UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) REBUTTAL MEM. IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION FOR RULE 56(d) RELIEF 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REBUTTAL MEMORANDUM 

IN SUPPORT OF MOTION TO ALLOW TIME FOR DISCOVERY UNDER RULE 56(d) 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

Holly J. Baker* 

Esther D. Gyory (VA Bar # 76826) 

Kevin P. Hancock* 

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

June 2, 2014 (202) 694-1650 

* Admitted Pro Hac Vice 

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TABLE OF CONTENTS 

ANALYSIS ................................................................................................................................2 

A. Plaintiffs Fail to Refute the Commission’s Showing That They Filed 

Their Summary Judgment Motion Prematurely and That It Denied 

the FEC the Adequate Time for Discovery That Due Process Requires ..........2 

B. The Court Should Deny Plaintiffs’ Motion Without Prejudice to 

Allow Time for Discovery Because the FEC Has Satisfied Rule 56(d) ............3 

1. The FEC Requires Discovery Essential to Its Opposition to 

Plaintiffs’ Motion on the Merits ............................................................4 

2. The FEC Also Requires Discovery Essential to Its Opposition 

to Plaintiffs’ Motion on Jurisdictional Grounds ..................................11 

C. Plaintiffs’ Delay Until the Eve of an Election to File This Suit 

Does Not Override the Commission’s Right to Conduct Discovery ..............14 

CONCLUSION ........................................................................................................................15 

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Defendant Federal Election Commission (“FEC” or “Commission”) requests that this 

Court grant its motion under Federal Rule of Civil Procedure 56(d) to allow time for discovery. 

In its opening brief and Rule 56(d) declaration (Docket Nos. 27-1, 27-2), the Commission 

demonstrated that plaintiffs filed their motion for summary judgment prematurely and that 

without discovery, the agency cannot present facts essential to its opposition. Plaintiffs have 

failed to show otherwise. Nevertheless, they urge the Court to invalidate several 40-year old 

anti-corruption provisions of the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, 

on the eve of a federal election, without permitting the government the benefit of any discovery. 

Plaintiffs fail to counter the Commission’s showing that their summary judgment motion 

— filed just 22 days after their Complaint — would deny the FEC the time for discovery that due 

process requires. They do not retract their own contentions that the FEC must “introduce actual 

evidence” to defend FECA. And they make no effort to distinguish the long line of similar cases 

in which courts have allowed the Commission to take discovery to introduce such evidence. 

Plaintiffs claim that this case presents “pure questions of law” and that the factual details 

of their suit were settled 38 years ago in Buckley v. Valeo, where the Supreme Court facially 

upheld two of the statutes plaintiffs attack here. But plaintiffs assert as-applied claims that they 

have previously argued are “easily distinguishable” from Buckley. The Commission is entitled to 

test whether plaintiffs’ as-applied claims are in fact distinguishable. Plaintiffs also claim that 

there is no need for jurisdictional discovery. But they present one-sided jurisdictional evidence 

to this Court, seek to present more jurisdictional evidence at the June 20 hearing on this motion 

— as if that would obviate the need for discovery — and suggest that they will resort to the 

factbound capable-of-repetition-yet-evading-review doctrine to try to save their soon-to-be-moot 

claims.

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Finally, plaintiffs contend that discovery would “unnecessarily delay” the resolution of 

their claims, which they assert require expedition. But such assertions are irrelevant to the Rule 

56(d) inquiry, and in any event it was plaintiffs’ own unnecessary delay in waiting until the eve 

of an election to file suit that has created the alleged “time pressure” of which they complain. 

Accordingly, the Commission’s Rule 56(d) motion should be granted. 

ANALYSIS 

A. Plaintiffs Fail to Refute the Commission’s Showing That They Filed Their 

Summary Judgment Motion Prematurely and That It Denied the FEC the 

Adequate Time for Discovery That Due Process Requires 

In its opening brief (see FEC’s Mem. in Supp. of Mot. to Allow Time for Disc. Under 

Rule 56(d) and in Opp. to Pls.’ Mot. for Summ. J. (“FEC’s Rule 56(d) Br.”) at 8-9 (Docket No. 

27-1)), the FEC explained that because due process entitles parties to a full opportunity to 

present their cases, summary judgment is appropriate only after “‘adequate time for discovery.’” 

Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Applying that principle, the Fourth Circuit 

has reversed a district court’s “premature” pre-discovery grant of summary judgment that came 

just six weeks after the complaint — even where the nonmoving party did not comply with Rule 

56(d). See id. at 243-47. And at least one court in this district has “refuse[d] to address” the 

merits of a summary judgment motion because it was filed just 21 days after the complaint. TC 

Tech. Mgt. Co. v. Geeks on Call Am., Inc., Civ. No. 2:03-714, 2004 WL 5154906 at *7 (E.D. Va. 

Mar. 24, 2004).1

                                                           

1

 The factual issues regarding the risk of actual and apparent corruption and contributionlimit circumvention in this case are similar in complexity to the factual issues in Harrods Ltd.

and TC Tech Mgt., and so those cases are not distinguishable as plaintiffs assert. (Pls.’ Rebuttal 

Br. in Supp. of Mot. for Summ. J. and Against FEC’s Rule 56(d) Mot. (“Pls.’ Opp’n”) at 11-12 

(Docket No. 29).) 

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 Plaintiffs here filed their summary judgment motion just 22 days after the Complaint. 

(Docket No. 6.) They do not claim in their opposition brief that 22 days provides adequate time 

for discovery, nor could they. By the time plaintiffs filed their summary judgment motion, the 

FEC had yet to even appear in the case, and the agency still had 41 days to file its responsive 

pleading. (Decl. of Counsel in Supp. of FEC’s Mot. to Allow Time for Disc. Under Rule 56(d) 

(“Hancock Decl.”) ¶ 5 (Docket No. 27-2).) At that point, the FEC was not even permitted to 

begin taking discovery, since plaintiffs’ premature filing had prevented the parties from having a 

reasonable opportunity to meet and confer under Rule 26(f) to make a discovery plan. Fed. R. 

Civ. P. 26(d)(1). On that ground alone, this Court may deny plaintiffs’ summary judgment 

motion. See, e.g., Harrods Ltd., 302 F.3d at 244-45. 

B. The Court Should Deny Plaintiffs’ Motion Without Prejudice to Allow Time 

for Discovery Because the FEC Has Satisfied Rule 56(d) 

In any event, the Court should deny plaintiffs’ motion for summary judgment under Rule 

56(d) because the FEC has demonstrated in its declaration (Docket No. 27-2) that it “cannot 

present facts essential to justify its opposition,” Fed. R. Civ. P. 56(d); see also McCray v. Md. 

Dep’t of Transp., 741 F.3d 480, 483-84 (4th Cir. 2014) (“A Rule 56(d) motion must be granted 

where the nonmoving party has not had the opportunity to discover information that is essential 

to his opposition.” (internal quotation marks omitted)). 

The Complaint’s three claims challenge the constitutionality of several FECA provisions. 

First, plaintiffs claim that FECA’s requirement that a political committee (“PAC”) be registered 

with the FEC for six-months before becoming a multicandidate PAC, 2 U.S.C. § 441a(a)(4), 

violates the First Amendment as applied to plaintiff Stop Reckless Economic Instability caused 

by Democrats PAC (“Stop PAC”). (See Hancock Decl. ¶ 4 (Docket No. 27-2).) Second, 

plaintiffs contend that FECA’s limit of $2,600 per election on contributions from “persons” to a 

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federal candidate, 2 U.S.C. § 441a(a)(1)(A), violates the Fifth Amendment as applied to Stop 

PAC and a $5,000 contribution that it wants to make to plaintiff and federal candidate Niger 

Innis and plaintiff Niger Innis for Congress before the June 10, 2014 Nevada primary election.2 

(See Hancock Decl. ¶ 4 (Docket No. 27-2).) Third, plaintiffs argue that FECA’s annual limits on 

contributions from multicandidate PACs, such as plaintiff Tea Party Leadership Fund (“Tea 

Party Fund”), to national party committees, 2 U.S.C. § 441a(a)(2)(B) ($15,000), and to state 

party committees, id. § 441a(a)(2)(C) ($5,000), violate the Fifth Amendment. (See Hancock 

Decl. ¶ 4 (Docket No. 27-2).) In support of these claims, plaintiffs have made numerous factual 

contentions and submitted evidence. (See Docket Nos. 6-2, 6-3, 6-4, 29-1, 29-2, 29-3, 29-4.) 

