IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LIBERTARIAN NATIONAL )

COMMITTEE, INC., ) No. 13-5088

)

Plaintiff, ) OPPOSITION TO 

) SUGGESTION OF MOOTNESS

v. )

)

FEDERAL ELECTION )

COMMISSION, )

)

Defendant. )

______________________________)

PLAINTIFF LIBERTARIAN NATIONAL COMMITTEE’S OPPOSITION TO

DEFENDANT FEDERAL ELECTION COMMISSION’S

SUGGESTION OF MOOTNESS

INTRODUCTION

Plaintiff Libertarian National Committee, Inc. (“LNC”) brought this

case in order to, inter alia, recover immediately and in full a surprising

$217,734 bequest from one Raymond Groves Burrington, without being

subjected to Defendant Federal Election Commission’s (“FEC”) annual

contribution limits.

But that is not the only testamentary bequest impacted by this

litigation. Burrington’s was not LNC’s last testamentary bequest. Nor

was it the only bequest ever received by a political party in an amount

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exceeding federal contribution limits. There is every reason to expect

that at least one additional LNC bequest will exceed FEC’s limits.

Indeed, yet more testamentary bequests exceeding federal contribution

limits can now be expected today thanks to the FEC’s decision to moot

a portion of this lawsuit by agreeing not to enforce a statutory

prohibition on the solicitation of over-limit bequests.

So long as contribution limits apply to testamentary bequests, FEC

requires political parties to leave generous bequests in trust, without

directing their investment, and to withdraw the maximum amount

allotted each year until the funds’ exhaustion. Those rules were applied

to Burrington’s bequest. See Certified Fact No. 35. As cases tend to do,

this case took its time winding through the District Court before

arriving here on a certified question per 2 U.S.C. § 437h. Weeks ago,

while another panel of this Court still faced LNC’s appeal regarding the

question’s scope (No. 13-5094), LNC withdrew the last of Burrington’s

bequest from trust per FEC’s guidelines. On February 7, 2014, the

panel in No. 13-5094 summarily affirmed without opinion.

FEC’s mootness suggestion follows a simple syllogism: the case

concerns only Burrington’s bequest; LNC has received the bequest in

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full; thus, the case must be dismissed as moot. Q.E.D. The Commission

speculates that LNC will never see another bequest of this kind, and

argues that in any event, LNC should have brought suit earlier.

FEC correctly states that LNC has fully recovered Burrington’s

bequest. The rest is error. Even assuming that FEC carries its “heavy

burden of establishing mootness,” Honeywell Int’l v. NRC, 628 F.3d

568, 576 (D.C. Cir. 2010) (quotation omitted), this case provides the

classic example of one “capable of repetition, yet evading review,” id.

SUMMARY OF ARGUMENT

FEC routinely claims that controversies arising from its regulation

of First Amendment speech and association must be dismissed as moot.

These claims fail because elections and political speech still recur in our

country. Davis v. FEC, 554 U.S. 724, 735-36 (2008); FEC v. Wis. Right

to Life, Inc., 551 U.S. 449, 463 (2007); see also Citizens United v. FEC,

558 U.S. 310, 334 (2010); First Nat’l Bank v. Bellotti, 435 U.S. 765,

774-75 (1978). FEC’s suggestion here is no different.

The “capable of repetition, yet evading review” exception to

mootness 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.

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Honeywell, 628 F.3d at 576 (quotation omitted). The record establishes

both factors.

The dispute is not merely capable of repetition. Its repetition is

assured. As FEC’s discovery revealed, political parties frequently

receive bequests exceeding FEC’s contribution limits. Burrington’s

bequest was not the last left LNC, nor will it likely be LNC’s only limitexceeding bequest. It would only be a matter of time before LNC relitigates the essential question of whether contribution limits may

apply to testamentary bequests raising no traditional corruption

concerns. Indeed, FEC mooted part of this case by asserting that,

statutory language notwithstanding, it would not bar LNC from

soliciting bequests in amounts exceeding the contribution limits. By

evading a serious First Amendment question regarding solicitation

rights, the FEC reassured the persistence of oversized bequests.

