UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) No. 13-5088 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION ) SUGGESTION OF MOOTNESS 

COMMISSION, ) 

 ) 

 Defendant. ) 

_________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S 

SUGGESTION OF MOOTNESS 

Defendant Federal Election Commission (“FEC” or “Commission”) 

respectfully informs the Court that as of January 1, 2014, the claim of plaintiff 

Libertarian National Committee, Inc. (“LNC”) in this matter is moot. In this asapplied challenge, the LNC claims that a contribution limit of the Federal Election 

Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, is unconstitutional because it 

prevented the LNC from immediately accepting a $217,734 bequest that a 

supporter left for the LNC in 2007. FECA has required instead that the decedent’s 

estate contribute the bequest to the LNC in annual amounts of no more than about 

$30,000. As of January 1, 2014, however, the LNC has either already received, or 

can immediately accept, the entire bequest. Thus, the LNC has already obtained 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 1 of 11
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everything it seeks to recover with a judgment in its favor, and therefore it can no 

longer be granted effective relief in this case. As a result, this case is moot and this 

Court no longer has jurisdiction. 

BACKGROUND 

 In April 2007, LNC-supporter Raymond Groves Burrington bequeathed 

$217,734 to the LNC upon his death. LNC v. FEC, 930 F. Supp. 2d 154, 175 

(D.D.C. 2013) (Appendix (“App.”) ¶¶ 27-29). However, FECA has long limited 

contributions to national political party committees such as the LNC, see 2 U.S.C. 

§ 441a(a)(1)(B) (“Contribution Limit”), and in 2007 and intervening years the limit 

was approximately $30,000 per calendar year, see infra pp. 4-5. Burrington’s 

estate therefore deposited the bequest into an escrow account, from which the 

estate has since made annual contributions to the LNC in amounts that comply 

with the Contribution Limit. See LNC, 930 F. Supp. 2d at 176 (App. ¶¶ 36-37). 

 Nearly four years later, in March 2011, the LNC filed suit claiming that the 

Contribution Limit violates the First Amendment as applied to Burrington’s 

bequest and potential future bequests to the LNC and other political parties. (See

Complaint, No. 11-562 (D.D.C. Mar. 17, 2011) (Docket No. 1).) The LNC seeks a 

declaration and a permanent injunction that would allow it to take “immediate 

control over the balance of the Burrington Estate funds.” (First Amended 

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3 

Complaint (“Compl.”) at 7, ¶ 24, No. 11-562 (D.D.C. May 27, 2011) (Docket No. 

13); see also id. at 8, ¶¶ 1-2.) 

Before the district court, the LNC moved under a special judicial-review 

provision in FECA, 2 U.S.C. § 437h, to have its suit certified to this Court sitting 

en banc. LNC, 930 F. Supp. 2d at 156. The district court granted the LNC’s 

motion only to the extent the LNC’s claim challenges the Contribution Limit’s 

application to the Burrington bequest. Id. at 169-71. Only that narrow claim is at 

issue in this matter (No. 13-5088).1

 (See Order (Docket No. 1426598).) 

ANALYSIS 

A. This Case Is Moot Because the LNC Can Now Accept the 

Remainder of the Burrington Bequest 

 This case is moot because as of January 1, 2014, the LNC has obtained the 

relief that it seeks: the ability to accept the entire Burrington bequest. 

 

1

 To the extent the LNC’s suit challenges the Contribution Limit as applied to 

potential future bequests to the LNC and to other political parties, the district court 

denied the LNC’s section 437h motion and granted the FEC summary judgment. 

LNC, 930 F. Supp. 2d at 165-67, 171. The LNC’s appeal of that ruling is now 

pending before this Court under ordinary review procedures in a separate matter, 

number 13-5094. On September 23, 2013, this Court denied the LNC’s motion to 

consolidate the two matters, and, at the LNC’s request, ordered that this matter be 

held in abeyance pending resolution of matter number 13-5094. (See Per Curiam

Order (en banc) at 2 (Doc. No. 1457785).) The FEC respectfully submits this 

suggestion of mootness despite the abeyance to inform the Court of the recent 

events creating a defect in its jurisdiction. See JB Pictures, Inc. v. Dep’t of Def., 

86 F.3d 236, 238 (D.C. Cir. 1996) (“Because th[e mootness] defense is 

jurisdictional, it may be raised at any time.”). 

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4 

 To have Article III standing, a plaintiff “must have suffered, or be threatened 

with, an actual injury traceable to the defendant” that is likely to be redressed by a 

favorable judicial decision. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). 

Even if a plaintiff initially had standing, when intervening events “make it 

impossible to grant the prevailing party effective relief,” the case becomes moot 

and the court no longer has jurisdiction. Burlington N. R.R. Co. v. Surface Transp. 

