EN BANC ARGUMENT SCHEDULED FOR NOVEMBER 30, 2018 

No. 18-5227 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

LIBERTARIAN NATIONAL COMMITTEE, INC., 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

_______________________________________________ 

On Certification of Constitutional Questions from the 

United States District Court for the District of Columbia 

_______________________________________________ 

REPLY IN SUPPORT OF FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

October 29, 2018 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

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TABLE OF CONTENTS 

I. THERE IS NO BAR TO THIS COURT’S CONSIDERATION 

OF THE COMMISSION’S JURISDICTIONAL ARGUMENTS ............ 1

II. THE LNC’S ASSERTED INJURIES WERE SELF-INFLICTED 

AND REMEDIED BEFORE THIS CASE WAS FILED ......................... 7

III. THE LNC CONTINUES TO RELY ON ITS 

COMPETITIVE DISADVANTAGE THEORY ..................................... 11

CONCLUSION .................................................................................................. 11

 

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TABLE OF AUTHORITIES 

Cases Page 

Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720 (D.C. Cir. 1994) ................. 5 

Barwood, Inc. v. District of Columbia, 202 F.3d 290 (D.C. Cir. 2000) .............. 3 

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ............................ 5 

Bread PAC v. FEC, 455 U.S. 577 (1982) ........................................................ 3, 4 

Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975) ................................................ 2 

Davis v. Pension Benefit Guar. Corp., 734 F.3d 1161 (2013) ............................ 7 

Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 

28 F.3d 1268 (D.C. Cir. 1994) ........................................................................ 9 

Gulfstream Aerospace Corp. v. Mayacamas Corp., 

485 U.S. 271 (1988) ........................................................................................ 4 

In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) ..................... 4 

Lowden v. Nw. Nat. Bank & Trust Co., 298 U.S. 160 (1936).............................. 3 

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .............................................. 4, 6 

Nat. Res. Def. Council v. Pena, 147 F.3d 1012 (D.C. Cir. 1998) ........................ 5 

Republican Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016) .............. 8, 9 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ............................... 5 

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ........................................... 4 

Statutes 

28 U.S.C. § 1254(2) ............................................................................................. 3 

28 U.S.C. § 1292 .................................................................................................. 4 

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28 U.S.C. § 1292(a)(1) ......................................................................................... 3 

52 U.S.C. § 30110 ............................................................................................ 1, 2 

52 U.S.C. § 30116(a)(9) ....................................................................................... 8 

Pub. L. No. 98-620 § 402(1)(B), 98 Stat. 3335 (1984) ........................................ 3 

Rules 

Fed. R. App. P. 27(a)(3)-(4) ................................................................................. 7 

Fed. R. App. P. 26(a)(1)(C) ................................................................................. 1 

Circuit Rule 27(g) ................................................................................................ 1 

Circuit Rule 27(g)(1) ............................................................................................ 1 

Other Authorities 

D.C. Circuit, Handbook of Practice and Internal Procedures .............................. 1 

FEC Advisory Op. 1999-14 (Council for a Livable World), 

1999 WL 521238 (July 16, 1999) ................................................................. 10 

Lawrence P. Keller, Wills (West 2017) ............................................................... 8 

 

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GLOSSARY 

Add. Addendum to Federal Election Commission’s Motion to 

Dismiss for Lack of Subject-Matter Jurisdiction 

(Document # 1749853) 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

JA Joint Appendix 

LNC Libertarian National Committee, Inc. 

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I. THERE IS NO BAR TO THIS COURT’S CONSIDERATION OF THE 

COMMISSION’S JURISDICTIONAL ARGUMENTS 

The Libertarian National Committee (“LNC”) fails to respond to much of 

what the Federal Election Commission (“FEC” or “Commission”) argued in its 

motion to dismiss, but the LNC does claim that this Court is barred from even 

considering its own jurisdiction. However, the constitutionally rooted 

jurisdictional arguments the Commission raises are foundational to the Court’s 

authority. And the Court’s rules permit doing so through early dispositive motions 

like this one, including in cases arising under 52 U.S.C. § 30110. 

