UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________ 

 ) 

LIBERTARIAN NATIONAL ) 

COMMITTEE, INC., ) 

 ) No. 13-5088 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION ) REPLY IN SUPPORT OF 

COMMISSION, ) SUGGESTION OF MOOTNESS 

 ) 

 Defendant. ) 

_________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN 

SUPPORT OF ITS SUGGESTION OF MOOTNESS 

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

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Holly Baker 

Kevin P. Hancock 

Attorneys

February 28, 2014 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 1 of 14
1 

Plaintiff Libertarian National Committee, Inc. (“LNC”) confirms in its 

opposition brief that it received the remaining amount of the Raymond Groves 

Burrington bequest “[w]eeks ago.” (LNC’s Opp’n to FEC’s Suggestion of 

Mootness (“LNC Opp’n”) at 2 (Doc. No. 1480289).) Since the LNC is no longer 

suffering an alleged injury that can be redressed by a court ruling, the LNC’s asapplied challenge to the Federal Election Campaign Act’s (“FECA”) limit on that 

bequest, see 2 U.S.C. § 441a(a)(1)(B) (“Contribution Limit” or “Limit”), is moot. 

(FEC Suggestion of Mootness (“FEC Sugg.”) at 3-6 (Doc. No. 1478015).) 

The LNC has failed to show that this matter qualifies for the “narrow 

exception” to mootness for cases that are both capable of repetition and evading 

review. Bois v. Marsh, 801 F.2d 462, 466 (D.C. Cir. 1986). This matter does not 

evade review for two independent reasons. First, the general validity of the 

Contribution Limit as applied to future bequests to national party committees is 

now under review by a panel of this Court in matter number 13-5094; the panel 

recently upheld the Limit in a per curiam order. Second, the LNC had seven years 

to fully litigate this matter, while the general rule in this Circuit is that challenged 

actions lasting just two years or longer do not evade review. The LNC 

nevertheless ran out of time due to its own delay — it did not file this suit until 

nearly four years after it could have. This matter thus does not evade review. 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 2 of 14
2 

The LNC also has not shown that this matter is capable of repetition. It is an 

exceedingly rare event for the LNC to receive a bequest above the Contribution 

Limit — the LNC has received just one in 43 years — so there is no reasonable 

expectation that the LNC will receive another, let alone one that shares the material 

features of the Burrington bequest, as it must for this matter to repeat. 

Because this matter is not capable of repetition yet evading review, the LNC 

resorts to arguing in effect about the applicability of that mootness exception to a 

dispute about the general constitutionality of limiting bequests. The LNC relies 

heavily on data showing that the Democratic and Republican parties receive 

bequests in excess of the Contribution Limit with relative frequency. Perhaps such 

data would have been relevant to matter number 13-5094 (though no one argued 

that was moot), but it is irrelevant here since all that is at issue is the bequest the 

LNC received from Burrington. Since that scenario is not capable of repetition yet 

evading review, this matter is moot and the Court lacks jurisdiction. 

ANALYSIS 

A. This Matter Does Not Evade Review Because the Contribution 

Limit’s Validity as Applied to Bequests Other Than Burrington’s 

Is Receiving Review 

The LNC cannot demonstrate that this case evades review because this Court 

is currently reviewing the Contribution Limit’s validity as applied to future 

bequests to all national party committees in matter number 13-5094. In contrast, 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 3 of 14
3 

only the Burrington bequest is at issue in this matter. The LNC claims otherwise 

(LNC Opp’n at 1, 12), but it overlooks the plain language of the district court’s 

opinion. The district court declined to certify the LNC’s broad proposed question 

of law challenging the Contribution Limit “as applied to all bequests to all national 

political parties.” LNC v. FEC, 930 F. Supp. 2d 154, 166 (D.D.C. 2013) (emphasis 

in original slip op.). The court then narrowed that broad question to the narrow 

question of whether imposing the Limit “against the bequest of Raymond Groves 

Burrington violate[s] the First Amendment rights of the [LNC]” and certified that 

question to this Court. Id. at 171. The district court divided the LNC’s case this 

way because the evidence showed that “bequests other than Burrington’s may very 

well raise the anti-corruption concerns” that the Supreme Court has held justify 

limiting contributions. Id. at 166 (emphasis added). The LNC appealed, and three 

weeks ago in matter number 13-5094, this Court summarily affirmed the district 

court’s ruling that the non-certified portion of the LNC’s original broad question 

— the validity of the Contribution Limit as applied to all bequests to all national 

political parties other than Burrington’s bequest — was frivolous. (Order at 1, No. 

