ORAL ARGUMENT SCHEDULED FOR MARCH 30, 2015

No. 14-5281

_______________________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

LAURA HOLMES, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

_______________________________________________

Certified from the United States District Court for 

the District of Columbia pursuant to 52 U.S.C. § 30110

_______________________________________________

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN

SUPPORT OF ITS MOTION FOR REMAND

_______________________________________________

Lisa J. Stevenson 

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

Erin Chlopak

Acting Assistant General Counsel

Steve N. Hajjar

Attorney

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463 

(202) 694-1650

January 22, 2015

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The Federal Election Commission (“FEC” or “Commission”) demonstrated 

in its remand motion that the district court failed to perform its mandatory duties 

under the Federal Election Campaign Act’s special judicial review provision, 52 

U.S.C. § 30110. Specifically, the court below erred by certifying constitutional 

questions to this Court without first determining whether such questions are 

frivolous or settled. It further erred by depriving the Commission of any

opportunity to weigh in on that determination or to participate in the development 

of the factual record to accompany any properly certified questions.

Plaintiffs have responded to the Commission’s demonstration by 

exaggerating the relief sought in the remand motion, misconstruing binding 

precedent regarding the district court’s duty under section 30110, and declaring 

their claims to be “novel.” (Opp’n at 9.) Plaintiffs’ arguments regarding the 

merits of certification here are misplaced and, in any event, ignore what the district 

court explicitly recognized — the Supreme Court’s holding “long ago” that the 

per-election contribution limits that plaintiffs challenge are constitutional because 

they “prevent corruption and the appearance of corruption by allowing candidates 

to compete fairly in each stage of the political process.” (Joint Appendix (“J.A.”) 

48.) None of plaintiffs’ arguments refutes the Commission’s demonstration of the 

error in the district court’s certification order. The Commission’s motion should 

be granted. 

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I. THE DISTRICT COURT ERRED IN FAILING TO DETERMINE 

WHETHER PLAINTIFFS’ CHALLENGE RAISES A FRIVOLOUS 

OR SETTLED LEGAL QUESTION

Plaintiffs’ opening argument (Opp’n at 2-6) that section 30110’s use of the 

word “immediately” relieves the district court of its mandatory pre-certification 

functions defies over thirty years of this Court’s — and the Supreme Court’s —

explicit holdings interpreting that provision. As the Commission explained in its 

remand motion, the Supreme Court and this Court have clearly and explicitly held 

that the statute’s use of the term “immediately” does not require automatic 

certification of section 30110 cases that are frivolous, raise settled legal questions, 

or require a fully developed record. FEC Mot. at 6-7, 11-12, 18; Bread Political 

Action Comm. v. FEC, 455 U.S. 577, 580 (1982); Cal. Med. Ass’n v. FEC, 453 

U.S. 182, 192-94 nn. 13-14 (1981) (“Cal. Med.”); Wagner v. FEC, 717 F.3d 1007, 

1009 (D.C. Cir. 2013) (per curiam); Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 

1975) (en banc) (per curiam). Notably, this Court’s remand in Buckley occurred 

over Judge Bazelon’s dissent, which advanced the same argument plaintiffs now 

make in emphasizing section 30110’s “use of the word ‘immediately.’” 519 F.2d 

at 821 (Bazelon, J. dissenting); see also Int’l Ass’n of Machinists & Aerospace 

Workers v. FEC, 678 F.2d 1092, 1097 (D.C. Cir. 1982) (en banc) (per curiam)

(reiterating that “immediately” does not preclude a district court’s identification of 

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constitutional questions or preparation of a full factual record, because “it is 

undesirable to decide a constitutional issue abstracted from its factual context”).

The Supreme Court and this Court have both explained that district courts 

play an important gatekeeping role in cases brought under section 30110. In Cal. 

Med., the Supreme Court explained that district courts should only certify 

questions that are “neither insubstantial nor settled.” 453 U.S. at 192 n.14. And in 

Wagner, this Court explained that district courts should only certify “non-frivolous 

constitutional questions” to the en banc court of appeals. 717 F.3d at 1009.

Plaintiffs do not — and cannot — refute the district court’s obligation to 

make this threshold determination. Instead, plaintiffs focus (Opp’n at 4-6) on other 

language in the Cal. Med. opinion that in no way undermines the Court’s 

interpretation of the certification mandate in section 30110. Plaintiffs also 

misconstrue this Court’s opinion in Wagner. Wagner did not, as plaintiffs 

repeatedly argue (Opp’n at 10, 12, 14, 16), deprive the district courts in section 

30110 cases of any ability to consider the merits. In Wagner, three individuals 

challenged a FECA provision without invoking section 30110. A panel of this 

Court concluded that the text and legislative purpose of section 30110 

demonstrated that “the parties therein enumerated may bring actions challenging 

FECA’s constitutionality only under that section.” 717 F.3d at 1016. Most 

importantly here, the Wagner panel embraced the Supreme Court’s interpretation 

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of the district court’s threshold obligation under section 30110 to “determine 

whether the constitutional challenges are frivolous or involve settled legal 

questions.” Id. at 1009 (citing, inter alia, Cal. Med., 453 U.S. at 192 n.14).