The District Court certainly did not understand that the case would

be dismissed for mootness upon final fulfillment of Burrington’s

bequest—an event of whose imminence the District Court was wellaware, both because it understood the math, and because FEC

unsuccessfully raised this very argument in seeking reconsideration of

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the District Court’s decision. Quite simply, the District Court did not

ascribe the certified question such limited scope. Nor should it have. 

Judge Wilkins’ opinion, and statements at the lengthy hearing

below, plainly reveal an understanding that over-limit testamentary

bequests are a recurring feature of American political discourse

requiring the First Amendment clarification that this case will elicit. To

be sure, LNC sought a yet-broader certified question, but the District

Court did not believe it narrowed the case’s impact to the four corners

of Burrington’s will. The normal rules of as-applied challenges reaching

similar situations—which regularly recur—apply.

Finally, this dispute would likely evade Supreme Court review in

most of its future manifestations. Because any federal case of this

nature takes years to complete, adoption of FEC’s mootness theory

would immunize the law from judicial review in numerous cases where

bequests fall in a zone exceeding the contribution limit but falling short

of the size necessary to sustain a case through the typical length of

litigation. LNC did not fail to take advantage of earlier appellate

avenues, nor was there ever any guarantee that this case could have

been finally resolved even had the case been filed earlier. On this note,

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LNC is constrained to observe that this Court has recently adopted a

very expansive vision of how long civil rights cases might reasonably

remain pending before the District Court.

The serious constitutional questions this case presents, certified for

en banc hearing upon the District Court’s careful consideration, are live

and recurring. This Court has jurisdiction, and should set the case for

briefing and argument.

ARGUMENT

I. REPETITION OF THIS DISPUTE IS GUARANTEED.

A controversy is “capable of repetition” where there exists a

“reasonable expectation or a demonstrated probability that the same

controversy will recur involving the same complaining party.” WRTL,

551 U.S. at 463 (quotations omitted).

Although FEC does not track political contributions received from

testamentary bequests, Clark Decl., FEC Exh. 2, Dist. Ct. Dkt. 24-2, ¶

2, Defendant has identified $2,260,799.70 in funds bequeathed to

national political party committees since its database’s 1978 inception.

Id. table 3. Searching FEC’s database for testamentary bequests

produces underinclusive results. Id. ¶¶ 3, 4. For example, the FEC’s

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largest identified bequeathed political party donation, Martha Huges’

$250,000 gift to the Democratic Party, id. table 2, is eclipsed by Eleanor

Schwartz’s $574,332.33 bequest to the Republican Party, discovered in

this case. Id. ¶ 3. The Burrington bequest, which would rank second on

FEC’s table of all-time highest bequests to political parties, does not

appear in FEC’s search-generated top five list.

1

LNC continues to receive large testamentary bequests of which it

has had no prior notice. See, e.g., Dist. Ct. Dkt. Nos. 25-11, 25-12. And

the record shows at least one future bequest that would probably

exceed FEC’s campaign contribution limits. Redpath Decl., Dist. Ct.

Dkt. 25-15, ¶ 8 (William Redpath’s last will and testament bequeaths

LNC 40% of his estate).

Recent over-limit testamentary bequests also include (but are not

1

limited to): Lola Cameron, $200,000 to RNC, Clark Decl. at 5, table 2;

Gwendolyn Williams, $133,829 to DNC, id.; Joan Shepard, $80,000 to

RNC, id.; Michael Buckley, $200,000 to DNC, FEC Exh. 19, Dist. Ct.

Dkt. 24-3, at 19; Ron Gabriel, $200,000 to DNC, FEC Exh. 57, Dist. Ct.

Dkt. 24-5, at 86-87; Gladis Innerst, $267,595.41 to DNC, FEC Exh. 58,

Dist. Ct. Dkt. 24-5, at 90; Margaret Kalackowski, “over $216,000”

evenly split between DNC and New Jersey Democratic Party, FEC Exh.

