UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FEDERAL ELECTION COMMISSION, :

:

Plaintiff, : Civil Action No.: 05-1851 (RMU)

:

v. : Document No.: 23

:

CLUB FOR GROWTH, INC., :

:

Defendant. :

MEMORANDUM OPINION

DENYING THE DEFENDANT’S MOTION FOR AN INTERLOCUTORY APPEAL CERTIFICATION

I. INTRODUCTION

The Federal Election Commission (“FEC” or “Commission”), brings suit against Club for

Growth, Inc. (“Club for Growth”), alleging that the defendant failed to register as a political

organization despite spending millions of dollars supporting the Republican National platform

during the 2000, 2002, and 2004 elections cycles. The FEC claims that these actions violated the

Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-55. 

On June 5, 2006, this court denied the defendant’s motion to dismiss. Now, the

defendant moves the court to certify its June 5, 2006 decision for immediate interlocutory appeal

pursuant to 28 U.S.C. § 1292(b). Because the defendant fails to demonstrate a substantial ground

for difference of opinion concerning this court’s prior ruling, the court denies the defendant’s

motion. 

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II. BACKGROUND

This civil action has its roots in an administrative action with the FEC. On May 13,

2003, according to the plaintiff, the Democratic Senatorial Campaign Committee (“DSCC”) filed

an administrative complaint alleging that the defendant failed to register as a political committee

and publicly report its activities. Compl. ¶ 7. The DSCC alleged that Club for Growth’s actions

(or lack thereof) violated FECA. Id. Four days following receipt of DSCC’s complaint, on May

29, 2003, the FEC sent notice of the complaint to Club for Growth, Inc., PAC (“PAC”), the

political action committee affiliated with Club for Growth, Inc. Pl.’s Opp’n to Def.’s Mot. to

Dismiss at 4. On June 3, 2003, the FEC sent notice of the DSCC’s complaint directly to Club for

Growth. Id. Club for Growth, acting through its attorney, responded to DSCC’s allegations on

June 6, 2003. 

On October 19, 2004, the Commission adopted a factual and legal analysis originally

prepared by the Commission’s General Counsel on May 13, 2004. Id. The Commission

provided the defendant with a copy of its findings, a notice of opportunity for conciliation, and a

subpoena for documents on October 27, 2004. Id. at 4-5. Over the next several months, the

parties exchanged numerous items of correspondence in an attempt to conciliate their dispute. 

Id. at 5-8. 

Critical to the defendant’s motion to dismiss was an undated letter received by Club for

Growth on July 21, 2005. In the letter, the General Counsel of the FEC stated that if the parties

were unable to reach an agreement, “the Commission has authorized this Office to file suit in

United States District Court.” Def.’s Mot. to Dismiss, Ex. 9. On September 19, 2005, the

General Counsel of the FEC notified Club for Growth that it had rejected Club for Growth’s

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September 14, 2005 reconciliation offer and filed the instant lawsuit. Id. ¶ 19. On December 5,

2005, the Commission voted to ratify its prior decision authorizing this lawsuit. Pl.’s Opp’n to

Def.’s Mot. to Dismiss at 8.

The defendant filed a motion to dismiss arguing principally that the FEC violated FECA

by authorizing the General Counsel to initiate this lawsuit prior to the conclusion of the

conciliation process. Mem. Op. (June 5, 2006) at 3. The defendant also claimed that the

Commission violated FECA in refusing to conciliate in good faith and by failing to provide Club

for Growth with timely notice of the administrative action. Id. The court denied the defendant’s

motion. The court ruled that the plaintiff’s failure to provide timely notice constituted harmless

error, id. at 5, that the plaintiff is entitled to substantial deference in its conciliation procedures,

id. at 6-9, and that the plaintiff properly ratified its prior decision to file suit, id. at 9-13.

The defendant now asks the court to certify its June 5, 2006 ruling for interlocutory

appeal. For the reasons that follow, the court denies this request. 

III. ANALYSIS

A. Legal Standard for an Interlocutory Appeal Certification

A district court may certify an order for interlocutory appeal when: (1) the order involves

a controlling question of law, (2) a substantial ground for difference of opinion concerning the

ruling exists, and (3) an immediate appeal would materially advance the disposition of the

litigation. 28 U.S.C. § 1292(b). “The party seeking interlocutory review has the burden of

persuading the Court that the circumstances justify a departure from the basic policy of

postponing appellate review until after the entry of a final judgment.” APCC Servs., Inc. v.

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Sprint Commc’ns Co., 297 F. Supp. 2d 90, 95 (D.D.C. 2003) (citing In Re Vitamins Antitrust

Litig., 2000 WL 33142129 (D.D.C. Nov. 22, 2000)). 