Plaintiffs also fail to refute the Commission’s demonstration that the district 

court failed to engage in that threshold analysis. Instead, plaintiffs posit that the 

court implicitly determined that their claims did not pose frivolous or settled 

questions of law “given that it certified questions to this Court.” (Opp’n at 10.) 

But the district court’s certification decision does not support plaintiffs’ 

assumption that the court must have made such a determination sub silentio. The 

certification order on its face reflects the district court’s uncertainty about whether 

it should determine if the “questions presented are ‘frivolous’ or ‘settled principles 

of law’” and its consequential decision to certify them without making that 

determination “[i]n an abundance of caution.” (J.A. 58.) Had the court actually 

concluded that plaintiffs’ claims raise unsettled legal questions, its certification 

decision would not have reflected the abundantly cautious approach the court said 

it was undertaking. 

Plaintiffs’ assumption is also inconsistent with the district court’s explicit 

holding, in denying plaintiffs’ preliminary-injunction motion, that plaintiffs’ 

claims are untenable because they “challenge the analysis and conclusion of the 

Supreme Court in Buckley v. Valeo and its progeny.” (J.A. 41; see J.A. 48 (“[T]he 

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Supreme Court has long ago concluded that restrictions on the amount of money 

one can contribute per election prevent corruption and the appearance of corruption 

by allowing candidates to compete fairly in each stage of the political process.”).)

Plaintiffs’ extended substantive arguments about the purported novelty of 

their constitutional claims (Opp’n at 6-9) are misplaced; such arguments are 

irrelevant to the question whether the district court made that threshold 

determination. In any event, and as explained above, the district court clearly 

disagreed with plaintiffs’ own assessment of the novelty of their constitutional 

claims. Neither the record in this case nor logic support plaintiffs’ hypothesis that 

the district court both explicitly concluded that plaintiffs’ claims contradict 

“Buckley v. Valeo and its progeny,” and silently determined that the same claims 

raise unsettled legal questions. 

II. THE FEC IS ENTITLED TO DUE PROCESS IN DISTRICT COURT 

PROCEEDINGS IN SECTION 30110 CASES AND ITS DUE 

PROCESS RIGHTS WERE VIOLATED HERE

“The fundamental requirement of due process is the opportunity to be heard 

at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 

319, 333 (1976) (internal quotation marks omitted). The district court here, 

however, deprived the Commission of any opportunity to present its views on 

whether any constitutional questions should be certified to this Court, what any 

such questions should be, and what facts should be included in the record that 

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accompanies any such questions to this Court for en banc review. Plaintiffs, by 

contrast, were ordered by the district court to present their views on the 

certification question. (J.A. 56 (denying preliminary injunction and ordering 

plaintiffs to show cause why the court should not issue a final order declining to 

certify constitutional questions to the Court of Appeals for en banc consideration).) 

Plaintiffs do not dispute that the Commission was deprived of the same 

opportunity. Instead, they assert, irrelevantly, the lack of any due process right “to 

avoid certification” and suggest that due process rights were not implicated in the 

proceedings below because the district court’s certification determination did not 

itself “‘resolve any lawsuit.’” (Opp’n at 19.) But due process rights are not so 

limited. The district court’s certification order resulted in an en banc appellate 

proceeding to decide purported questions of constitutional law based on a factual 

record established without any input from the Commission. Surely the government 

has a right to present its views to the district court before it makes such a 

determination against the government’s interests. If plaintiffs’ cramped view of 

due process rights were correct, the FEC would have no due process rights

whatsoever in district court proceedings in section 30110 cases. Plaintiffs have 

failed to provide any support for such a conclusion and, contrary to their 

suggestion (Opp’n at 19), the Commission’s ability to defend against plaintiffs’ 

challenges in this Court does not cure the deprivation of the FEC’s due process 

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rights in the court below.

III. THE DISTRICT COURT ERRED IN FAILING TO ALLOW ANY 

INPUT FROM THE COMMISSION IN DEVELOPING THE

FACTUAL RECORD

As explained above and in the Commission’s remand motion (Mot. at 17-

18), this Court has recognized the “manifest” need for a “full-bodied” factual 

record in cases challenging the constitutionality of federal statutes. Martin Tractor 

Co. v. FEC, 627 F.2d 375, 380 (D.C. Cir. 1980) (section 30110 case). Indeed, in 

section 30110 cases in particular, this Court has explained that district courts “must 

[first] develop a record for appellate review by making findings of fact.” Wagner, 

717 F.3d at 1009. And as previous section 30110 cases demonstrate, and as due 

process requires, see supra pp. 5-6, district courts must allow the parties to 

participate in developing the factual record, including by conducting discovery and 

submitting proposed findings of fact. (See FEC Mot. at 19 (collecting cases).) The 

district court’s immediate certification here precluded the Commission from 

conducting even limited discovery or submitting any proposed findings of fact that 

could help this Court review the constitutionality of the challenged provisions, to 

the extent that such review is even warranted.