As fully explained in its Rule 56(d) declaration, the FEC requires discovery to present its 

own evidence essential to its defense of FECA, both on the merits and jurisdictional grounds. 

1. The FEC Requires Discovery Essential to Its Opposition to Plaintiffs’ 

Motion on the Merits 

The Commission needs discovery regarding at least the following categories of facts to 

defend this case: 

 The burdens that plaintiffs allege FECA has placed on their ability to associate 

with each other and to speak. (Hancock Decl. ¶¶ 7.a, 7.f (Docket No. 27-2).) 

 Plaintiffs’ allegations that they have limited alternative means to speak and 

associate aside from making contributions that violate FECA. (Id. ¶¶ 7.b, 7.f.) 

 The disadvantages and discrimination that Stop PAC and the Tea Party Fund 

allege they suffer as a result of FECA. (Id. ¶¶ 7.c, 7.f.) 

 Whether any constitutional burdens imposed by the challenged FECA provisions 

are justified since the statutes are closely drawn to further an important 

government interest.3

 (Id. ¶¶ 7.d-7.f.) 

                                                           

2

 A “person” subject to this limit includes any “individual . . . [or] organization.” 2 U.S.C. 

§ 431(11). 

3

 In its brief regarding discovery, the FEC did not concede the appropriate level of 

constitutional scrutiny in this case, as plaintiffs claim. (See Pls.’ Opp’n at 6-8 (Docket No. 29).) 

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In their Rule 56(d) opposition, plaintiffs do not retract any of the statements in their 

summary judgment brief emphasizing that the FEC must “introduce actual evidence” to defend 

FECA. (See Mem. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ SJ Br.”) at 21-24 (Docket No. 6-

1).) Nor have plaintiffs even tried to distinguish the many cases the FEC cited in demonstrating 

the importance of a full factual record, created in part by discovery, in constitutional challenges 

to FECA. (See FEC’s Rule 56(d) Br. at 13-14 (Docket No. 27-1).) 

Nevertheless, plaintiffs urge this Court to deny the FEC’s Rule 56(d) motion and strike 

down several 40-year-old elements of federal campaign finance law on the eve of an election 

without permitting the government any discovery to defend those laws. (Pls.’ Opp’n at 1 

(Docket No. 29).) To support this extraordinary request, plaintiffs first rely upon cases outside 

the campaign finance context that actually support the FEC’s claim to discovery. Most 

strikingly, plaintiffs cite a Fourth Circuit panel ruling that affirmed a district court’s denial of a 

Rule 56(d) motion in a case involving a First Amendment overbreadth claim. (Pls.’ Opp’n at 2 

n.1 (Docket No. 29) (citing Greater Balt. Ctr. for Pregnancy Concerns v. Mayor of Balt., 683 

F.3d 539, 559 (4th Cir. 2012).) The plaintiffs fail to acknowledge, however, that the en banc

Fourth Circuit later reheard that panel decision and vacated the district court’s ruling for being 

“laden with error, in that the court denied the defendants essential discovery and otherwise 

disregarded basic rules of civil procedure.” Greater Balt. Ctr. for Pregnancy Concerns v. Mayor 

                                                                                                                                                                                               

Instead, the FEC pointed out that “plaintiffs allege” that the challenged FECA provisions fail 

“closely drawn” scrutiny (i.e., intermediate scrutiny), and therefore the Commission should be 

entitled to discovery to disprove plaintiffs’ allegation. (See FEC’s Rule 56(d) Br. at 12 (Docket 

No. 27-1).) Rebutting plaintiffs’ allegation does not preclude the FEC from arguing in the 

alternative that the challenged provisions need not satisfy closely drawn scrutiny since a lesser 

level of constitutional scrutiny should apply; indeed the Commission will demonstrate that a 

lower level of scrutiny applies to plaintiffs’ equal protection claims. But whatever the level of 

scrutiny, the history of FECA challenges shows that the level of scrutiny provides a framework 

for courts to analyze the kind of detailed factual record the FEC seeks to develop. (See id. at 13-

14 (Docket No. 27-1).) 

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of Balt., 721 F.3d 264, 271 (4th Cir. 2013) (en banc). The case presented a First Amendment 

challenge to a city law requiring limited-service pregnancy centers to post certain disclaimers. 