13-5094 (D.C. Cir. Feb. 7, 2014) (Doc. No. 1478819).) 

Apparently unable to find support in the district court’s published opinion, 

the LNC distorts a portion of an oral argument transcript addressing the district 

court’s discretion to amend the LNC’s proposed question. (LNC Opp’n at 13.) At 

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oral argument, Federal Election Commission (“FEC”) counsel merely agreed “that 

amending the [proposed certified] question was in the Court’s discretion,” as the 

district court itself explained. LNC, 930 F. Supp. 2d at 168. Contrary to the 

LNC’s claim, the FEC did not state that the certified question applied to bequests 

other than Burrington’s, and in any event, such a statement could not change the 

court’s opinion. The LNC overlooks a second opinion by the district court, which 

reiterated that its “holding in LNC [was] that applying contribution limits does not 

violate the First Amendment with respect to bequests generally.” (Mem. Op. at 2, 

No. 11-562 (D.D.C. June 17, 2013) (Doc. No. 59).)1

 

Finally, contrary to the LNC’s claims, the district court’s March 2013 

decision to certify this matter says nothing about whether the matter became moot 

in 2014. (LNC Opp’n at 4-5, 11-12.) Because little of the Burrington bequest 

remained undistributed, the FEC pointed out this matter may have been factually 

too insubstantial to certify to this Court sitting en banc (see Reply Mem. in Supp. 

of FEC Mot. to Alter or Amend the J. at 2, No. 11-562 (D.D.C. May 9, 2013) 

(Doc. No. 54)), but did not argue that this case was moot at that time (because it 

 

1

 The LNC points out (LNC Opp’n Br. at 14) that the FEC has argued that the 

district court’s narrowed question risked inviting others to seek individual 

exemptions from FECA’s contribution limits (see Mem. in Supp. of FEC Mot. to 

Alter or Amend the J. at 12-13, No. 11-562 (D.D.C. Apr. 15, 2013) (Doc. No. 48)). 

The FEC did not argue, however, that such claims would have merit. (Id.) 

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5 

was not). So the district court had no occasion to address mootness, let alone 

whether the case was capable of repetition yet evading review. 

B. This Matter Does Not Evade Review Because Seven Years Was 

Enough Time to Fully Litigate This Case and the LNC Delayed Its 

Disposition by Waiting Four Years to File Suit 

The LNC also cannot show that this matter evades review because the 

Limit’s application to the Burrington bequest was not “too short to be fully 

litigated prior to cessation or expiration.” Honeywell Int’l, Inc. v. NRC, 628 F.3d 

568, 576 (D.C. Cir. 2010). The LNC had seven years to fully litigate this matter 

(FEC Sugg. at 2, 5, 7), and in the D.C. Circuit, “[a]s a general rule, two years is 

enough time for a dispute to be litigated,” Fund For Animals, Inc. v. Hogan, 428 

F.3d 1059, 1064 (D.C. Cir. 2005) (emphasis added) (challenged actions lasting 

“somewhat more than two years” and “at least three years” did not evade review). 

Even if seven years were insufficient time to fully litigate this case, the LNC 

still could not claim that this matter evades review because the LNC delayed filing 

this suit nearly four years. (FEC Sugg. at 7.) Thus, it is the LNC’s “lassitude that 

allowed [t]his case to become moot,” and the LNC “cannot credibly claim [t]his 

case ‘evades review’ when [the LNC itself] has delayed its disposition.” 

