Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 1 of 18 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CASTRO )

)

Plaintiff, ) No. 22-cv-02176

)

v. )

) OPPOSITION TO MOTION

FEDERAL ELECTION COMMISSION, ) FOR TEMP. RESTRAINING

) ORDER AND PRELIMINARY

Defendant. ) INJUNCTION

)

FEDERAL ELECTION COMMISSION’S OPPOSITION TO PLAINTIFF’S

APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR

PRELIMINARY INJUNCTION

Plaintiff John A. Castro has filed this “emergency” application for a temporary

restraining order and motion for preliminary injunction (“TRO App.”) (Docket No. 18) seeking

an order from this Court to enjoin the Federal Election Commission (“FEC” or “Commission”)

from accepting a statement of candidacy from former president Donald J. Trump, which Castro

asserts will block Trump’s ability to fundraise as a candidate. Castro argues that he is entitled to

this relief because the Commission’s acceptance of Trump’s candidacy filing would be unlawful

pursuant to Section 3 of the Fourteenth Amendment to the Constitution, also known as the

“Disqualification Clause,” because Castro alleges that Trump has engaged or aided in

insurrection. Plaintiff’s belated application seeking this extraordinary relief must be denied for

the following reasons:

First, as explained in the Commission’s pending partial motion to dismiss, the

Commission has no authority to reject a prospective candidate’s filings based on his alleged

constitutional ineligibility for office, nor does it have jurisdiction to adjudicate whether a person
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 2 of 18 

has “engaged in insurrection” under the Fourteenth Amendment. Castro’s assertions that

Trump’s declaration of candidacy to the FEC confers the “privilege” of raising money for his

campaign turns campaign finance law on its head. (TRO App. at 4, 18.) The filing of a

declaration of candidacy is simply a public disclosure that an individual has become subject to

the contribution limits and reporting requirements of the Federal Election Campaign Act

(“FECA”), it is not a conferral by the Commission of authorization to run for office or raise

campaign funds.

Second, Castro cannot plausibly allege any imminent, irreparable injury resulting from

Trump filing his statement of candidacy with the FEC because the earliest election in which the

two would face voters does not occur until 2024. Castro asserts that there is harm to him as a

competitor of Trump in the 2024 election, however any purported harm stemming from his

theory of “ineligible” candidates would not actually occur until voting happens. To the extent

Castro claims that he is placed at a fundraising disadvantage due to Trump’s candidacy, he has

submitted no evidence to support his speculation that he would raise additional funds in the

absence of Trump’s candidacy. Any claim of irreparable harm is also undermined by the nine

months Castro waited to seek preliminary injunctive relief. Although Castro has apparently

based the timing on this application in conjunction with Trump’s November 15 announcement

that he is running for office, Castro has not justified the “emergency” nature of the injunctive

relief he seeks on any basis given that he has made this same argument in his previously filed

judicial complaints with this Court and has threatened to file this application for weeks. There is

no more “emergency” now than there was then.

Third, any injunctive relief here would be inequitable because it would upend the status

quo and severely impact the First Amendment rights of non-parties to this suit: Trump and

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 3 of 18 

supporters of his campaign. Trump has already filed his statement of candidacy with the

Commission, and Castro has not met his heavy burden of establishing entitlement to upend that

status quo. Granting injunctive relief against a newly announced political campaign would also

be a serious infringement on the associational rights of those seeking to affiliate with the Trump

campaign through campaign contributions and otherwise. That relief should only be granted

upon the strongest of showings, which is lacking here.

Castro meets none of the requirements for a preliminary injunction or temporary

restraining order. His application should be denied.

I. BACKGROUND

A. The FEC

The FEC is a six-member, independent agency of the United States government with

“exclusive jurisdiction” to administer, interpret, and civilly enforce FECA. See generally 52

U.S.C. §§ 30106, 30107. Congress authorized the Commission to “formulate policy” with

respect to FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary

to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate

possible violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction

to initiate civil enforcement actions for violations of the Act in the United States district courts.