This Court’s rules permitting early dispositive motions are not limited by 

subject matter or type of case. See Circuit Rule 27(g). The Commission filed its 

motion within the prescribed time period, as extended by Federal Rule of Appellate 

Procedure 26(a)(1)(C), and the motion is “dispositive,” as granting it “would 

dispose of the” case “in its entirety.” Circuit Rule 27(g)(1). This Court’s practice 

guidance similarly contemplates an early jurisdictional challenge. See D.C. 

Circuit, Handbook of Practice and Internal Procedures at 28 (“Dispositive motions 

. . . include motions for summary affirmance or reversal, motions to dismiss (on 

any ground, including jurisdiction), and motions to transfer.” (emphases added)). 

The Court’s scheduling order did not alter these deadlines. 

Consistent with this reading, this Court has granted several dispositive 

motions in cases coming to the Court pursuant to section 30110, including some 

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that questioned the Court’s jurisdiction. See, e.g., Order, Holmes v. FEC, No. 14-

5281 (D.C. Cir. Jan 30, 2015) (en banc) (granting Commission dispositive motion 

for remand to develop record for appellate review); Buckley v. Valeo, 519 F.2d 

817, 818 (D.C. Cir. 1975) (granting Commission motion to remand); cf. Order, 

Libertarian Nat’l Comm. v. FEC, No. 13-5088 (D.C. Cir. Mar. 26, 2014) (en banc) 

(dismissing case as moot on Commission’s suggestion of mootness). 

Nevertheless, the LNC claims that this Court is precluded from considering 

the Commission’s standing motion because section 30110 places exclusive and 

unreviewable jurisdiction in the district court to certify constitutional questions. 

But nothing in section 30110 does that. Rather, the statute merely authorizes 

certain classes of plaintiffs to institute actions “as may be appropriate” in the 

district court, with certification to the en banc court of appeals. 52 U.S.C. § 30110. 

The statute does not direct the court of appeals to answer the questions as certified, 

it merely instructs the court to “hear the matter sitting en banc.” Id. (emphasis 

added). And because nothing in the statute limits this Court’s jurisdiction to 

consider preliminary motions, the Rules Enabling Act does not preclude the Court 

from considering the Commission’s motion. 

While section 30110 does enable constitutional questions to be placed before 

the en banc court of appeals more quickly than they would percolate under general 

procedures, that does not negate this Court’s procedural rules. The LNC suggests 

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that section 30110 calls for “‘expedited en banc sittings’” (LNC Opp’n at 11 

(quoting Bread PAC v. FEC, 455 U.S. 577, 580 (1982))) but fails to explain that 

the provision was amended after Bread PAC to remove the requirement of 

expedition on this Court’s docket, Pub. L. No. 98-620 § 402(1)(B), 98 Stat. 3335 

(1984). 

In this respect, section 30110 operates like other statutes that provide for 

specific consideration by higher courts. For example, courts of appeals may certify 

questions to the Supreme Court under 28 U.S.C. § 1254(2). But the Supreme 

Court does not answer questions that are “abstract,” hypothetical, or “unrelated to 

the pending controversy.” Lowden v. Nw. Nat’l Bank & Trust Co., 298 U.S. 160, 

162-63 (1936). Courts of appeals conduct interlocutory review of orders relating 

to injunctions under 28 U.S.C. § 1292(a)(1), but they routinely vacate injunctions 

for lack of standing. See, e.g., Barwood, Inc. v. District of Columbia, 202 F.3d 

290, 295-96 (D.C. Cir. 2000) (vacating district court preliminary injunction 

because plaintiffs failed “to allege facts essential for standing”). 