59, Dist. Ct. Dkt. 24-5, at 93; Joseph P. Kramer, III, approximately

$194,000 to Democratic Party, FEC Exh. 60, Dist. Ct. Dkt. 24-5, at 96;

Harold Schooler, $250,000 to DNC, FEC Exh. 61, Dist. Ct. Dkt. 24-6, at

3-6; and Lakshmi Bulusu, $104,741.50 to DNC, FEC Exh. 62, Dist. Ct.

Dkt. 24-6, at 10-16.

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It does not matter that LNC cannot now point to a specific will that

would leave it over $32,800. “[T]he test is not whether there is in fact a

‘future relation’ that will be affected, but rather whether ‘resolution of

an otherwise moot case . . . h[as] a reasonable chance of affecting the

parties’ future relations.’” Honeywell, 628 F.3d at 577 (quotation

omitted) (alteration in original). With FEC estimating that “the

average soft-money donation made by estates to national political party

committees from bequeathed funds was $62,117.23,” Clark Decl., ¶ 11,

well over the current limit—and as LNC continues to receive

testamentary bequests—there exists more than a “reasonable chance,”

Honeywell, 628 F.3d at 577, a “reasonable expectation” and “a

demonstrated probability,” WRTL, 551 U.S. at 463, that this

controversy will recur.

Incredibly, FEC claims that LNC has received only three bequests,

and then immediately follows that statement by claiming that LNC is

unlikely to present another case of this kind because it “typically

receives donations with a median-size of only approximately $25.” FEC

Sugg. at 7 (quotation omitted). FEC should know much better than to

try to mislead the Court in this fashion. The issue here is bequests

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from people who no longer have any use for money, not regular

donations from living people. Indeed, before he left LNC $217,734,

Burrington had only given the party, exactly, $25. Kraus Decl., Dist.

Dkt. 25-14, ¶ 3. Between them, LNC’s other five-figure testators had

given only $100 in their lives. Id. ¶¶ 6, 7. Based on FEC’s data, Clark 2

Decl., table 4, the average sizes of bequests per party, inclusive of hard

and soft money, are nowhere near $25 or whatever amounts are

routinely raised from everyday living people:

Libertarian: $16,255.39

Republican: $10,531.93

Democratic: $18,824.06

Green: $20,303.84

By the same measure, this case is not “highly dependent upon a

series of facts unlikely to be duplicated in the future.” People for the

Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 424 (D.C. Cir.

2005). All that needs to occur for this case to be duplicated is for people

to keep remembering LNC in their wills, and die. 

FEC also claims that the LNC’s bequests came over the course of

2

the party’s 43 year history, but it is to be expected that the party would

receive fewer bequests in its early years. The three bequests in the

record amount all came between 2007 and 2010. And as discussed

below, FEC’s litigation conduct here just greenlighted LNC’s

solicitation of large bequests.

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And if FEC wanted to stop LNC from receiving large bequests, it

could have defended 2 U.S.C. § 441i(a)’s solicitation prohibition against

LNC’s challenge. Instead, “FEC denie[d] that this provision forbids

national political parties from soliciting a bequest that exceeds FECA’s

annual limits,” so long as the bequests were subjected to the

contribution limits upon receipt. Libertarian Nat’l Comm., Inc. v. FEC,

930 F. Supp. 2d 154, 168 (D.D.C. 2013). LNC is now free to solicit

additional large bequests. 

Of course, it might be within the realm of possibility that

some future bequest, unlike Burrington’s, would be made pursuant to a

hidden, illicit quid pro quo arrangement. But it would be baseless for

FEC to assert that the default condition of testamentary bequests is

illicit, such that a “clean” bequest like Burrington’s is unlikely to recur.

FEC has provided zero evidence that any of the numerous

testamentary bequests exceeding its contribution limits have

implicated corruption concerns. There is, after all, nothing unusual

about the fact that when people die, they leave money to organizations

that share and further their ideological objectives.