Id. §§ 30106(b)(1), 30109(a)(6).

B. FECA’s Definition of a Federal “Candidate”

FECA defines the term “candidate” to mean “an individual who seeks nomination for

election, or election, to Federal office.” 52 U.S.C. § 30101(2). An individual is “deemed to seek

nomination for election, or election” if they receive “contributions” or make “expenditures”

aggregating in excess of $5,000, of if the individual has “given his or her consent to another

person” to do so on his or her behalf. Id. § 30101(2)(A)-(B). “Contribution” and “expenditure”

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are defined terms of art. See 52 U.S.C. § 30101(8), (9). Those terms cover only those receipts

and disbursements that are made “for the purpose of influencing any election for Federal office.”

Id. § 30101(8)(A)(i), (9)(A)(i); see also FEC v. Akins, 524 U.S. 11, 15 (1998).

Consistent with First Amendment principles, there are few limits on a person’s ability to

raise or spend money related to politics independent of candidates or parties, though in certain

circumstances those activities are required to be publicly reported. See generally Citizens United

v. FEC, 558 U.S. 310 (2010). Once an individual becomes a candidate, however, they are

subject to comprehensive registration and reporting requirements. Candidates must designate in

writing a principal campaign committee within 15 days of becoming a candidate by filing a

Statement of Candidacy on FEC Form 2. 52 U.S.C. § 30102(e)(1); 11 C.F.R. § 101.1(a). Those

committees must then file periodic campaign finance disclosure reports reporting its receipts and

disbursements. Id. § 30104(a)(3), (b). Candidates and their committees are also required to

comply with FECA’s source and amount limitations on contributions. See 52 U.S.C.

§ 30116(a)(1)(A); FEC Price Index Adjustments for Expenditure Limitations and Lobbyist

Bundling Disclosure Threshold, 87 Fed. Reg. 5822 (February 2, 2022) (establishing inflationadjusted $2,900 per election limit on contributions to candidates); see 52 U.S.C. § 30118

(prohibiting corporate contributions to candidates); id. § 30119 (prohibiting contributions by

government contractors); id. § 30121 (prohibiting contributions by foreign nationals); id.

§ 30122 (prohibiting contributions in the name of another).

C. Castro’s Lawsuit and Application for Injunctive Relief

Castro is a declared candidate for the 2024 Republican nomination for President of the

United States. (TRO App. at 1; Pl.’s Compl. for Declaratory and Injunctive Relief (“Compl.”)

(Docket No. 1) ¶ 8.) Plaintiff alleges that he filed his administrative complaint with the FEC on

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March 23, 2022. (Compl. ¶ 11.) According to his court complaint, plaintiff’s administrative

complaint alleged that Trump meets the definition of a “candidate” under FECA and is therefore

subject to FECA’s organizational and reporting requirements, as well as its source and amount

limitations on contributions. (Id.)

Initially, Castro primarily asserted in count one of his judicial complaint that the

Commission’s alleged failure to act on that administrative complaint was unlawful under 52

U.S.C. § 30109(a)(8) and the Administrative Procedure Act and sought an order compelling the

Commission to require Trump to file a statement of candidacy for the 2024 Republican

presidential nomination. (Compl. ¶ 1.) On November 15, 2022, Trump announced his

candidacy for that nomination and filed a statement of candidacy with the FEC. See TRO App.

at 3; Donald J. Trump, Statement of Candidacy (Nov. 15, 2022), https://docquery.fec.gov/cgibin/forms/C00828541/1661552/. Now that Trump has filed the document Castro sought to

compel the Commission to require, the parties agree that count one is “moot.” (TRO App. at 3.)