Bd., 75 F.3d 685, 688 (D.C. Cir. 1996). A court can no longer grant effective relief 

where the plaintiff has “obtained everything that [it] could recover by a judgment 

of th[e] court in [its] favor.” Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 91 

(D.C. Cir. 1986) (internal quotation marks omitted). 

The district court concluded on March 18, 2013, that the LNC had standing 

in this matter “because it alleges an injury connected to the FEC’s conduct — the 

prevention of obtaining immediate control of the entire Burrington bequest — that 

would be redressed by a favorable decision.” LNC, 930 F. Supp. 2d at 163. But 

today, the Contribution Limit no longer prevents the LNC from obtaining 

immediate control of the entire Burrington bequest. The Contribution Limit for 

2014 is $32,400,2

 while only $7,534 of the Burrington bequest remains. As 

 

2

 See Price Index Adjustments for Contribution and Expenditure Limitations 

and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530-02, 8532 (Feb. 6, 

2013). The Contribution Limit is indexed for inflation in odd-numbered years. Id. 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 4 of 11
5 

detailed below, the LNC has already received the rest of the $217,734 bequest in 

contributions made by the estate to the LNC since 2007.3

 

Year Amount of Burrington 

Bequest Remaining 

 Calendar Year 

Contribution Limit 

Contributions Made 

from Bequest to LNC 

2007 $217,734 $28,500 $28,500 

2008 $189,234 $28,500 $28,500 

2009 $160,734 $30,400 $30,400 

2010 $130,334 $30,400 $30,400 

2011 $99,934 $30,800 $30,800 

2012 $69,134 $30,800 $30,800 

2013 $38,334 $32,400 $30,800 

2014 $7,534 $32,400 

 

Because the LNC can now accept all that remains of the Burrington bequest, 

it has obtained everything that it could recover by a favorable judgment in this 

matter. The permanent injunction the LNC seeks against the FEC’s enforcement 

of the Contribution Limit (see Compl. at 8, ¶ 1) is no longer necessary to allow the 

LNC to take control of the balance of the Burrington bequest. And in the absence 

of any ongoing alleged injury, the declaration the LNC seeks (see Compl. at 8, ¶ 2) 

“would be an advisory opinion which federal courts may not provide,” Better 

Gov’t Ass’n, 780 F.2d at 91. It is therefore no longer possible for a court to grant 

effective relief to the LNC in this matter and so the case is moot. 

 

3

 The LNC’s disclosure reports reflecting the Burrington estate’s contributions 

from the bequest to the LNC can be found on the Commission’s website by 

searching for the last name “Burrington” and first name “Raymond” at the 

following link: http://www.fec.gov/finance/disclosure/norindsea.shtml. 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 5 of 11
6 

In its previous briefing, the LNC has essentially conceded that this matter 

would become moot on January 1, 2014. Last year, the Commission informed the 

district court that the LNC would be able to receive the entirety of the Burrington 

bequest in 2014. (See FEC Mot. to Alter or Amend the J. at 4, No. 11-562 (D.D.C. 

Apr. 15, 2013) (Docket No. 48).) In response, the LNC did not deny this fact (nor 

could it have); instead, the LNC has twice wrongly asserted that its case would be 

saved by the capable-of-repetition-yet-evading-review mootness exception. (See

LNC’s Opp’n to FEC’s Mot. to Alter or Amend at 3 n.2, No. 11-562 (D.D.C. Apr. 

29, 2013) (Docket No. 51); LNC Opp’n to FEC’s Mot. to Extend Time for Filing 

Dispositive Mots. Due to the Fed. Gov’t Shutdown at 1-2, No. 13-5094 (D.C. Cir. 

Oct. 18, 2013) (Docket No. 1461972).) 

B. This Case is Not Capable of Repetition Yet Evading Review 

The “capable of repetition, yet evading review” mootness exception has two 

requirements: (1) “the challenged action must be too short to be fully litigated prior 

to cessation or expiration”; and (2) there must be a “reasonable expectation that the 

same complaining party [will] be subject to the same action again.” Honeywell 

Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal quotation marks 

omitted; alteration in original). The LNC’s claim meets neither requirement. 

First, the challenged action in this case — the application of the Contribution 

Limit to the Burrington bequest — was not too short to be fully litigated prior to its 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 6 of 11
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expiration. The Contribution Limit prevented the LNC from accepting the entire 

Burrington bequest for seven years — from 2007 to 2013. See supra pp. 2, 5. 

