UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

et al., ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-1953 (BMK, RJL, RMC) 

 ) 

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL MEMORANDUM 

et al., ) IN SUPPORT OF MOTION TO DISMISS

 Defendants. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

Pursuant to the Court’s Order dated May 5, 2009, Defendant Federal Election 

Commission (“Commission”) respectfully submits this supplemental memorandum in support of 

its motion to dismiss Plaintiffs’ amended complaint. 

I. Steele’s Claims are Barred by Res Judicata 

Although Plaintiff Michael Steele was not personally a party to McConnell v. FEC, 540 

U.S. 93 (2003), the doctrine of res judicata prohibits his relitigation of that case. Plaintiffs’ 

original complaint alleged that “Robert M. (Mike) Duncan is . . . the [Republican National 

Committee] Chairman, in which capacity he is RNC’s chief executive officer.” (Compl. ¶ 14.) 

As the Commission explained in its motion to dismiss that complaint, Duncan’s claims — of 

which only one was a claim in his own right independent of the RNC — were precluded by res 

judicata because Duncan had asserted and lost the same claims in his capacity as an RNC officer 

in McConnell. (See Def. FEC’s Mem. in Support of Mot. to Dismiss (Docket No. 20).) After the 

Commission filed its motion to dismiss, Michael Steele was elected Chairman of the RNC, and 

Plaintiffs moved to amend their complaint for “[t]he sole purpose of . . . substitut[ing] Michael 

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Steele for Robert ‘M’ Duncan” in “his official capacity of the RNC Chairman.” (Pls.’ Mot. for 

Leave to File Amended Compl. (Docket No. 51) at 1-2.) The Court granted Plaintiffs’ motion to 

amend on May 5, 2009. 

Res judicata, including both claim preclusion and issue preclusion, “is central to the 

purpose for which civil courts have been established, the conclusive resolution of disputes within 

their jurisdictions.” Montana v. United States, 440 U.S. 147, 153 (1979). Precluding relitigation 

“protects . . . adversaries from the expense and vexation attending multiple lawsuits, conserves 

judicial resources, and fosters reliance on judicial action by minimizing the possibility of 

inconsistent decisions.” Montana, 440 U.S. at 153-54; see also Apotex, Inc. v. FDA, 393 F.3d 

210, 217 (D.C. Cir. 2004) (quoting Montana); Safadi v. Novak, 574 F. Supp. 2d 52, 55 (D.D.C. 

2008) (same). Thus, “a judgment on the merits in a prior suit bars a second suit involving 

identical parties or their privies based on the same cause of action,” Apotex, 393 F.3d at 217, and 

any issues that were “actually and necessarily” decided in the earlier case cannot be relitigated. 

See Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (citing Yamaha Corp. of Am. 

v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). 

As a general matter, because each person has a right to litigate his own cause of action, a 

plaintiff who was not a party to a prior lawsuit usually is not subject to preclusion arising from 

that earlier suit. See Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008). There are, however, 

substantial exceptions to this general rule — situations in which the plaintiff is bound by the first 

case, despite his not technically being a party to it. See id. at 2172. The Supreme Court recently 

set out a “framework” describing six established categories of nonparty preclusion, including 

situations in which (1) there is a “pre-existing substantive legal relationship[ ] between the 

person to be bound and a party to the judgment . . . . includ[ing], but . . . not limited to, preceding 

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and succeeding owners of property”; (2) the new plaintiff “was adequately represented by 

someone with the same interests who [wa]s a party to the suit”; and (3) “a nonparty . . . brings 

suit as an agent for a party who is bound by a judgment.” See id. at 2172-73 (internal citations 

and quotation marks omitted). 

Applying res judicata to Steele — a nongovernmental officer purporting to sue in the 

same “official” capacity as a prior plaintiff — is consistent with the categories of nonparty 

preclusion noted in Taylor. First, to the extent Steele claims an interest in conducting the 

solicitations that are the subject of this litigation, his position is that of a successor-in-interest, 

i.e., he is the successor to Duncan’s claim regarding the RNC’s nonfederal fundraising 

solicitations. (See Pls.’ Mot for Leave to File Am. Compl. at 1 (“Steele’s position is the same as 

Duncan’s.”).) Steele is therefore precluded from relitigating Duncan’s failed lawsuit on that 

matter. See Am. Forest Council v. Shea, 172 F. Supp. 2d 24, 27 (D.D.C. 2001) (holding that 

plaintiff was “clearly barred by res judicata in this action, being a direct successor-in-interest to 

an actual participant” in prior action against government agency). Second, to the extent Steele 

brings this suit as an “official capacity” claim as an RNC officer and relies upon the principles 

applicable to substituting successor government officials (see Pls.’ Mot for Leave to File Am. 