Id. The en banc Fourth Circuit explained that to the extent the case involved an as-applied 

challenge, the district court “was obliged to first afford the City discovery.” Id. at 282. And to 

the extent the case presented a facial challenge, “the district court could not properly evaluate the 

Ordinance’s validity in all or most of its applications without evidence concerning the distinctive 

characteristics of Baltimore’s various limited-service pregnancy centers.” Id. (“[R]egardless of 

the type of [constitutional] analysis utilized—facial or as-applied—the court abused its discretion 

by failing to recognize and honor the City’s right to discovery.”).4

 

Next, plaintiffs contend that discovery is unnecessary because the burdens and 

discrimination they claim to face due to FECA are issues of law that the Supreme Court settled 

38 years ago in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), when it upheld the facial 

validity of FECA’s contribution limits. (Pls.’ Opp’n at 2-3, 6-7, 9 (Docket No. 29).) In fact, 

plaintiffs claim that “[t]he constitutionality of [FECA’s] limits cannot hinge on any facts relating 

to Plaintiffs themselves.” (Id. at 9 (emphasis added).) According to plaintiffs, the only relevant 

evidence about the risks of corruption or circumvention that would result from the relief they 

request is that which Congress relied upon in 1974 when it enacted the FECA provisions 

plaintiffs challenge (id. at 9) — evidence that Buckley examined in facially upholding FECA’s 

contribution limits, see, e.g., 424 U.S. at 26-27 & n.28 (discussing the record’s “deeply 

                                                           

4

 Plaintiffs also rely upon Pisano v. Strach, 743 F.3d 927, 932 (4th Cir. 2014), which also 

offers them no help. (See Pls.’ Opp’n at 2 n.1 (Docket No. 29).) There, the Fourth Circuit 

affirmed a district court’s denial of a Rule 56(d) motion because the information sought was 

largely already in the record, the party seeking discovery had “ample opportunity” to pursue it 

and yet “simply chose not to do so,” and there was a “wealth of case law assessing similar 

challenges.” Pisano, 743 F.3d at 932. None of that is true in this case. 

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disturbing examples surfacing after the 1972 election” of large contributions made to obtain 

political quid pro quos). 

But plaintiffs cannot plausibly claim that their new as-applied challenge to a statute that 

was facially upheld long ago raises “pure questions of law.” (Pls.’ Opp’n at 2 (Docket No 29).) 

In particular, plaintiffs cannot suddenly embrace Buckley as a shield against discovery while also 

claiming that the case is irrelevant to the merits of their as-applied challenge. In their summary 

judgment brief, plaintiffs argue that their case is a “narrower, as-applied challenge” that is 

“easily distinguishable” from Buckley. (Pls.’ SJ Br. at 18-21 (Docket No. 6-1).) Buckley upheld 

the facial constitutionality of the same provisions plaintiffs attack in counts one and two of their 

Complaint against essentially identical First and Fifth Amendment claims. Buckley first held that 

the limit on contributions from persons to a federal candidate (which was $1000 per election at 

the time) is a constitutionally valid method of preventing corruption and the appearance of 

corruption. 424 U.S. at 23-35. The Court then held that the criteria for multicandidate PAC 

status — including the six-month registration period — “serve the permissible purpose of 

preventing individuals from evading the applicable contribution limitations by labeling 

themselves committees.” Id. at 35-36. The Court rejected the plaintiffs’ claim that the 

requirements “unconstitutionally discriminate against ad hoc organizations.” Id. at 35. “Rather 

than undermining freedom of association,” the Buckley opinion explained, the higher $5,000 

contribution limit for multicandidate PACs “enhances the opportunity of bona fide groups to 

participate in the election process,” with the qualification criteria, including the six-month 

registration period, limiting the potential for abuse of that opportunity. Id. at 35-36. 

Thus, Buckley’s holding should dispose of plaintiffs’ first two claims in this case. Cf.

RNC v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C.) (three-judge court) (“[A] plaintiff cannot 

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successfully bring an as-applied challenge to a statutory provision based on the same factual and 

legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that 

provision.”), aff’d, 130 U.S. 3544 (2010). Nevertheless, plaintiffs argue that Buckley is factually 

distinguishable from their as-applied challenge because it allegedly involved different types of 

political committee plaintiffs, and Buckley’s holding that the six-month registration period helps 

prevent circumvention is now “patently inapplicable to this suit” in light of subsequent changes 

in the law. (Pls.’ SJ Br. at 19-20 (Docket No. 6-1).) 