Instead of filing this suit in 2007, however, the LNC waited nearly four years until 

March 2011. See supra p. 2. By that time, the LNC had already received more 

than two-thirds of the Burrington bequest. See supra p. 5. The LNC thus ran out 

of time to fully litigate this case due to its own delay, and a “litigant cannot 

credibly claim his case ‘evades review’ when he himself has delayed its 

disposition.” Armstrong v. FAA, 515 F.3d 1294, 1296 (D.C. Cir. 2008). 

Second, there is no reasonable expectation that the Contribution Limit will 

restrict a bequest to the LNC again. Burrington’s bequest is the only bequest that 

the LNC has ever received in its 43-year history in an amount in excess of the 

Contribution Limit. LNC, 930 F. Supp. 2d at 172 (App. ¶ 5), 175 (App. ¶ 34). 

Besides the Burrington bequest, the record reflects that the LNC has received just 

two bequests in 43 years. Id. at 182 (App. ¶ 69). As a “minor” political party that 

has never had a federal officeholder, the LNC typically receives donations with a 

median-size of only “approximately $25.” Id. at 172, 182 (App. ¶¶ 5-6, 69). It 

would therefore be unreasonable to expect the unique circumstances of this case to 

occur again. See, e.g., Spivey v. Barry, 665 F.2d 1222, 1234-35 (D.C. Cir. 1981) 

(holding moot a claim that “sharply focused on a unique factual context” unlikely 

to recur). 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 7 of 11
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Finally, even in the highly unlikely event that the LNC were to receive a 

bequest in the future in an amount in excess of the Contribution Limit, that bequest 

would not evade review: In matter number 13-5094, this Court is currently 

reviewing the LNC’s broader claim that the Contribution Limit is unconstitutional 

as applied to future bequests to political parties generally (including the LNC). 

That ruling would govern any future bequests to the LNC.4

 

CONCLUSION 

For the foregoing reasons, the LNC’s claim in this matter is moot and this 

Court therefore lacks jurisdiction. When a civil case is mooted pending appellate 

review, it is the “established practice” of the federal courts to “reverse or vacate the 

 

4

 In its previous briefing, the LNC has incorrectly claimed that cases that bear 

no relation to this case support its claim to the capable-of-repetition-yet-evadingreview exception. (See LNC’s Opp’n to FEC’s Mot. to Alter or Amend at 3 n.2, 

supra p. 6; LNC Opp’n to FEC Mot. to Extend Time for Filing Dispositive Mots. 

Due to the Fed. Gov’t Shutdown at 1-2, supra p. 6.) In each of those cases, a 

plaintiff sought to make then-regulated expenditures in advance of a particular 

election that had passed during the course of the litigation. The cases were found 

to be capable of repetition because the plaintiffs stated that they intended to make 

similar expenditures before future elections. The cases were found to evade 

review, however, due to the difficulty of fully litigating an action over such 

expenditures in the short amount of time before an election. See Citizens United v. 

FEC, 558 U.S. 310, 334 (2010); Davis v. FEC, 554 U.S. 724, 735-36 (2008); FEC 

v. Wis. Right to Life, Inc., 551 U.S. 449, 462-63 (2007); First Nat’l Bank of Boston 

v. Bellotti, 435 U.S. 765, 774-75 (1978). In contrast here, it is not up to the LNC 

whether it receives another bequest exceeding the Contribution Limit, and the facts 

indicate that it is highly unlikely that the LNC will. Also, this case was not mooted 

by any election; instead, the LNC had seven years to litigate this matter before it 

became moot, and yet failed to do so due to its own delay. 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 8 of 11
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[ruling] below and remand with a direction to dismiss.” Humane Soc. of United 

States v. Kempthorne, 527 F.3d 181, 184 (D.C. Cir. 2008) (internal quotation 

marks omitted). 

 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

/s/ Kevin P. Hancock 

Holly Baker 

Kevin P. Hancock 

Attorneys

February 3, 2014 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 9 of 11
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) No. 13-5088 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION ) CERTIFICATE OF SERVICE 

COMMISSION, ) 

 ) 

 Defendant. ) 

_________________________________)

CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2014, I electronically filed defendant 

Federal Election Commission’s Suggestion of Mootness with the Clerk of the 

United States Court of Appeals for the District of Columbia Circuit by using the 

Court’s CM/ECF system. 

 Service was made on the following through the CM/ECF system: 

Alan Gura 

GURA & POSSESSKY, PLLC 

101 North Columbus Street 

Suite 405 

Alexandria, VA 22314 

(703) 835-9085 

alan@gurapossessky.com 

Allen Joseph Dickerson 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

USCA Case #13-5088 Document #1478015 Filed: 02/03/2014 Page 10 of 11
2 

Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

adickerson@campaignfreedom.org 

 

/s/ Kevin P. Hancock 

 FEDERAL ELECTION COMMISSION 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 khancock@fec.gov 

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