Compl. at 2 (“Just as successors in public office are automatically substituted, . . . Steele should 

be allowed to replace Duncan in his official capacity of the RNC Chairman . . . .”)), Duncan 

already litigated that “official” claim in McConnell, and so Steele is subject to the same 

preclusion that would prohibit any other official from escaping a judgment imposed on his 

predecessor in office.1

 See 18A Wright, Miller & Cooper, Federal Practice & Procedure § 4458 

 

1

 Indeed, Steele can only bring an official-capacity claim because the fundraising 

restriction only applies to him when he is acting “on behalf of” the RNC. 2 U.S.C. § 441i(a)(2). 

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nn. 15-16 (2d ed. 2002) (“[S]uccessors in office are bound to judgments against their 

predecessors.”) (citing New Orleans v. Citizens’ Bank of La., 167 U.S. 371, 389 (1897) (“The 

mere fact that there has been a change in the person holding the office does not destroy the effect 

of the thing adjudged.”)); Restatement (Second) of Judgments § 36 cmt. e (1982 & Supp. 2008) 

(noting that suit involving government officer in official capacity is “binding on the 

governmental body of which he is an official and on his successors in office”). Finally, because 

Steele’s claims regarding solicitation of soft money are simply derivative of the RNC’s claims 

regarding raising and spending soft money, he is precluded from relitigating McConnell as “an 

agent for a party who is bound by a judgment,” i.e., the RNC. See Taylor, 128 S. Ct. at 2173 

(citing 18A Wright, Miller, and Cooper, Federal Practice & Procedure § 4449); cf. Restatement 

(Second) of Judgments § 59(2) (1982 & Supp. 2008) (“The judgment in an action to which the 

corporation is a party is binding under the rules of res judicata in a subsequent action by 

[individuals] suing derivatively in behalf of the corporation . . . .”). 

The practical effect that would arise from permitting Steele to proceed in this case 

demonstrates why he must be subject to preclusion: If each successive Chairman of the RNC has 

the right to litigate his own constitutional action against BCRA, the instant lawsuit would not 

bind Steele’s successors. In other words, even if the Commission were to prevail on the merits 

of this case, each successive RNC Chairman would be able to relitigate the cause of action yet 

again, claiming his or her own “as-applied” constitutional exemption from BCRA. Conversely, 

under Steele’s rationale of non-preclusion, if Steele were to prevail in this action, the 

Commission would nonetheless be able to prohibit the RNC’s next Chairman from soliciting soft 

 

See McConnell, 540 U.S. at 157 (“[O]fficers of national parties are free to solicit soft money in 

their individual capacities. . . .”). 

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money, as the Court’s ruling would be effective only as to Steele himself. Such results would be 

directly contrary to the finality and reliance interests underlying res judicata. 

The Supreme Court upheld BCRA Title I and ruled against Duncan in McConnell. For 

that holding to constitute a “conclusive resolution,” Montana, 440 U.S. at 153, it must bind 

Duncan’s successor. 

II. Steele’s Claim Fails as a Matter of Law Under McConnell 

Even if res judicata did not preclude this action, Steele’s claim, like all of the others in 

this case, fails as a matter of law because McConnell held that BCRA Title I is narrowly tailored 

to the government’s interest in preventing actual and apparent corruption, regardless of the 

activities that would be funded with soft money if it were permitted. (See Def. FEC’s Mem. in 

Support of Mot. to Dismiss at 28-29.) Steele’s cause of action, which seeks the ability to raise 

soft money only for certain purposes, does not state a claim under that constitutional standard. 

III. Conclusion 

For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

the Amended Complaint for failure to state a claim on which relief can be granted. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

 /s/ Kevin Deeley 

Kevin Deeley 

Assistant General Counsel 

Adav Noti (D.C. Bar No. 490714) 

Attorney 

COUNSEL FOR DEFENDANT 

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FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: May 18, 2009 (202) 694-1650 

Case 1:08-cv-01953-RJL-RMC Document 74 Filed 05/18/2009 Page 6 of 6