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Thus, once again, in suggesting mootness “[t]he FEC asks for too

much.” WRTL, 551 U.S. at 463. “Requiring repetition of every ‘legally

relevant’ characteristic of an as-applied challenge—down to the last

detail—would effectively overrule” the availability of mootness relief in

as-applied cases “by making this exception unavailable for virtually all

as-applied challenges. History repeats itself, but not at the level of

specificity demanded by the FEC.” Id.

Moreover, respectfully, FEC’s suggestion that the certified question

implicates nothing beyond Burrington’s bequest gives the District

Court too little credit. Implicit in FEC’s suggestion of mootness is the

assertion that Judge Wilkins would have toiled to certify an en banc

case knowing that his published opinion would be vacated, and the

3

case dismissed for mootness, within months of placement on this

Court’s docket. The record is otherwise.

The District Court detailed its awareness of exactly how much

money was left in the Burrington trust, and the frequency with which

payment must be made. See Certified Facts Nos. 35, 36, 39, 40. Indeed,

as FEC admits, “the Commission informed the district court that the

United States v. Munsingwear, Inc., 340 U.S. 36 (1950). 3

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LNC would be able to receive the entirety of the Burrington bequest in

2014,” FEC Sugg. at 6—in a motion to amend or reconsider the

judgment, no less—which the District Court denied. Libertarian Nat’l

Comm., Inc. v. FEC, 950 F. Supp. 2d 58 (D.D.C. 2013).

The District Court understood that future lawsuits would question

the application of campaign contribution limits to testamentary

bequests, and acknowledged that this Court’s guidance might be

necessary to at least prompt the FEC to reconsider its approach. To the

extent the District Court narrowed LNC’s proposed question, it sought

only to exclude differently-situated political parties, and bequests that

might implicate corruption concerns. See Libertarian Nat’l Comm., 930

F. Supp. 2d at 165 (“the relief sought would not apply solely to

themselves, but would extend to other entities not before this Court”);

id. at 166 (“LNC challenges FECA as unconstitutional as applied to all

bequests . . . . [b]ut bequests other than Burrington’s may very well

raise . . . anti-corruption concerns”). That still leaves at-issue the

universe of non-corrupt (meaning, in the absence of evidence of

misconduct, all) LNC bequests. 

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This much, Judge Wilkins made crystal clear at argument. Exploring

the value of narrowing the certified question to Burrington’s facts,

Judge Wilkins offered:

What would be wrong with me certifying that to the circuit and

granting summary judgment for the FEC with respect to everything

else? And if the circuit were to find that . . . even with respect to that

one bequest, that there’s no enforcement problem there, no First

Amendment violation, then it seems [that if] Mr. Burrington doesn’t

win, then nobody will ever win on a bequest.

But if they were to agree that that raised a First Amendment

issue, then it’s only precedent and only relief with respect to this one

bequest, but then at least we would know what the boundaries of the

First Amendment issue are, and then to the extent that the FEC

wanted to do some further fact finding and determine whether they

wanted to promulgate further rules as to bequests generally and

how those should be handled, and engage in some sort of rulemaking, et cetera, that could all go forward given the guidance from

the circuit, and in some future lawsuit we could determine whether

there needs to be any further court intervention with respect to

other bequests.

T., p. 64, l. 7-25. 

In response, FEC conceded that notwithstanding its opposition to

any sort of certification, narrowing the question to the Burrington facts

would have broader effect. “[O]f course if in Your Honor’s discretion, if

that is your position, that would be your action, I don’t know that

there’s anything wrong with that, despite the fact that we dispute that

that’s the right course of action.” T., p. 65, l. 4-7.

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Indeed, FEC did more than agree with the District Court’s

assessment of the impact a decision here might have. It urged that very

impact as a reason to reconsider the court’s judgment, claiming that

the ruling would invite a torrent of Section 437h litigation. The District

Court correctly dismissed that claim, as “such an argument ‘belong[s]

in a legislative hearing room, not a brief.’” Libertarian Nat’l Comm.,

950 F. Supp. 2d at 63 (quoting Wagner v. FEC, 717 F.3d 1007, 1016

(D.C. Cir. 2013)).

FEC erred in predicting numerous future disputes. Only one decision

may be needed to guide regulation of LNC’s next large bequest.