Count two of Castro’s judicial complaint — which is the count at issue here — asserts

that the Commission should be enjoined from accepting Trump’s statement of candidacy because

he is constitutionally ineligible to hold that office under the Disqualification Clause of the

Fourteenth Amendment.1 (Compl. ¶¶ 31-64, 84-88.) Because FECA does not authorize the

Commission to reject a candidate’s declaration based on his supposed constitutional ineligibility

for office, the Commission moved to dismiss that count of Castro’s complaint either because he

Section 3 of the Fourteenth Amendment states, “[n]o person shall be a Senator or

Representative in Congress, or elector of President and Vice-President, or hold any office, civil

or military, under the United States, or under any State, who, having previously taken an oath, as

a member of Congress, or as an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, to support the Constitution of the

United States, shall have engaged in insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof.” U.S. Const. amend. XIV, § 3.

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lacks Article III standing or because he failed to state a claim on which relief can be granted.

(See FEC’s Partial Mot. to Dismiss and FEC’s Reply Mem. of P. & A. in Supp. of Its Partial

Mot. to Dismiss (Docket Nos. 14, 16).) That motion is fully briefed and awaiting decision.

On November 16, 2022, plaintiff filed a motion for temporary restraining order and

preliminary injunction on his Disqualification Clause claim that would “enjoin [the Commission]

from accepting Donald J. Trump’s FEC Form 2, Statement of Candidacy.” (TRO App. at 20.)

However, as noted in his motion, since at least October 6, plaintiff has been threatening to file an

“emergency” motion for a temporary restraining order seeking this relief, in addition to asserting

similar relief in his first judicial complaint filed with the Court in February 2022. (See TRO

App. at 4-5.)

II. ARGUMENT

A. A Temporary Restraining Order Is an Extraordinary Remedy That Requires

Plaintiff to Meet a Heavy Burden

“A temporary restraining order is an extraordinary remedy, one that should be granted

only when the moving party, by a clear showing, carries the burden of persuasion.” Sibley v.

Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011). The moving party must demonstrate: “(1) a

substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the

injunction were not granted, (3) that an injunction would not substantially injure other interested

parties, and (4) that the public interest would be furthered by the injunction.” Coal. for Parity,

Inc. v. Sebelius, 709 F. Supp. 2d 6, 8 (D.D.C. 2010).

A “foundational requirement” for obtaining a temporary restraining order or preliminary

injunction is that “the plaintiffs demonstrate a likelihood of success on the merits.” Guedes v.

Bureau of Alcohol, Tobacco, Firearms & Explosives, 930 F.3d 1, 10 (D.C. Cir. 2019) (per

curiam), cert. denied, 140 S, Ct. 789 (2020). But even if a plaintiff can show a likelihood of

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success on the merits, a temporary restraining order “does not follow as a matter of course.”

Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018) (per curiam); Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 24 (2008) (holding that preliminary relief is “never awarded as of

right”). Notably, “[t]he D.C. Circuit ‘has set a high standard for irreparable injury’—it ‘must be

both certain and great; [and] it must be actual and not theoretical.’” Baker DC, LLC v. Nat. Lab.

Rel. Bd., 102 F. Supp. 3d 194, 198 (D.D.C. 2015) (quoting Chaplaincy of Full Gospel Churches

v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (alteration in original)). “A plaintiff seeking a

preliminary injunction ‘must establish that he is likely to succeed on the merits, that he is likely

to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in

his favor, and that an injunction is in the public interest.’” Changji Esquel Textile Co. Ltd. v.

Raimondo, 40 F.4th 716, 721 (D.C. Cir. 2022) (quoting Winter, 555 U.S. at 20).

Plaintiff asserts that these four factors have been evaluated on a “sliding scale,” such that

a stronger showing on one factor could make up for a weaker showing on another. (TRO App. at

6). However, this Court has recently noted that this approach “is likely inconsistent with” the

Supreme Court’s holding in Winter. Zeynali v. Blinken, No. 22-cv-2683 (BAH), 2022 WL

4462304, at *2 n.3 (D.D.C. Sept. 26, 2022) (citing Archdiocese of Wash. v. Wash. Metro. Area.

Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018) (observing that Winter may be “properly read

to suggest a ‘sliding scale’ approach to weighing the four factors be abandoned”); Davis v.

Pension Benefit Guar. Corp., 571 F.3d 1288, 1295–96 (D.C. Cir. 2009) (Kavanaugh, J.,

concurring) (noting that “this Circuit’s traditional sliding-scale approach to preliminary

injunctions may be difficult to square with the Supreme Court’s recent decisions in” Winter)).

After Winter, an applicant must “establish that he is likely to succeed on the merits.” 555 U.S. at

20.

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A plaintiff seeking extraordinary relief must provide sufficient credible evidence to meet

his burden of proof. See Cal. Ass’n of Private Postsecondary Schools v. DeVos, 344 F. Supp. 3d

158, 166-67 (D.D.C. 2018).

B. Plaintiff Cannot Meet the Heavy Burden of Demonstrating that he is

Substantially Likely to Succeed on the Merits

Castro is unable to show that he is likely to succeed on the merits of his claim for the

same reasons asserted in the Commission’s motion to dismiss: the Commission lacks authority

under FECA to reject a candidate declaration on the grounds that the candidate is ineligible to

hold the office sought. (See Docket Nos. 14-1, 16.) Because the Commission lacks authority to

reject Trump’s filing on the basis Castro presses, no action of the Commission has caused any of

Castro’s asserted injuries and no relief directed at the Commission would remedy those injuries.

Castro therefore lacks Article III standing to sue.

1. Because the Commission lacks authority to reject candidacy

declarations from disqualified candidates, Castro’s purported injuries

are not traceable to or redressable by an order directed at the

Commission.

To have Article III standing a plaintiff must establish: (1) he has “suffered an ‘injury in

fact[,]” which the Supreme Court defines as “an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not [merely] conjectural or

hypothetical,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and

quotation marks omitted); (2) that there is a “causal connection between the injury and the

conduct complained of[,]” which requires the injury to be “fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third party not

before the court,” id. (internal quotation marks and alterations omitted); and (3) that it is “likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id.

at 561 (internal quotation marks omitted).

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To establish traceability, a plaintiff must establish that the defendant’s challenged actions

caused the plaintiff’s injury. See Lujan, 504 U.S. at 560. Redressability requires that a plaintiff

demonstrate “a substantial likelihood that the requested relief will remedy the alleged injury in

fact.” Teton Hist. Aviation Found. v. U.S. Dep’t of Def., 785 F.3d 719, 724 (D.C. Cir. 2015) (per

curiam) (internal quotation marks omitted). A “substantial likelihood” requires “more than the

remote possibility . . . that [the plaintiff’s] situation might . . . improve were the court to afford

relief,” Warth v. Seldin, 422 U.S. 490, 491 (1975). To obtain the extraordinary relief of an

injunction, Castro “cannot ‘rest on . . . mere allegations, but must set forth by affidavit or other

evidence specific facts’ that, ‘if taken to be true,’ demonstrate a substantial likelihood of

standing.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d

371, 377 (D.C. Cir. 2017).

Here, no order this Court could direct to the Commission could redress plaintiff’s

purported injury because FECA does not grant the Commission authority to reject a Statement of

Candidacy because the candidate is constitutionally ineligible for office. FECA regulates only

the financing of federal campaigns, that is, the organization of campaign committees; the raising,

spending, and disclosing of campaign funds; and the receipt and use of public funding for

qualifying candidates. See generally 52 U.S.C. §§ 30101-30126. Castro does not cite any FECA

provision or other authority that would grant the Commission unilateral authority to disqualify a

person from running for federal office. Nor could he, because Congress has not granted the

Commission the power to refuse to accept candidates’ statements of candidacy on the basis that

plaintiff has asserted.