Plaintiffs’ efforts to evade Buckley’s holding should be unavailing, but the Commission 

cannot simply assume that courts at all levels will agree. Instead, discovery is necessary to build 

a record regarding plaintiffs’ new as-applied claim — including plaintiffs’ distinctive 

characteristics, the burdens and discrimination they claim to face, and whether any of their 

conduct illustrates that the risks of corruption, the appearance of corruption, and circumvention 

identified by Buckley persist today. See Greater Balt. Ctr. for Pregnancy Concerns, 721 F.3d at 

282 (“But to properly employ an as-applied analysis, the court was obliged to first afford the 

City discovery.”); Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) 

(en banc) (explaining that as-applied challenges, i.e., those “based on a developed factual record 

and the application of a statute to a specific person,” entail “case-by-case analyses”). Indeed, 

numerous courts entertaining as-applied challenges to FECA contribution limits long after 

Buckley have permitted discovery. See, e.g., Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 

154, 156-57, 166-67 (D.D.C. 2013) (allowing seven months for discovery in an as-applied 

challenge to a contribution limit, and then relying in part upon plaintiff’s Rule 30(b)(6) 

deposition testimony to deny its claim), aff’d mem. in relevant part, No. 13-5094, 2014 WL 

590973 (D.C. Cir. Feb. 7, 2014); Wagner v. FEC, Civ. No. 11-1841 (D.D.C. Apr. 26, 2012) 

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(Docket No. 29) (allowing discovery in as-applied constitutional challenge to FECA ban on 

contributions by federal government contractors); Cao v. FEC, 688 F. Supp. 2d 498, 504-34 

(E.D. La.) (making findings of facts relying on discovery materials following four-month 

discovery period in as-applied challenge to FECA limits on contributions in the form of 

coordinated expenditures by parties), aff’d sub nom. In re Cao, 619 F.3d 410, 414, 433 & n.32 

(5th Cir. 2010) (en banc) (relying on deposition testimony).5 

Plaintiffs’ allegations illustrate the as-applied nature of their claims and the FEC’s need 

for discovery despite Buckley. For instance, plaintiffs allege that Stop PAC is particularly 

limited in its ability to associate with Innis, besides making contributions in excess of FECA’s 

limits, because its members largely reside outside Nevada. (See Hancock Decl ¶ 7.b (Docket No. 

27-2).) They also allege that Stop PAC is unable to engage in independent speech on Innis’s 

behalf. (Id.) These allegations stand in contrast to Buckley’s finding that FECA’s contribution 

limits leave contributors free to engage in alternative means of association and expression, such 

as volunteering services and engaging in independent speech. 424 U.S. at 28-29. The doubt that 

the public record casts on plaintiffs’ allegations (see Hancock Decl. ¶ 7.b (Docket No. 27-2)) 

only further strengthens the need for discovery to clarify the record. Tellingly, plaintiffs have 

now offered to strike from their listing of “undisputed facts” the portions regarding their speech 

alternatives (Pls.’ Opp’n at 8 (Docket No. 29)), but these alternatives are still part of the legal 

analysis. Plaintiffs cannot maintain an as-applied claim that would strike down a federal statute 

                                                           

5

 Plaintiffs note (Pls.’ Opp’n at 11 (Docket No. 29)) that no discovery occurred in 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014), but that was a result of the FEC’s view (shared by 

the lower court) that the law was settled in its favor; the Supreme Court never said discovery was 

foreclosed. Indeed, that case makes clear that a record is critical because a higher court may 

decide to revisit settled law. 

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while at the same time preventing discovery of information that is critical to a proper evaluation 

of that claim. 