Plaintiffs do not dispute that district courts in other section 30110 cases

frequently have permitted the FEC to participate in the development of the factual 

record by allowing discovery and submissions of proposed findings of facts. They 

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simply (and erroneously) suggest (Opp’n at 16) that the district court had the 

discretion to deprive the FEC of such an opportunity and that the Commission 

lacked any due process right to participate in the fact-finding process. 

Plaintiffs’ subjective assessment that the factual record certified here “is 

sufficient” (Opp’n at 12) fails to refute the Commission’s demonstration that it was 

deprived of any opportunity to participate in the record-development process. 

Likewise flawed is their suggestion (Opp’n at 14-15) that the Commission should 

have anticipatorily presented all of its arguments regarding certification and the 

factual record in its preliminary-injunction opposition, i.e. the only brief the 

Commission was permitted to submit during the proceedings below. Plaintiffs 

themselves undermine that suggestion when they argue (Opp’n at 11) that the 

district court’s preliminary-injunction determination “has no bearing on” the 

separate determinations required under section 30110. And plaintiffs simply 

ignore that the district court ordered plaintiffs, but not the FEC, to submit a brief

specifically on the certification question and then quickly issued its certification 

decision without providing the FEC any opportunity to respond. (See J.A. 3-4.)

Plaintiffs purport to respond (Opp’n at 12) to objections that the 

Commission “had no opportunity to conduct trial-length discovery” or to 

“extensively brief proposed findings of fact” but the Commission has never made

any such objections. Nor has Commission indicated any desire for “multiple years 

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of extensive discovery.” (Opp’n at 12-13, 16.) Likewise inaccurate is plaintiffs’ 

suggestion that the Commission seeks “further” or “additional discovery and 

briefing.” (Id. at 17.) The FEC was not permitted to conduct any discovery or to 

submit a single brief on the issues of certification and the factual record. 

Plaintiffs offer no support for their suggestion that the additional time 

required for even limited discovery and factual briefing justify depriving the FEC 

any opportunity to weigh in on the factual record here. They emphasize that a 

panel of this Court in Wagner instructed the district court to make appropriate 

findings of fact and certify constitutional questions within five days of its remand 

order, but ignore that extensive district court proceedings, including discovery, had 

already occurred in earlier stages of that case. 717 F.3d at 1009.

Plaintiffs’ First Amendment concerns (Opp’n at 18) are also unavailing. As 

the Commission previously explained, the plaintiffs in Buckley and Khachaturian

v. FEC, 980 F.2d 330 (5th Cir. 1992), also brought First Amendment claims, yet 

this Court and the Fifth Circuit remanded those cases. (See FEC Mot. at 11, 12, 

18, 19.) More fundamentally, plaintiffs’ argument assumes that which the district 

court concluded plaintiffs could not likely establish (see J.A. 41) — that the perelection limit caused their alleged First Amendment injuries. Indeed, the district 

court concluded that any injury plaintiffs may have suffered was self-inflicted: 

“That Plaintiffs elected not to exercise their right of free expression before the 

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primary election does not render the law unconstitutional as applied.” (J.A. 47

(emphasis added).) 

Finally, plaintiffs’ own satisfaction with the “sufficiency” of the factual 

record here does not demonstrate that the record is actually complete. (Opp’n at 

12.) Both here and in the court below, plaintiffs have relied on assumptions about 

the behavior and intentions of individuals that contributed to their preferred 

candidates’ opponents. (E.g., Pls.’ Principal Br. at 6, 16, 20.) Although the FEC 

maintains that even these unsubstantiated assumptions cannot salvage plaintiffs’ 

claims, if this Court is to review those claims, the Commission should have been 

permitted to test and refute plaintiffs’ unsubstantiated assumptions before any 

constitutional questions are considered and decided by this Court. 

CONCLUSION

For the foregoing reasons and those set forth in the Commission’s motion, 

this Court should remand this case to the district court.

Respectfully submitted,

Lisa J. Stevenson 

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

Erin Chlopak

Acting Assistant General Counsel

January 22, 2015

/s/ Steve N. Hajjar

Steve N. Hajjar

Attorney

FEDERAL ELECTION 

COMMISSION

999 E Street, NW

Washington, DC 20463 

(202) 694-1650

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________

)

HOLMES, et al. )

)

Plaintiffs, )

)

v. ) No. 14-5281

)

FEDERAL ELECTION COMMISSION, ) CERTIFICATE OF SERVICE

)

Defendant. )

____________________________________)

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of January, 2015, I electronically filed 

the Commission’s Motion for Remand with the Clerk of the Court of United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

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

Allen Dickerson

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, VA 22314

(703) 894-6800

/s/ Steve N. Hajjar

Federal Election Commission

999 E Street, NW

Washington, DC 20463

(202) 694-1650

shajjar@fec.gov

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