Although the decision of whether or not to certify an issue for interlocutory appeal is

addressed in the court’s discretion, “interlocutory appeals under 28 U.S.C. § 1292(b) are rarely

allowed” and the burden is on the movant to show that “exceptional circumstances justify a

departure from the basic policy of postponing appellate review until after the entry of a final

judgment.” First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1116 (D.D.C. 1996) (quoting

Chalfin v. Beverly Enter., Inc., 745 F. Supp. 1117, 1122 (E.D. Pa. 1990)); see also Tolson v.

United States, 732 F.2d 998, 1002 (D.C. Cir. 1984) (quoting 10 Fed. Prac. & Pro. § 2658.2, at 80

(2d ed. 1983) for the proposition that “[s]ection 1292(b) ‘is meant to be applied in relatively few

situations and should not be read as a significant incursion on the traditional federal policy

against piecemeal appeals’”). 

B. The Defendant Fails to Demonstrate a Substantial Ground for Difference of 

Opinion Concerning the Court’s June 5, 2006 Ruling 

The defendant begins its argument by complimenting the court for “consider[ing] the

ratification/jurisdiction ruling with care.” Def.’s Mot. at 2. The defendant thereafter proposes

six reasons why the court’s June 5, 2006 opinion may be incorrect. Id. at 3-5. For each of these

critiques, the defendant identifies a particular component of the court’s ruling and explains why,

in the defendant’s judgment, a reasonable arguments exists to the contrary. 

In demonstrating substantial grounds for a difference of opinion, the movant must do

more than “claim that the district court’s ruling was incorrect.” Wausau Bus. Ins. Co. v. Turner

Constr. Co., 151 F. Supp. 2d 488, 491 (S.D.N.Y. 2001). In arguing for a certification for

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interlocutory appeal, the moving party must necessarily argue the merits of the claims previously

ruled on by the court. Oyster v. Johns-Manville Corp., 568 F. Supp. 83, 86 (E.D. Pa. 1983).

The gravamen of the defendant’s challenges to the court’s opinion concerns the

applicability of the D.C. Circuit’s decision in Federal Election Commission v. Legi-Tech, Inc., 75

F.3d 704, 706-09 (D.C. Cir. 1996) to the case at hand. Id. In its June 5, 2006 ruling, this court

applied the holding in Legi-Tech in concluding that the agency had properly ratified its decision

to file suit. Mem. Op. at 8. 

The defendant argues that Legi-Tech does not apply to the case at bar because (1) “a

decision allowing ratification to correct an unforeseen and understandable error should not be

extended to allow an agency to continue, without consequence, conduct it knowingly commenced

in clear violation of the law,” (2) “ratification should not be allowed where, as here, it facilitates

disregard of a clear legislative command,” (3) “ratification should not be allowed where it

encourages ongoing violations,” (4) “[t]here is a reasoned distinction between ratifying a

voidable action and ratifying a clear unlawful act,” (5) Congress required a period of conciliation

before a vote to file suit “to maximize staff incentives to compromise,” (6) and “Legi-Tech’s

futility analysis only applies where factors such as a lack of membership turnover permit a court

to confidently predict that a remand would accomplish nothing.” Def.’s Mot. at 3-5. 

The defendant’s attempts to distinguish Legi-Tech fall flat. Nothing in the Legi-Tech

decision lends credence to the defendant’s arguments, and, indeed, the defendant cites no other

case law supporting its views. Oyster, 568 F. Supp. at 86. Although one method for

demonstrating a substantial ground for difference of opinion is “by adducing conflicting and

contradictory opinions of courts which have ruled on the issue,” Oyster, 568 F. Supp. at 86, the

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defendant does not cite a single case supporting any of its arguments. 

And though interesting, the defendant’s arguments do not satisfy the heavy burden placed

on the defendant to show that an exceptional circumstance exists which warrants an interlocutory

appeal. Tolson, 732 F.2d 998. The court did not base its June 5, 2006 ruling on novel and

untested legal theories, but on the legal doctrine of harmless error, see Mem. Op. at 5-6 (citing

Doolin v. Sec. Sav. Bank of Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998)),

deference to the FEC in its proceedings, id. at 7 (citing Hagelin v. FEC, 411 F.3d 237, 244 (D.C.

Cir. 2005)), the plain language of the FECA provision at play in this case, id. at 8, and settled

principles of agency ratification actions, id. at 9-12 (citing Legi-Tech, 75 F.3d at 708).

For these reasons, this case does not present a question involving a substantial ground for

difference of opinion concerning the ruling. 28 U.S.C. § 1292(b). Because the defendant has

failed to demonstrate the second of the three conditions required for an interlocutory appeal

certification, the court denies the defendant’s motion. 

IV. CONCLUSION

For the reasons stated herein, the court denies the defendant’s motion to certify an

interlocutory appeal. An order directing the parties in a manner consistent with this

Memorandum Opinion is separately and contemporaneously issued this 10 day of October, th

2006.

RICARDO M. URBINA

 United States District Court

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