Finally, the FEC notes that plaintiffs have not disputed its observation that Stop PAC’s 

chairman appears to be a contributor and political consultant to the Innis campaign, as well as a 

former colleague of Innis’s. (Compare FEC’s Rule 56(d) Br. at 12-13 (Docket No. 27-1) and 

Hancock Decl. ¶ 7.e (Docket No. 27-2) with Pls.’ Opp’n at 9-11 (Docket No. 29).) Plaintiffs 

claim that these facts do not “have anything to do with the six-month cut-off.” (Pls.’ Opp’n at 10 

(Docket No. 29).) On the contrary, these facts raise the possibility that Stop PAC is a method of 

“evad[ing] the applicable contribution limitations.” Buckley, 424 U.S. at 35-36. Any evidence 

suggesting that Stop PAC or similarly situated groups threaten to facilitate circumvention of 

FECA’s contribution limits in the absence of the six-month registration period would illustrate 

that the risks of corruption and circumvention identified by Buckley persist today. And such 

evidence would undermine plaintiffs’ contention that changes in the law since Buckley have 

rendered that Court’s circumvention concerns obsolete. Plaintiffs’ attempt to prevent the 

Commission from obtaining any such evidence is impossible to square with their previous 

acknowledgment that “[i]f the Government wishes to establish that newer committees pose a 

greater risk of actual or apparent quid pro quo corruption or circumvention of other contribution 

limits, it must provide some concrete evidence.” (Pls.’ SJ Br. at 23 (Docket No. 6-1).)6

                                                           

6

 Stop PAC’s chairman’s apparent close relationship with Innis also raises an additional 

jurisdictional issue requiring discovery. Under FECA, a candidate may designate a committee 

besides his or her principal campaign committee to serve as an “authorized committee.” 2 

U.S.C. § 432(e)(1). Authorized committees may receive contributions on their candidate’s 

behalf. Id. § 431(6). If Innis has authorized Stop PAC, FECA would bar Stop PAC from ever 

becoming a multicandidate PAC, see id. § 432(e)(3), and thus Stop PAC would lack standing to 

bring its claims in this case. See infra Part B.2. 

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2. The FEC Also Requires Discovery Essential to Its Opposition to 

Plaintiffs’ Motion on Jurisdictional Grounds 

Plaintiffs’ brief also confirms the FEC’s need for jurisdictional discovery. As explained 

in the Commission’s Rule 56(d) declaration, this Court may lack jurisdiction over some or all of 

plaintiffs’ claims, depending on the underlying facts. (Hancock Decl. ¶ 8 (Docket No. 27-2).) 

First, authority from outside this Circuit suggests that this Court may lack jurisdiction to evaluate 

the merits of Innis’s claims if he is eligible to vote in a presidential election. (Id. ¶ 8.a.) Second, 

the claims of Stop PAC, Innis, and Niger Innis for Congress will likely become moot after the 

June 10, 2014 Nevada primary, potentially raising the fact-intensive issue of whether those 

claims are capable of repetition yet evading review. (Id. ¶ 8.b.) Third, whether this Court can 

redress plaintiffs’ alleged injuries hinges on several of their factual allegations, which the FEC is 

entitled to test. (Id. ¶ 8.c.) 

In response, plaintiffs present new jurisdictional evidence (see Docket Nos. 29-1 to 29-5) 

that was not included with their motion for summary judgment. And plaintiffs essentially 

request that the Court convert the June 20 oral argument on their summary judgment motion into 

a one-sided evidentiary hearing. (Pls.’ Opp’n at 12 (Docket No. 29).) That request seems to 

contradict plaintiffs’ contention that the FEC is entitled to no discovery (id. at 1-2); perhaps 

plaintiffs believe that the FEC is entitled only to the factual information plaintiffs choose to 

include with their opposition brief.7

 

Plaintiffs object that the Commission did not assume that Innis is a registered voter and 

did not simply accept plaintiffs’ view that their claims are redressable. (Pls.’ Opp’n at 2, 13 

                                                           

7

 This Court’s hearings on plaintiffs’ motion for summary judgment and the FEC’s Rule 

56(d) motion are scheduled for June 20, 2014, not June 23, as plaintiffs misstate. (See Pls.’ 

Opp’n at 12 (Docket No. 29); Decl. of Dan Backer, Esq. in Supp. of Pls.’ Mot. for Summ. J. and 

Against FEC’s Rule 56(d) Mot. ¶ 7 (Docket No. 29-1); but see Docket Nos. 8, 27-4). 

