicative proceedings as the private 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 8 of 9
9 

right of action advanced in this Court while the Court of Appeals considered the Commission’s 

case.” Motion for Stay at 4. That is, however, precisely what FECA envisions by giving the 

Commission 30 days to conform after which a private civil cause of action becomes available 

under § 30109(a)(8)(C). The Commission nevertheless insists that “apply[ing] this Court’s 

interpretation of the internet exemption while at the same time defending the controlling 

statement at the Court of Appeals . . . would undoubtedly cause confusion in the regulated 

community.” Id. As noted above, however, there is no rush for the Commission to engage in 

such application while the appeal is pending. The Commission could thus avoid any regulatory 

confusion by waiting for a resolution of its appeal. This factor, too, does not support a stay. 

IV. Conclusion 

For the foregoing reasons, the Court will deny Defendant’s Motion to Stay. A separate 

Order so stating will issue this day. While nothing in this decision prevents the FEC from

continuing to seek its desired relief in the Court of Appeals, the Court sees no basis for any 

further delay. 

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: February 1, 2023 

Case 1:19-cv-02336-JEB Document 80 Filed 02/01/23 Page 9 of 9