Moreover, the LNC’s jurisdictional claim is inconsistent with Bread PAC, in 

which the Supreme Court considered whether certification was improperly granted 

because the plaintiffs were not among the three classes of parties Congress 

enumerated in section 30110. 455 U.S. at 580-85. There, the Supreme Court 

directly confronted whether parties beyond those enumerated had statutory 

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standing and did not merely defer to the district court’s decision to certify. Id. 

The LNC’s approach would also make district court decisions regarding 

jurisdiction effectively unreviewable. Any attempt by the Commission to appeal 

district court orders before certification, including those based on jurisdiction, 

would appear at best to be limited to narrow exceptions to the final judgment rule 

such as collateral orders or interlocutory decisions covered under 28 U.S.C. 

§ 1292. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 

271, 275 (1988). The high standard for obtaining mandamus relief make that 

“drastic and extraordinary remedy” a poor fit for contested jurisdictional or other 

disputes leading to certification. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 

760 (D.C. Cir. 2014). 

The Article III context of the Commission’s motion weighs strongly against 

the LNC’s argument. Article III standing reflects a “fundamental limitation” on 

the “role of the courts in a democratic society.” Summers v. Earth Island Inst., 555 

U.S. 488, 493 (2009) (internal quotation marks omitted). That doctrine establishes 

an “irreducible constitutional minimum” plaintiffs must establish to invoke federal 

court jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Even if 

the parties fail to raise Article III standing, federal courts must “satisfy themselves

that the plaintiff” has a sufficient “personal stake” to “warrant his invocation of 

federal-court jurisdiction.” Summers, 555 U.S. at 493 (internal quotation marks 

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omitted) (first emphasis added). Every appellate court has a “special obligation to 

satisfy itself not only of its own jurisdiction, but also that of the lower courts in a 

case under review,” especially in constitutional cases. Bender v. Williamsport 

Area Sch. Dist., 475 U.S. 534, 541 (1986) (internal quotation marks omitted). 

A statute cannot direct this Court to ignore defects in jurisdiction under the 

Constitution. Because Article III standing is “an indispensable element of the 

plaintiff’s case,” neither this Court “nor the Congress can dispense with the 

requirement.” Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1020 (D.C. Cir. 

1998). 

The LNC’s argument that the Court lacks jurisdiction to consider the 

Commission’s motion appears to be based on a fundamental mischaracterization of 

the motion. The Commission is not trying to relitigate whether the certified 

questions are insubstantial or frivolous (but see LNC Opp’n at 14), but whether 

this action meets the “cases” or “controversies” requirement of the Constitution. 

The LNC similarly misstates the standard of review. (LNC Opp’n at 16-17.) 

The en banc Court must determine for itself that standing exists before it can 

answer the district court’s certified questions. It cannot merely assume Article III 

jurisdiction, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998), but 

must ascertain whether it exists based on the Court’s own “independent” review. 

Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994). 

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Whether the Court makes that determination at a preliminary stage or after 

argument is ultimately irrelevant. 

Likewise, the LNC minimizes its burden at this stage of the litigation. It 

must do more than invoke “reasonable inferences” that may be drawn in its favor. 

(LNC Opp’n at 26 (internal quotation marks omitted).) As “the party invoking 

federal jurisdiction,” the LNC “bears the burden of establishing” its own 

constitutional standing. Lujan, 504 U.S. at 561. The “evidence required” increases 

as the litigation proceeds. Id. Now that the “pleading stage is over” and discovery 

is closed (LNC Opp’n at 3), the LNC’s standing must be supported by “evidence,” 

not “mere allegations.” Lujan, 504 U.S. at 561 (internal quotation marks omitted). 