II. THIS DISPUTE WILL LIKELY EVADE REVIEW EACH TIME IT REPEATS.

“As to the ‘evading review’ requirement . . . the Supreme Court has

meant evading Supreme Court review.” Christian Knights of Ku Klux

Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 369

(D.C. Cir. 1992) (citation omitted).

“The Contribution Limit for 2014 is $32,400 . . . .” FEC Sugg. at 4

(footnote omitted). “[T]he average soft-money donation made by estates

to national political party committees from bequeathed funds was

$62,117.23.” Clark Decl., ¶ 11. Dividing the latter sum by the former

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would require future testamentary bequest litigation to proceed from

initial pleadings, to discovery, to wrangling about district court

certification, to en banc hearing, Supreme Court opinion, and mandate,

in under two years. “[A] presumption applies that orders of less than

two years’ duration ordinarily evade review.” Honeywell, 628 F.3d at

576 (quotation omitted).

The typical case of this kind would thus evade review, and there the

matter should end. But seeking to take advantage of Burrington’s

generosity, FEC argues that this case had more fuel owing to the size of

Burrington’s bequest. Presumably, LNC should have endeavored to

wrap up this litigation, from District to Supreme Court, within seven

years (dividing the $217,734 bequest by the $30,800 contribution limit

applicable at the case’s outset). Claiming that LNC should have

brought the case earlier, FEC argues that LNC “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.’” FEC Sugg. at 7 (quoting Armstrong v. FAA, 515 F.3d

1294, 1296 (D.C. Cir. 2008)).

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The argument fails for two reasons. First, Armstrong does not

extend to normal situations where time simply runs out on a

conscientious plaintiff. If it did, Armstrong would largely swallow the

capable-of-repetition exception, for in nearly every case that becomes

moot, it is possible to hypothesize that had the plaintiff only filed

earlier, things might have broken differently. Instead, Armstrong

addresses plaintiffs who delay the “disposition” of their cases by failing

to take reasonably available avenues for resolving existing matters. 

As this Court explained, “[i]t is clear the principle of Armstrong

requires a plaintiff to make a full attempt to prevent his case from

becoming moot.” Newdow v. Roberts, 603 F.3d 1002, 1009 (D.C. Cir.

2010). In other words, “[t]he capable-of-repetition doctrine is not meant

to save mooted cases that may have remained live but for the neglect of

the plaintiff.” Id. In Newdow, the plaintiff failed to appeal the denial of

a preliminary injunction motion. In Armstrong, the plaintiff missed his

deadline to petition for review, and subsequently failed to seek a stay of

the administrative proceedings.

These cases do not create a vague laches-type concept whereby

plaintiffs must predict how long major, complex constitutional litigation

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must last, and hope to squeeze through to the ultimate end before the

monetary sand in the contribution limit hourglass runs out, with all the

attendant squabbles regarding who, if anyone, was responsible for

what portion of an alleged delay. 

And for good reason. Because were FEC correct, the Court would

have to authoritatively predict that: (1) a given testamentary bequest

case would have taken no more than X days to litigate from filing to

Supreme Court conclusion; (2) plaintiff should have investigated,

identified and retained counsel, and brought suit in Y days; (3) the

money, divided by the (ever-changing) indexed contribution limit,

would have sustained Z days of litigation, and (4) X+Y cannot exceed Z.

Of these, the first variable is most problematic. It is regrettably the

case that plaintiffs—even plaintiffs claiming an on-going deprivation of

a fundamental, enumerated right—cannot expect district court

decision, let alone Supreme Court resolution in their case, within seven

(or any number of) years.

One of undersigned counsel represents District residents who

brought suit in the court below on August 6, 2009, challenging the

District of Columbia’s total ban on the carrying of handguns for self17

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defense. Palmer v. District of Columbia, D.D.C. No. 09-1482-FJS. The

case plainly comes within 28 U.S.C. § 1657(a)’s designation for

expedited disposition, as it alleges a serious violation of a fundamental

constitutional right, indeed, a right that the Supreme Court held

secures an interest in self-defense. The essential facts are undisputed,

and the parties have had cross-motions for summary judgment

complete and ready for ruling since October 6, 2009.