Clear agency precedent establishes that FECA does not permit the Commission to

prohibit even an acknowledged unqualified candidate from raising funds or campaigning for

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 10 of 18 

office. See FEC Advisory Op. 2011-15 (Hassan), 2011 WL 3917133 (Sept. 2, 2011). In Hassan,

the Commission concluded that FECA did not prohibit a naturalized citizen “from becoming a

‘candidate’ as that term is defined in” the Act even though the Constitution provides that only “‘a

natural born Citizen . . . shall be eligible for the Office of President.’” Id. at *1-2 (quoting U.S.

Const. art. II, § 1, cl. 5). As the Commission concluded, FECA’s “definition of ‘candidate’ does

not turn on whether an individual is a natural born citizen or a naturalized citizen, so long as that

person meets the other criteria that define a ‘candidate.’” Id. at *2. FECA “does not prevent [a

person] from holding himself out as a candidate because the statutory definition does not turn on

a person’s eligibility to be seated for the office he or she seeks.” Id. at *2.2 To the extent there is

any ambiguity whether FECA’s statutory definition of “candidate” permits the Commission to

reject a filing pursuant to the Disqualification Clause or other constitutional requirements for

candidate eligibility, this Court should give deference to the FEC’s reasonable construction.

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

Because FECA does not authorize the Commission to reject candidate filings for

purported disqualification for office, Castro has not established standing or entitlement to relief.

2. Filing a Declaration of Candidacy does not confer the Commission’s

endorsement to raise funds.

Although the Commission requires all persons meeting FECA’s candidacy definition to

comply with FECA’s requirements, declaring one’s candidacy by filing with the Commission is

The Commission also concluded that “[c]lear and self-avowed constitutional ineligibility

for office” was a basis for denying a prospective candidate’s entitlement to public funds under

the Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042. See FEC

Advisory Op. 2011-15 (Hassan), 2011 WL 3917133, at *3. Unlike FECA, however, that act

calls upon the Commission to make eligibility determinations, 26 U.S.C. § 9033, in a context

with a different constitutional standard, Buckley v. Valeo, 424 U.S. 1, 95-96 (1976) (per curiam).

Even then, Hassan does not indicate such a finding would be appropriate where ineligibility was

contested.

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not a license to participate in politics. Castro repeatedly asserts that the acceptance of Trump’s

statement of candidacy filings would violate Section 3 of the Fourteenth Amendment by

“expressly permitting an ineligible candidate to raise funds to unlawfully campaign for public

office,” (TRO App. at 4) and that raising money for a campaign is a “privilege.” (Id. at 4). But

seeking contributions and spending money in pursuit of political office are acts with

constitutional dimension that are not subject to the government’s prior approval. See, e.g.,

Buckley, 424 U.S. at 14-23. Unless there is a constitutionally permissible statutory prohibition,

the default rule is that the financing of federal campaigns is permitted.

Castro’s argument that the Commission has caused his injury by “bestowing upon a

constitutionally ineligible Presidential candidate the privilege of raising an unlimited sum of

campaign funds” is, therefore, manifestly incorrect. (TRO App. at 18.) If anything, declaring

one’s candidacy limits the amount of money a person may raise in connection with Federal

elections because candidates are subject to contribution limits while non-candidates generally are

not. See 52 U.S.C. § 30116(a)(1)(A). In fact, because he is not a party to this case, it is not even

clear that enjoining the Commission from accepting Trump’s candidacy filings would prevent

the former President from raising money from his supporters. See Fed. R. Civ. P. 65(d)(2)

(defining scope of persons bound by court’s injunctions or restraining order).

Because the Commission does not grant license for persons to raise funds, no act of the

Commission caused Castro’s purported fundraising injuries. As such, he lacks Article III

standing to sue.