Discovery adduced evidence about the LNC’s standing. The LNC faults the 

Commission for citing some of this evidence, calling it a “pile of exhibits” not 

contained within the district court’s findings. (LNC Opp’n at 15.) In truth, the 

vast majority of the Commission’s exhibits were either filings in this case or 

reflected evidence relied on by the district court. Only three documents were not 

cited in its factual findings (Add. 104-10), presumably because the court did not 

find those documents relevant to the parties’ merits arguments. But the LNC has 

not contested any of that evidence. And the LNC itself relies on evidence the 

district court declined to certify in its merits brief. (Opening Br. at 13 & n.6, 14 & 

n.7, 15 & nn.8-9.) 

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This motion is proper in its purpose and its timing. It makes no argument on 

the merits. Nor did the Commission seek to alter the case schedule. Instead, it 

promptly agreed to maintain the original merits briefing schedule. The default 

motion briefing schedule would have required the Commission to reply at the same 

time as it was preparing its own merits brief, and the Commission was prepared to 

do that. See Fed. R. App. P. 27(a)(3)-(4). It was the extension the LNC requested 

that resulted in the Commission’s reply being due last.1

II. THE LNC’S ASSERTED INJURIES WERE SELF-INFLICTED AND 

REMEDIED BEFORE THIS CASE WAS FILED 

The LNC does not contest that federal law permitted it to accept the entirety 

of Shaber’s testamentary contribution as soon as it was offered. (LNC Opp’n at 

17-18.) The LNC also does not dispute that it had substantial expenses which it 

could have — in 2015 — defrayed using funds raised pursuant to the segregated 

account provisions. (LNC Opp’n at 19.) And the LNC concedes that the district 

court erred in failing to consider its headquarters expenses from 2013-2014. (LNC 

Opp’n at 20.) 

 1

 The LNC cites two cases in which this Court disapproved of litigants 

incorporating an argument in an appellate brief by reference to arguments the 

litigant made in the district court. (LNC Opp’n at 13-14 n.3.) By contrast, the 

Commission has not made the challenged arguments “in the most skeletal way,” 

Davis v. Pension Benefit Guar. Corp., 734 F.3d 1161, 1166 (2013) (internal 

quotation marks omitted), but has instead developed them in a permissible 

dispositive motion. 

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The LNC argues that an “obvious” injury results when a party is unable to 

use “‘funds in its possession’” on the activity “‘in which it would like to engage.’” 

(LNC Opp’n at 18 (quoting Republican Party of La. v. FEC, 219 F. Supp. 3d 86, 

93 (D.D.C. 2016) (three-judge panel), aff’d, 137 S. Ct. 2178 (2017)).) But the 

Shaber funds the LNC seeks to spend are in independent escrow (JA 224-25) only 

because of the LNC’s choice to receive the money only into its general account, 

not segregated accounts. The LNC asserts that it “wanted to honor Shaber’s 

wishes that the funds not be restricted” (LNC Opp’n at 19), but the record reveals 

no such wish. Shaber instructed that the LNC’s share be distributed “outright” (JA 

224), which means going to the LNC without restriction and not in trust, see 

Lawrence P. Keller, Wills § 3:2 (West 2017). The effects of choices the LNC 

made were caused by the party, not the Federal Election Campaign Act (“FECA”). 

The LNC disputes that it could have defrayed the full amount of Shaber’s 

contribution in 2015, but ignores the fact that this case was filed in 2016. (LNC 

Opp’n at 19-23.) The LNC does not contest that its 2016 expenses were sufficient 

to exhaust the amount Shaber left to it. (See JA 188 (finding that “the LNC spent 

roughly $467,251.58 on 52 U.S.C. § 30116(a)(9)-sanctioned expenses in 2016”).) 

And no court order in 2016 or after could have remedied its asserted 2015 injuries. 

(FEC Mot. at 18-20.) 