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(Docket No. 29).)8 But the point of the discovery process is that plaintiffs do not get to decide 

unilaterally what facts they need to disclose or which of their allegations need not be proved with 

actual evidence. This is particularly true when the Court’s jurisdiction is at issue. In their rush 

to “return focus to the merits of this case,” plaintiffs describe jurisdictional discovery as 

“unnecessary delay.” (Pls.’ Opp’n at 2, 13-14 (Docket No. 29).) The Court, however, has no 

power to address the merits of a case unless it has jurisdiction in the first place, see, e.g., Litman 

v. George Mason Univ., 5 F. Supp. 2d 366, 370 (E.D. Va. 1998), and that jurisdiction must rest 

upon more than plaintiffs’ assurances.9 

Plaintiffs effectively concede that counts one and two of the Complaint will soon become 

moot by suggesting that a mootness exception will save those claims. (Pls.’ Opp’n at 4 n.5 

(Docket No. 29); see Hancock Decl. ¶ 8.b (Docket No. 27-2).) As the FEC explained, after the 

June 10 Nevada primary in eight days, Stop PAC will no longer be able to make, and Innis will 

be unable to accept, a $5,000 contribution in connection with that election as they desire. (See

Hancock Decl. ¶ 8.b (Docket No. 27-2).) And on September 11, 2014, Stop PAC will become a 

multicandidate PAC, in plenty of time to make the $5,000 contributions to candidates in 

connection with the November general election or any future other election that it wishes to 

make. (Id.) 

Plaintiffs apparently plan to argue that Stop PAC’s and Innis’s claims are saved from 

mootness by the capable-of-repetition-yet-evading-review exception. (Pls.’ Opp’n at 4 n.5 

                                                           

8

 Innis’s status as a candidate registered to file reports with the Commission does not shed 

light on whether he is a registered voter, as plaintiffs suggest (Pls.’ Opp’n at 2 (Docket No. 29)), 

since voter registration is not a prerequisite for candidate status. See 2 U.S.C. § 431(2); 11 

C.F.R. § 100.3. 

9

 For example, plaintiffs incorrectly claim that the Court “need not resolve” whether it has 

jurisdiction over Innis’s claims merely because his principal campaign committee, a different 

plaintiff, requests the same relief as he does. (Pls.’ Opp’n at 4 n.4 (Docket No. 29).) 

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(Docket No. 29).) But that inquiry is “highly fact-specific.” People for the Ethical Treatment of 

Animals, Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005). Whether Innis’s claims are capable 

of repetition will turn on whether he will be a candidate in a future federal election. See, e.g., 

Davis v. FEC, 554 U.S. 724, 736 (2008) (candidate’s postelection claim was capable of 

repetition yet evading review where he publicly announced his intention to run in a future 

election). Nothing in the new evidence plaintiffs provide sheds light on Innis’s plans if he were 

to lose the Nevada primary. Yet, elsewhere in their brief, plaintiffs make the apparently 

alternative claim (relying upon non-FECA cases) that whether Innis will be a candidate again is 

irrelevant to the mootness of his claims, simply because this case involves an election. (Pls.’ 

Opp’n at 12 n.12.) However, courts addressing FECA claims, including the Supreme Court, 

have consistently required “a reasonable expectation that the same complaining party will be 

subject to the same action again” for a claim to be capable of repetition. Davis, 554 U.S. at 735 

(emphasis added; internal quotation marks omitted)); see Herron for Congress v. FEC, 903 F. 

Supp. 2d 9, 14 (D.D.C. 2012) (finding a former candidate’s FECA claim incapable of repetition 

and thus moot because he “admits that he is only considering a run for office in the future”); see 

also Mem. Order at 7, Tea Party Fund I, Civ. No. 12-1707, (D.D.C. Aug. 26, 2013) (Docket No. 

35) (“Whether or not Plaintiffs [former federal candidates] Sean Bielat and John Raese will be 

disadvantaged by the six-month waiting period in the future is an inquiry that may be answered 

through the discovery being sought by Defendant [FEC],” which asked, inter alia, whether Bielat 

and Raese planned to run for office again). And the Commission is not foreclosed from 

discovery simply because it would not be relevant under plaintiffs’ theory of the case. Parties 

are entitled to take discovery relevant to their theory of the case, particularly where, as here, that 

is the theory that finds overwhelming support in the relevant precedent. See, e.g., Charter Oak 

Case 1:14-cv-00397-AJT-IDD Document 30 Filed 06/02/14 Page 15 of 18 PageID# 228
14

Fire Ins. Co. v. Am. Capital, Ltd., Civ. No. 09-100, 2011 WL 6000562, at *2 (D. Md. Nov. 29, 

2011) (“[A] party is entitled to seek discovery on its theory of the facts and the law, and is not 

limited in discovery by the opponent’s theory.” (alteration in original) (quoting 8 Charles A. 