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

The LNC does not dispute that it could have filed earlier, nor does it give 

any reason for its delay; instead, it incorrectly insists that under Armstrong, a 

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6 

litigant can be faulted only for delay of an “existing matter[],” not delay in 

initiating a matter. (LNC Opp’n at 16.) In Armstrong itself, however, this Court 

held just the opposite and found that a case did not evade review because the 

plaintiff delayed (just 79 days) in filing its federal lawsuit. See Armstrong, 515 

F.3d at 1296-97 (plaintiff delayed filing a petition for review of an agency order); 

see also Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 926 F. Supp. 2d 71, 96-

97 (D.D.C. 2013) (following Armstrong; holding that case did not evade review 

due in part to plaintiff’s “delay filing its complaint”). Indeed, if delay in filing suit 

did not prevent a finding that a case evades review, any party could ensure that its 

potentially moot case would evade review by waiting as long as possible to file.2

 

Because this matter would not evade review, the LNC resorts to arguing that 

dissimilar cases might. First, the LNC complains at length about the pace of the 

pending Palmer litigation to make the unexceptional point that district court 

litigation can last five years. (LNC Opp’n at 17-19.) Palmer has nothing to do 

with this matter, however, and it is always possible to point to examples of 

unusually lengthy litigation. This case was before the district court for 27 months, 

 

2

 Holding a plaintiff’s delay in filing suit against that plaintiff does not 

threaten to “swallow the capable-of-repetition exception,” as the LNC contends 

(LNC Opp’n at 16), since it not always “possible to hypothesize” (id.) that a 

plaintiff could have filed earlier — a claim must first be ripe to be justiciable. 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 7 of 14
7 

not five years, and yet the LNC speculates that had it filed suit in 2007, it “might 

still be stuck in the District Court.” (Id. at 19.) The facts are to the contrary. 

Second, the LNC in effect argues that this matter would evade review 

because a dispute about bequests generally — i.e., those at issue in matter number 

13-5094 — would evade review. The LNC asserts that a typical future bequest to 

the LNC would be subject to the Contribution Limit for about two years by 

pointing to FEC data showing that the average-sized bequest made to national 

political parties before 2003 was $62,117.23. (LNC Opp’n at 14-15 (citing Clark 

Decl. (FEC Exh. 2) at ¶¶ 10-11, No. 11-562 (D.D.C. May 4, 2012) (Doc. No. 24-

2)).) This figure, however, does not include a single penny bequeathed to the 

LNC. See LNC, 930 F. Supp. 2d at 182 (App. ¶ 69) (LNC received its only three 

bequests between 2007 and 2010). Instead, the $62,117.23 average reflects 

bequests made to the Democratic and Republican parties, which are far larger than 

the LNC and which receive large bequests with relative frequency, as the LNC 

points out.3

 (LNC Opp’n at 6-7 & n.1.) Thus, this figure does not show that the 

LNC will receive a bequest of any particular size in the future. See Nat’l Ass’n of 

Home Builders v. U.S. Army Corps of Eng’rs, 264 F. App’x 10, 12 (D.C. Cir. 

2008) (per curiam) (distinguishable cases fail to show a case evades review). 

 

3

 The LNC has never elected a federal officeholder and has only about 14,500 

dues-paying members and 270,000 registered voters. (First Am. Compl. 

¶¶ 4, 13, No. 11-562 (D.D.C. May 27, 2011) (Doc. No. 13).) 

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C. Even if This Matter Could Evade Review, It Is Not Capable of 

Repetition 

To be capable of repetition, the LNC must show that there is a “reasonable 

expectation that the same complaining party [will] be subject to the same action 

again.” Honeywell Int’l, Inc., 628 F.3d at 576 (alteration in original; internal 

quotation marks omitted). The LNC cannot make this showing for two reasons. 

First, it is unreasonable to expect that the LNC will receive an above-limit 

bequest again. The LNC’s opposition confirms that Burrington’s bequest is the 

only above-limit bequest the LNC has received in its 43-year history and that it has 

received just two other bequests ever, both of which were below the Limit. (LNC 

Opp’n at 7, 9 n.2.) The LNC is a minor political party with no federal 

officeholders.4

 And the LNC concedes that it “cannot now point to a specific will 

that will leave it” a bequest in excess of the Contribution Limit in the future.5

 (Id.

at 8.) 

Given these facts, the LNC again resorts to relying upon data showing that 

the Democratic National Committee (“DNC”) and Republican National Committee 

 

4

 Contrary to the LNC’s strenuous claims (LNC Opp’n at 8), the fact that the 

LNC typically receives donations of only approximately $25 does illustrate its 

small size (FEC Sugg. at 7). 