3. This Court need not resolve Castro’s contention that Trump is

disqualified from holding office, which can be adjudicated in a proper

forum.

Because the Commission lacks authority to adjudicate Disqualification Clause claims, it

would be inappropriate for it to take any position on that question here. These matters would

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have to be litigated in an appropriate forum. But the Commission’s lack of authority to reject

candidate filings means that there is no remedy directed at the FEC this Court could grant that

would provide the relief plaintiff seeks on this claim. See Berg v. Obama, 574 F. Supp. 2d 509,

525 (E.D. Pa. 2008) (dismissing complaint against Commission for lack of standing where “[i]t

seems clear that the Campaign Act does not address the sort of corruption that Plaintiff alleges in

his Complaint”), aff’d, 586 F.3d 234 (3d Cir. 2009); Nat’l Wildlife Fed’n v. U.S. Army Corps of

Eng’rs, 170 F. Supp. 3d 6, 16 (D.D.C. 2016) (“The disconnect between the relief sought and the

harm stated therefore precludes finding the requisite redressability.”); see also Nat’l Black Police

Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (“[A] federal court has no

power to render advisory opinions or decide questions that cannot affect the rights of litigants in

the case before them.” (internal quotation marks and alterations omitted)).

If plaintiff wants to raise a challenge to Trump’s constitutional eligibility to be president,

his claim would need to lie against an appropriate entity involved with those matters, not the

FEC. See generally Derek Mueller, What the Litigation Path of Eligibility Challenges to Donald

Trump May Look Like, Election Law Blog (Nov. 15, 2022, 5:43 PM),

https://electionlawblog.org/?p=131285#more-131285.

C. Plaintiff Cannot Demonstrate Irreparable Harm

Castro fails to meet his burden to show that he will suffer irreparable harm without the

extraordinary remedy he seeks. Winter, 555 U.S. at 22. “[T]he basis of injunctive relief in the

federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974)

(citation and internal quotation marks omitted). The D.C. Circuit “has set a high standard for

irreparable injury,” underscoring that the injury “must be both certain and great . . . actual and

not theoretical.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal quotation marks

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 13 of 18 

omitted). Plaintiff must show that “the certain and immediate harm” is also “truly irreparable in

the sense that it is ‘beyond remediation.’” Fisheries Survival Fund v. Jewell, 236 F. Supp. 3d

332, 336 (D.D.C. 2017) (quoting Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204

(D.D.C. 2005).

1. Castro cannot establish any immediately impending electoral or

financial harm from the Commission’s acceptance of Trump’s

Statement of Candidacy.

Trump’s Statement of Candidacy does not cause any immediate irreparable harm. As of

today, the nominating contests for the Republican presidential nomination remain more than 14

months away. That leaves ample time for the Court to resolve any properly asserted challenge to

a candidate’s eligibility before any candidate would face voters. While the Commission

steadfastly maintains this is not such a proper challenge, even if Castro were fully correct on the

merits of his claims, he would not face voters in an election with a disqualified candidate until

2024.

Nor can Castro show that any other concrete injury is certainly impending. See Union of

Concerned Scientists v. U.S. Dep’t of Energy, 998 F.3d 926, 929 (D.C. Cir. 2021) (“[A]

threatened injury must be ‘certainly impending” or there has to be a “substantial risk that the

harm will occur”) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).

Castro’s argument that he suffers irreparable financial harm from Trump’s declaration of

candidacy (TRO App. at 16-19) is legally incorrect and factually unsupported.3 The basis of

Castro’s legal argument is that, now that Trump has declared his candidacy, Castro will face

diminution of opportunity to obtain campaign contributions from donors. (Id. at 18-19.) But

Castro also asserts there are “First Amendment Implications” to denying his request for

injunctive relief. (TRO App. at 18-19.) That argument, however, appears to exclusively rely on

the assertion that he must compete with Trump for limited campaign donations and so fails for

the same reasons.