The only form of redress the LNC identifies is from the “continuing” 

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consequences of part of Shaber’s contribution being placed in escrow. (LNC 

Opp’n at 22.) But again, the LNC caused those consequences. Indeed, Shaber’s 

estate representatives were “happy to learn” that the LNC could lawfully receive 

the full share at once in segregated accounts, and they asked how to effectuate such 

a distribution. (FEC Add. at 104-05.) The LNC declined. The LNC admits that it 

could have accepted the full Shaber contribution into segregated accounts. (See 

LNC Opp’n at 21-22.) If the LNC had done so, then a suit filed in 2015 may have 

presented a better case that the segregation provisions prevented the party from 

spending money in its possession in the way that it desired. See Republican Party 

of La., 219 F. Supp. 3d at 93. But once the calendar turned to 2016, the LNC’s 

asserted injury would have been entirely resolved, because a new set of annual 

limits applied, the LNC undisputedly had sufficient 2016 expenses meeting the 

segregated-account criteria to exhaust the Shaber contribution, and money is 

fungible. 

The LNC is free to budget resources as it wishes, and on the facts presented 

here FECA did not prevent the LNC from accessing and spending the full amount 

of Shaber’s contribution before it filed suit. This Court has even held that bona 

fide organizational budgetary choices in response to statutes are insufficient to 

constitute cognizable harm. See Fair Emp’t Council of Greater Wash., Inc. v. 

BMC Mktg. Corp., 28 F.3d 1268, 1276-77 (D.C. Cir. 1994). Here, where the LNC 

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simply declined to accept Shaber’s funds into bank accounts that could have 

financed spending the party actually undertook, even though FECA permitted it to 

do so, the asserted harms are even more obviously self-inflicted. 

Nor would accepting the full amount into segregated accounts have required 

the LNC to violate Commission guidance regarding strategic withdrawals, which 

affects only testamentary contributions that exceed the contribution limit. See FEC 

Advisory Op. 1999-14 (Council for a Livable World), 1999 WL 521238, at *1 

(July 16, 1999) (explaining that the Commission’s guidance “addressed a lump 

sum bequest in excess of” the contribution limit). It does not restrict the LNC from 

structuring its receipt of a testamentary contribution to maximize what it may 

accept within the limits into segregated accounts, as other national parties have 

done. (See JA 219-20.) 

Rather than directly address the Commission’s redressability argument, the 

LNC responds to mootness arguments the Commission did not make. (See LNC 

Opp’n at 22-25.) The Commission has not argued that the LNC’s as-applied 

claims became moot after the complaint was filed, but that the LNC lacked 

standing when this suit commenced. (FEC Mot. at 19-20.) It is therefore of no 

moment that the record describes other testamentary contributions the LNC might 

receive. (LNC Opp’n at 24.) The LNC’s certified questions related to 

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testamentary contributions are as-applied to Shaber’s contribution only. (JA 147-

48.) 

III. THE LNC CONTINUES TO RELY ON ITS COMPETITIVE 

DISADVANTAGE THEORY 

The LNC argues that its facial challenge to FECA’s segregated account 

limits does not rely on a theory of competitive disadvantage, but the LNC 

continues to rely on its argument that those limits place it at a fundraising 

disadvantage relative to other political parties. (Opening Br. at 8-9, 55.) Its 

remedy argument invokes the idea that other parties in Congress selected particular 

categories in order to harm the LNC’s electoral efforts. (See FEC Br. at 50-52.) 

And its amicus argues that the segregated account provisions affect “the ability” of 

the LNC “to convince” voters “to vote for a third-party candidate.” (Goldwater 

Inst. Br. at 4.) However, no such effect is caused by FECA. And any inability to 

raise additional funds depends on the individual decisions of potential LNC 

donors. (See FEC Mot. at 21.) The LNC lacks standing for this challenge. 

CONCLUSION 

This Court should decline to answer the certified questions for lack of 

subject-matter jurisdiction. 

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Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

/s/Jacob S. Siler 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

October 29, 2018 FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

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CERTIFICATE OF COMPLIANCE 

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

27(d)(2)(B) because it contains 2,581 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 2013 in 

14-point Times New Roman. 

/s/Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 29th day of October, 2018, 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/Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

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