5

 Despite this concession, the LNC claims that it “continues to receive large 

testamentary bequests of which it has had no prior notice.” (LNC Opp’n at 7.) But 

the LNC’s record citation makes clear that it is merely referring to the two belowlimit bequests it received years ago. (Id. (citing Doc. Nos. 25-11, 25-12 (FEC 

Exhs. I-J, No. 11-562 (D.D.C. May 4, 2012))).) 

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9 

(“RNC”) have received above-limit bequests with relative frequency. (LNC Opp’n 

at 6-7 & n.1.) As the LNC acknowledges, however, to show that this matter is 

capable of repetition, there must be a reasonable expectation that “‘the same 

complaining party’” (i.e., the LNC) will be subject to the same action again. (Id. at 

3-4 (quoting Honeywell, 628 F.3d at 576).) So evidence relating to the DNC and 

RNC has no relevance here. 

The LNC gives no valid reason to believe it will be more likely to receive 

above-limit bequests going forward. The LNC repeatedly and incorrectly contends 

that the FEC has agreed “not to enforce” a FECA solicitation prohibition (LNC 

Opp’n at 2; see also id. at 4, 9 n.2, 10); in reality, that provision has never

prevented the LNC from soliciting large bequests so long as it did not accept 

contributions from such bequests in amounts exceeding the Limit. In any event, 

there is no evidence that the LNC’s newly-discovered ability to solicit large 

bequests has made a difference: The FEC first corrected the LNC’s confusion 

about the solicitation provision nearly three years ago in June 2011 (see Answer 

¶¶ 2, 25, No. 11-562 (D.D.C. June 13, 2011) (Doc. No. 15)), but the LNC still can 

identify no will that would result in an above-limit bequest (LNC Opp’n at 8).6

 

 

6

 The LNC notes that the will of William Redpath, its former national 

chairman and treasurer, currently provides for a bequest of 40 percent of his estate 

to the LNC. (LNC Opp’n at 7.) But the LNC claims only that this bequest will 

“probably” be in excess of the Contribution Limit, and with good reason. Redpath 

testified that he could “change [his] will and revoke [his] intent to bequeath money 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 10 of 14
10 

Second, the LNC has not shown, as it must, that it is reasonable to expect the 

factual circumstances of the Burrington bequest to repeat even were it to receive 

another above-limit bequest. The district court bifurcated this matter from number 

13-5094 because of particular, material aspects of the Burrington bequest: 

Burrington had just one interaction with the LNC while alive (a $25 donation) and 

the LNC was unaware that Burrington planned to leave the bequest.7

 LNC, 930 F. 

Supp. 2d at 170. Assuming arguendo that the district court correctly drew this 

distinction, the LNC must show that materially similar bequests will be made to it 

in the future for this matter — in contrast with other bequests at issue in matter 13-

5094 — to recur. The LNC, however, does not even contend that it will likely 

receive future bequests that are materially similar to the Burrington bequest. 

CONCLUSION 

For the foregoing reasons, this matter is moot and the Court lacks 

jurisdiction. 

 

to LNC at any time,” and that he would do so if he became displeased with the 

Libertarian Party’s platform. (Redpath Decl. ¶ 10, No. 11-562 (D.D.C. May 4, 

2012) (Doc. No. 25-15).) Even if the bequest occurred, the value of Redpath’s 

assets is not in the record, and in any event, estates can only pay bequests with 

assets that remain (if any) after satisfying creditors. As the LNC has 

acknowledged, “[t]here is simply no way for political parties to ensure that a 

promised or hoped-for bequest comes through,” and “[p]robate courts routinely 

disappoint putative heirs.” (Mem. in Supp’t of LNC’s Mot. to Certify Facts and 

Questions at 22, No. 11-562 (D.D.C. May 4, 2012) (Doc. No. 25-1).) 

7

 In this regard, the district court did not simply cite a lack of evidence of 

“misconduct,” as the LNC suggests. (LNC Opp’n at 12.) 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 11 of 14
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

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

February 28, 2014 (202) 694-1650 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 12 of 14
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 28, 2014, I electronically filed defendant 

Federal Election Commission’s Reply in Support of Its 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 #1482071 Filed: 02/28/2014 Page 13 of 14
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 

USCA Case #13-5088 Document #1482071 Filed: 02/28/2014 Page 14 of 14