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courts have never treated the universe of potential campaign contributions as a “finite and limited

resource.” (TRO at 24.) Contribution limits do not “reduce the total amount of money

potentially available to promote political expression,” but rather “merely . . . require candidates

and political committees to raise funds from a greater number of persons.” Buckley, 424 U.S. at

22. Potential contributors may give to an unlimited number of candidates, McCutcheon v. FEC,

572 U.S. 185, 227 (2014) (striking down aggregate contribution limits), and so the fact that some

donors may give to Trump’s campaign does not restrict Castro’s ability to seek additional

contributions from those same donors. If anything, Trump’s declaration of candidacy makes it

easier for Castro to compete with Trump for contributions, because contributions to entities

affiliated with Trump are now unambiguously subject to the dollar limit. In the period before his

candidacy began — whenever that was, given that plaintiff had previously called the timing into

question in count one — Trump could coordinate with independent expenditure entities that had

no contribution limit.

To the extent Castro is arguing that some donors will elect not to contribute to Castro

because Trump is a candidate, he offers only speculation in support of that factual assertion. A

plaintiff’s “mere allegations, without more, do not support a finding of irreparable

injury.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297-99. Indeed, Castro must

demonstrate his entitlement to temporary relief with evidence supporting his application. But he

has not identified a single person who would otherwise donate to his campaign if Trump were

not a declared candidate. See Save Jobs USA v. U.S. Dep’t of Homeland Security, 105 F. Supp.

3d 108, 113 (D.D.C. 2015) (holding that plaintiff failed to establish irreparable competitive harm

where they had not submitted evidence that its members would compete for jobs with visa

recipients authorized to apply for employment authorization by challenged rule). It is not

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enough for Castro to allege that he “could” compete with Trump over the same pool of potential

donors, he must demonstrate that he would lose out on contributions that he would otherwise

obtain. Id. Castro has failed to offer any such evidence. And even if Castro had submitted this

evidence, he would not be able to demonstrate a likelihood of success on the merits in any event.

Castro otherwise asserts that the Disqualification Clause “created an implied right to be

free of having to compete against individuals engaged in insurrection against the United States of

America” (TRO App. at 14), but he cites nothing to support that conclusory statement. The text

of the Disqualification Clause speaks not of competition over campaign contributions or

elections but of a prohibition on “holding office.” Const. Amend. 14, § 3, cl. 1. And Castro

nowhere provides support for the idea that it grants an individual right to sue to be free from

financial competition with candidates that should be disqualified or a freestanding right to

petition the judiciary to adjudicate such claims, let alone a lawsuit directed at the FEC.

2. Castro’s delay in seeking relief indicates that any harm is not

imminent or irreparable.

Additionally, Castro’s delay in filing this motion further undermines any claim of

irreparable harm. See, e.g., Tenacre Foundation v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996)

(finding that seven-month delay before filing suit “undermines any assertions that [plaintiff] will

suffer irreparable harm if the Court does not grant preliminary injunctive relief”) (internal

quotation marks omitted); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975)

(holding that delay of forty-four days before seeking injunctive relief “bolstered” the “conclusion

that an injunction should not issue”); W. Watershed Projects v. Bernhardt, 468 F. Supp. 3d 29,

50 (D.D.C. 2020). Castro first alleged that Trump met FECA’s definition of candidacy despite

his constitutional ineligibility for office in a complaint filed in this Court on February 11,

2022. Compl., Castro v. FEC, No. 1:22-cv-369 (D.D.C. filed Feb. 11, 2022). Rather than seek

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 16 of 18 

injunctive relief at that time, Castro instead voluntarily dismissed that lawsuit, reportedly to file

an administrative complaint with the Commission. Minute Order, Castro v. FEC, No. 1:22-cv369 (D.D.C. Apr. 13, 2022); see Compl. ¶ 2 (purporting to assert a claim under 52 U.S.C.