The case remains undecided, while various later-filed cases

throughout the country raising similar issues have already reached the

Supreme Court. In July, 2011, Chief Justice Roberts assigned a judge

from another district to assist with the delays in Palmer and other

cases, but still the plaintiffs wait. When a consent motion to expedite

the proceedings was apparently ignored, plaintiffs turned to this Court,

as “[t]he peremptory writ of mandamus has traditionally been used in

the federal courts . . . ‘to compel [the district court] to exercise its

authority when it is its duty to do so.” In re United States, 598 F.2d

233, 236 (D.C. Cir. 1979) (quotation omitted); see, e.g., Will v. Calvert

Fire Ins. Co., 437 U.S. 655, 661-62 (1978).

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This Court denied relief, stating that “[p]etitioners have not shown

that the district court’s delay in ruling on the pending cross-motions for

summary judgment is so egregious or unreasonable as to warrant the

extraordinary remedy of mandamus at this time.” In re Palmer, No. 13-

5317 (D.C. Cir. Dec. 16, 2013) (citations omitted).4

Had LNC filed this case four years earlier, as the FEC would

apparently prefer, Burrington’s money might have sustained a run

clear to the Supreme Court. Or, perhaps LNC might still be stuck in

the District Court. No one can say for certain. And were LNC, like the

long-suffering Palmer plaintiffs, in its fifth year of waiting for

resolution below, there would be no guarantee that it could conclude

the Supreme Court phase within the remaining two years, or obtain

this Court’s assistance in moving the matter faster.

In any event, since LNC has not failed to take any step to prevent

mootness, FEC’s unfounded and untrue assumption that all important

constitutional cases must perforce be resolved by the District Court

within four years is irrelevant. The question is whether the dispute is

Per D.C. Cir. R. 32.1(b)(3), this unpublished disposition is 4

attached in an addendum.

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likely to evade review when it recurs. Since the average soft-money

bequest, per FEC’s data, would provide for less than two years of

litigation given the current contribution limits, the dispute would

almost assuredly continue to evade review.

CONCLUSION

FEC’s suggestion of mootness is unpersuasive. The case should be

set for briefing and argument.

 Dated: February 18, 2014 Respectfully submitted,

/s/ Alan Gura /s/ Allen Dickerson 

 Alan Gura Allen Dickerson 

 Gura & Possessky, PLLC Center for Competitive Politics

 105 Oronoco St., Suite 305 124 S. West St., Suite 201

 Alexandria, VA 22314 Alexandria, VA 22314

 703.835.9085/F: 703.997.7665 703.894.6800/F: 703.894.6811

 alan@gurapossessky.com adickerson@campaignfreedom.org

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CERTIFICATE OF SERVICE

On this, the 18 day of February, 2014, I served a copy of the

th

foregoing Opposition to Suggestion of Mootness upon the following by

electronic service, as the document was filed electronically, generating

a Notice of Electronic Filing:

Kevin Hancock

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

I declare under penalty of perjury that the foregoing is true and

correct.

This the 18 day of February, 2014.

th

/s/ Alan Gura 

Alan Gura

Attorney for Appellant

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Addendum

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 13-5317 September Term, 2013

1:09-cv-01482-FJS

Filed On: December 16, 2013

In re: Tom G. Palmer, et al.,

Petitioners

BEFORE: Henderson, Brown, and Srinivasan, Circuit Judges

O R D E R

Upon consideration of the petition for a writ of mandamus, it is

ORDERED that the petition for a writ of mandamus be denied without prejudice

to renewal. Petitioners have not shown that the district court’s delay in ruling on the

pending cross-motions for summary judgment is so egregious or unreasonable as to

warrant the extraordinary remedy of mandamus at this time. See Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); cf.

Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 79-81 (D.C. Cir.

1984). We are confident that the district court will act on the motions as promptly as its

docket permits.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to transmit a copy of this order to the district court.

Per Curiam

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