Wright, et al., Federal Practice & Procedure § 2011 (3d ed. 2011))). The FEC therefore will 

require discovery to test whether plaintiffs’ claims are in fact capable of repetition yet evading 

review, among other jurisdictional issues. 

C. Plaintiffs’ Delay Until the Eve of an Election to File This Suit Does Not 

Override the Commission’s Right to Conduct Discovery 

Plaintiffs argue that the discovery the FEC is entitled to “will lead only to unnecessar[y] 

delay.” (Pls.’ Opp’n at 2 (Docket No. 29).) The Rule 56(d) standard, however, does not take 

into account whether the party moving for summary judgment claims to be in a rush (see FEC’s 

Rule 56(d) Br. at 15 (Docket No. 27-1)), and plaintiffs do not contend otherwise. Plaintiffs’ 

alleged concerns regarding delay ring especially hollow given their own unnecessary delay in 

waiting until the eve of a federal election to file this lawsuit. Plaintiffs allege that they need to 

make “immediate[]” contributions in connection with the June 10 primary, or immediately 

thereafter. (Id.) And yet they waited until April 14 to file their Complaint, even though they 

could have sued much earlier. (Id.) The Tea Party Fund does not dispute that it could have 

asserted its claim more than a year and a half ago. (See id.) Similarly, Stop PAC does not deny 

that it could have registered far sooner than it did to trigger the six-month registration period so 

that it would expire in plenty of time for the June 10 Nevada primary and subsequent elections. 

(See id. (citing 11 C.F.R. § 104.1(b)).) 

Plaintiffs argue that the “time pressure” they claim to face is a result of the “impermanent 

nature” of the six-month registration period itself (Pls. Opp’n Br. at 4-5 (Docket No. 29)), but 

again, plaintiffs can control when that six-month period begins to run and whether it will expire 

Case 1:14-cv-00397-AJT-IDD Document 30 Filed 06/02/14 Page 16 of 18 PageID# 229
15

in time for an election. Plaintiffs opine that PACs are more likely to form “as elections draw 

near” (id. at 5 n.8), but the record is unclear regarding whether Stop PAC formed when it did due 

to the impending June 10 Nevada primary. This is yet another topic for discovery, since if Stop 

PAC could have registered early enough so that the six-month registration period would have 

expired in time for the June 10 Nevada primary, Stop PAC caused its own alleged injury — not 

the FEC or FECA. 

CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s Rule 56(d) motion 

and deny plaintiffs’ motion for summary judgment to allow the FEC time to take discovery. 

Respectfully submitted, 

Lisa J. Stevenson* 

Deputy General Counsel – Law 

Kevin Deeley* 

Acting Associate General Counsel 

Harry J. Summers* 

Assistant General Counsel 

 Holly J. Baker* 

 Kevin P. Hancock* 

 Attorneys 

 /s/ 

Esther D. Gyory (VA Bar #76826) 

EGyory@fec.gov 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

June 2, 2014 (202) 694-1650 

* Admitted pro hac vice

Case 1:14-cv-00397-AJT-IDD Document 30 Filed 06/02/14 Page 17 of 18 PageID# 230
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

 

 ) 

STOP RECKLESS ECONOMIC ) 

INSTABILITY CAUSED BY ) 

DEMOCRATS, et al., ) 

 ) Civ. No. 1:14-397 (AJT-IDD) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

CERTIFICATE OF SERVICE 

I hereby certify that on June 2, 2014, I will electronically file the foregoing with the Clerk 

of Court using the CM/ECF system, which will then send a notification of such filing to the 

following counsel for plaintiff: 

Dan Backer, Esq. 

DB Capitol Strategies PLLC 

717 King Street, Suite 300 

Alexandria, VA 22314 

DBacker@DBCapitolStrategies.com 

 /s/ 

Esther D. Gyory (VA Bar # 76826) 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

EGyory@fec.gov 

Case 1:14-cv-00397-AJT-IDD Document 30 Filed 06/02/14 Page 18 of 18 PageID# 231