§ 30109 for “unlawful agency delay”).) Castro then filed the instant action on July 25,

2022. (See Compl.) Although he admits that he has been considering seeking temporary

injunctive relief since early October (TRO App. at 4-5), Castro took no steps to seek that relief

until November 16 — more than nine months after making his initial allegations at issue in his

application.

That delay also means that Castro’s motion comes too late to prevent the filing of the

form Castro seeks to enjoin. Trump has already filed the statement of candidacy — his FEC

Form 2 — that Castro seeks to enjoin the Commission from accepting. See Donald J. Trump,

Statement of Candidacy (Nov. 15, 2022), https://docquery.fec.gov/cgibin/forms/C00828541/1661552/. Far from preserving the status quo, Castro’s motion seeks to

upend it. See Abdullah v. Bush, 945 F. Supp. 2d 64, 67 (D.D.C. 2013) (“A preliminary

injunction that would change the status quo is an even more extraordinary remedy.”). But even

assuming the merits of Castro’s Disqualification Clause claim may be heard in this forum in a

lawsuit directed at the Commission, that claim can and should proceed in the normal course

without temporary or preliminary relief.

Because “[t]he basis of injunctive relief in the federal courts has always been irreparable

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974), Castro’s failure to establish this element

alone warrants denial of the requested temporary restraining order and preliminary injunction.

D. The Balance of Harms Favors the Commission and an Injunction Would be

Contrary to the Public Interest

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 17 of 18 

The balance of the equities and the public interest also weigh heavily in favor of

preserving the status quo and denying plaintiff’s request for extraordinary injunctive relief.

“It is in the public interest for courts to carry out the will of Congress and for an agency to

implement properly the statute it administers.” Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30,

45 (D.D.C. 2000).

It bears repeating that Castro asks this Court to intervene to prevent a former President

from even raising funds for election. Plaintiff cites no precedent that supports such an order.

Government action, including from the Judicial Branch, to prevent a potential candidate from

raising any funds for office implicate extremely serious First Amendment speech and association

concerns and should not be done absent a clear entitlement to relief that is lacking here. If

Castro wishes to pursue his claim that Trump is disqualified from office, he should press it

against appropriate entities.

D. Castro is Not Entitled to a Declaratory Judgment

Castro’s memorandum requests a final declaratory judgment that the Commission’s

acceptance of Trump’s statement of candidacy would be contrary to law (TRO App. at 20), but

he is not entitled to final relief at this preliminary stage. “The purpose of a preliminary

injunction is merely to preserve the relative positions of the parties until a trial on the merits can

be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). As such, it is “generally

inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on

the Merits.” Id.

E. No Hearing on this Motion is Necessary or Required

Finally, although plaintiff requests a hearing in this matter, the Court is not required to

provide the plaintiff a hearing where, as is here, one is unnecessary. See Johnson v. Holway, 329

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Case 1:22-cv-02176-RC Document 19 Filed 11/17/22 Page 18 of 18 

F.Supp.2d 12, 14 n. 1 (D.D.C.2004) (denying the plaintiff’s request for an evidentiary hearing

because the existing record was sufficient); Local Civil Rule 65.1(d) (requiring a hearing on an

application for a preliminary injunction no later than 21 days after its filing, unless the court

earlier decides the motion on the papers). The record is sufficient to demonstrate Castro’s lack

of a right to the relief he seeks here and thus no hearing is necessary for the Court to make this

determination.

III. CONCLUSION

For the foregoing reasons, plaintiff’s application for an emergency temporary restraining

and motion for preliminary injunction order should be denied.

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Jacob Siler (D.C. Bar No. 1003383)

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov jsiler@fec.gov

Kevin Deeley /s/ Shaina Ward

Associate General Counsel Shaina Ward (D.C. Bar No. 1002801)

kdeeley@fec.gov Attorney

sward@fec.gov

November 17, 2022

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

(202) 694-1650

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