1 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA 

_____________________________________

WENDY E. WAGNER, et al., 

Plaintiffs-Appellants, 

) 

) 

) 

) 

) 

No. 12-5365 

 v. ) 

) 

MOTION TO RECALL 

AND STAY REISSUANCE 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. 

_____________________________________

) 

) 

) 

) 

OF THE MANDATE 

 

FEDERAL ELECTION COMMISSION’S MOTION TO RECALL AND 

STAY REISSUANCE OF THE MANDATE

The Federal Election Commission (“FEC” or “Commission”) hereby moves 

to recall the mandate and stay reissuance to the district court for a period of ten 

days to allow the Commission the opportunity to consider whether to petition for 

rehearing en banc and/or file a petition in the Supreme Court for a writ of 

certiorari. Courts of appeals have the “inherent power to recall their mandates” 

after they are issued. Calderon v. Thompson, 523 U.S. 538, 549 (1998); see also

Northern Cal. Power Agency v. Nuclear Regulatory Comm’n, 393 F.3d 223, 224 

(D.C. Cir. 2004). 

Earlier today, this Court issued a judgment and opinion holding that it lacked 

jurisdiction to hear the merits of the appeal. (Doc No. 1438703, May 31, 2013 

USCA Case #12-5365 Document #1438938 Filed: 05/31/2013 Page 1 of 5
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(“Opinion”)). The Court held that it lacked jurisdiction because only the entire 

Court sitting en banc could decide constitutional questions about the Federal 

Election Campaign Act (“FECA”) when they are brought by the “Commission, the 

national committee of any political party, or any individual eligible to vote in any 

election for the office of President.” Opinion at 5 (quoting 2 U.S.C. § 437h). At 

the Court’s instruction, the Clerk issued the mandate immediately, without 

providing for the ordinary 45-day period in which the parties would have had an 

opportunity to file a motion for rehearing en banc. See F.R.A.P. 41(a)(1)(B); D.C. 

Circuit Rule 35(a). 

Immediate issuance of the mandate and district court proceedings may 

foreclose further review of the Court’s opinion. Although this case may eventually 

be certified as appropriate for consideration by the Court sitting en banc under 

section 437h, a challenge to this Court’s jurisdictional ruling may be moot if 

section 437h proceedings have already occurred. The Commission has made no 

decision regarding whether to seek further review of the Court’s Opinion. To 

avoid the possibility that further challenges may be foreclosed by the proceedings 

ordered to occur on remand in the district court, however, the Commission requests 

that the Court recall its mandate and stay its reissuance for a period of ten days.1

 

1

 The Commission has consulted with counsel for Plaintiff-Appellants concerning this 

motion. Their position is that they do not oppose recall of the mandate, but request that the 

district court proceedings continue during the additional time the Commission is proposing. The 

USCA Case #12-5365 Document #1438938 Filed: 05/31/2013 Page 2 of 5
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Respectfully submitted, 

Anthony Herman 

General Counsel 

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 J. Baker 

Attorney 

 /s/ Seth Nesin

Seth Nesin 

Attorney

 FOR THE DEFENDANT-APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

May 31, 2013 (202) 694-1650 

 

 

Commission objects to such parallel proceedings. Once the mandate is recalled, the district court 

lacks jurisdiction to conduct further proceedings. 

USCA Case #12-5365 Document #1438938 Filed: 05/31/2013 Page 3 of 5
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UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA 

_____________________________________

WENDY E. WAGNER, et al., 

Plaintiffs-Appellants, 

) 

) 

) 

) 

) 

Appeal No. 12-5365 

 v. ) 

) 

CERTIFICATE OF SERVICE 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee. 

_____________________________________

) 

) 

) 

) 

 

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of May, 2013, I electronically filed the 

Federal Election Commission’s Motion to Recall and Stay Reissuance of the 

Mandate by using the Court’s CM/ECF system. 

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

Alan B. Morrison 

George Washington Law School 

2000 H Street NW 

Washington, D.C. 20052 

abmorrison@law.gwu.edu 

Arthur B. Spitzer 

American Civil Liberties Union of the Nation’s Capital 

4301 Connecticut Ave., N.W., Suite 434 

Washington, D.C. 20008 

artspitzer@gmail.com 

USCA Case #12-5365 Document #1438938 Filed: 05/31/2013 Page 4 of 5
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J. Gerald Hebert 

The Campaign Legal Center 

215 E. Street, N.E. 

Washington, DC 20002 

ghebert@campaignlegalcenter.org 

Fred Wertheimer 

Democracy 21 

2000 Massachusetts Avenue, N.W. 

Washington, DC 20036 

fwertheimer@democracy21.org 

Scott Nelson 

Public Citizen 

1600 20th Street N.W. 

Washington, DC 20009 

snelson@citizen.org 

 /s/ Seth Nesin

 Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 

USCA Case #12-5365 Document #1438938 Filed: 05/31/2013 Page 5 of 5