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CASE ARGUED JANUARY 27, 2010, DECIDED MARCH 26, 2010 

No. 08-5223 (L), 09-5342 

__________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SPEECHNOW.ORG, DAVID KEATING, 

FRED M. YOUNG, JR., EDWARD H. CRANE, III, 

BRAD RUSSO and SCOTT BURKHARDT, 

Appellants, 

 

v. 

 

FEDERAL ELECTION COMMISSION, 

 

Appellee. 

__________________

On Appeal from the United States District Court 

for the District of Columbia, 

Case No. 08-cv-00248 (JR) 

__________________

REPLY MEMORANUM IN SUPPORT OF APPELLANTS’ 

MOTION FOR IMMEDIATE ISSUANCE OF THE MANDATE 

 Contrary to the Federal Election Commission’s argument in its 

response, the only requirement that Plaintiffs must satisfy in order to gain 

expedited issuance of the mandate is to make a showing of good cause. D.C. 

Cir. R. 41(a)(1) (stating that a party may “move for expedited issuance of the 

mandate for good cause shown”). The Plaintiffs, who prevailed in a 

unanimous ruling from this en banc Court on the issue of contribution limits, 

have clearly met this requirement. 

Case: 08-5223 Document: 1241952 Filed: 04/27/2010 Page: 1
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As Plaintiffs pointed out in their motion, they have been litigating this 

case for more than two years. Because the district court denied Plaintiffs’ 

motion for a preliminary injunction to operate free of contribution limits, 

they missed their opportunity to speak during the 2008 election cycle. In 

vacating the district court’s denial of a preliminary injunction, this Court 

implicitly recognized that Plaintiffs have suffered and continue to suffer 

irreparable harm due to their inability to speak out. Given the unanimous 

nature of this Court’s decision, there is no reason for Plaintiffs to continue to 

suffer the infringement of their fundamental First Amendment rights to 

speak and associate—and thus miss out on the opportunity to speak during 

the current election season. With each passing day, Plaintiffs lose time they 

need for SpeechNow.org to receive contributions and then use those funds to 

plan, produce, and broadcast advertisements. 

These circumstances clearly constitute good cause. Instead of 

attempting to rebut this showing, the FEC simply ignores it. It then stakes 

its defense solely on a different test that it asserts Plaintiffs must pass—a test 

that would allegedly require Plaintiffs to show both that this Court will not 

change its decision on rehearing and that it is unlikely that the Supreme 

Court would grant certiorari if the FEC appeals. Conceding (at least 

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implicitly) that Plaintiffs can meet the first prong of its test,1 the FEC says 

that Plaintiffs cannot meet the second. 

In support of the test it proposes, the FEC relies solely on a single 

statement that it takes out of context from this Court’s decision in Johnson v. 

Bechtel Assocs. Prof’l Corp.: that a “court may order immediate issuance of 

the mandate when ‘satisfied (1) that [the] Court would not change its 

decision upon hearing, much less hear the case en banc, and (2) that there is 

no reasonable likelihood that the Supreme Court would grant review.’” 801 

F.2d 412, 415 (D.C. Cir. 1986) (quoting Ostrer v. United States, 584 F.2d 

594, 598 (2d Cir. 1978)). But Johnson is completely inapposite because it 

did not concern a motion to expedite issuance of a mandate, much less the 

requirements for prevailing on such a motion. Rather, the case concerned 

the circumstances in which this Court will sua sponte issue a mandate 

immediately upon the entry of judgment. 

In Johnson, the Court held that appellants’ petition for rehearing was 

untimely because it had, sua sponte, exercised its discretion to issue the 

mandate immediately—that is, at the same time it issued its judgment. 801 

 

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 The Federal Election Commission, while arguing that Plaintiffs cannot 

demonstrate that the Supreme Court is unlikely to grant review, does not 

even attempt to argue that this Court might change its decision on rehearing. 

FEC’s Opp’n to Pls.’ Mot. 2. 

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F.2d at 415. As a result, there was simply no period of time in which the 

Court could have considered a petition for rehearing. Id. In describing why 

its decision to issue the mandate immediately upon entry of judgment was 

appropriate, the Court offered the above-quoted statement. The Court was 

not—as the FEC would have this Court believe—establishing a new test for 

the completely different situation (presented here) in which a party seeks 

expedited issuance of a mandate that has not yet issued.2

 Indeed, Plaintiffs 

have found no case citing Johnson as having adopted such a test in this 

context. 

In sum, as this Court noted in its Order of March 26, whether to grant 

Plaintiffs’ motion to expedite turns on a single factor: whether they have 

shown good cause. SpeechNow.org v. Federal Election Commission, No. 

08-5223 (D.C. Cir. Mar. 26, 2010) (order concerning issuance of mandate). 

Furthermore, granting Plaintiffs’ motion will in no way prejudice either 

 

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 Likewise, in the language from the Second Circuit decision quoted by 

Johnson, the court was not setting forth a test for a party moving for 

expedited issuance of the mandate. Ostrer, 584 F.2d at 598. Instead, it was 

simply describing why it had, in an earlier decision, ordered sua sponte that 

a mandate be issued “forthwith” upon entry of judgment. The court 

explained that a court may enter such sua sponte orders when it finds that 

“the issues presented on appeal by a defendant or habeas petitioner are 

meritless and that the likelihood of the appellant’s prevailing in further 

proceedings in our court or of his obtaining review by the Supreme Court is 

slim.” Id. 

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party. Plaintiffs are not moving for rehearing, and the FEC has implicitly 

conceded that it will not. FEC’s Opp’n to Pls.’ Mot. 2. It is highly unlikely 

that the Court would grant any such petition. Nor would granting Plaintiffs’ 

motion in any way prejudice either party’s right to petition for certiorari if 

they so choose. The issuance of a mandate by a court of appeals does not 

divest the Supreme Court of jurisdiction to review that court’s judgment. 

Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 467 (1947) (“Nor does the 

fact that the mandate of the Circuit Court of Appeals has issued defeat this 

Court’s jurisdiction.”); see also United States v. Villamonte-Marquez, 462 

U.S. 579, 581 n.2 (1983). Nor would any action by the district court—such 

as entering judgment in this case and enjoining the application of 2 U.S.C. 

§§ 441a(a)(1)(c) and (a)(3) against Plaintiffs—affect the Supreme Court’s 

jurisdiction. Carr v. Zaja, 283 U.S. 52, 53 (1931) (holding that fact that 

mandate was “issued to the District Court and spread upon its records” did 

not defeat the Court’s jurisdiction); see also The Conqueror, 166 U.S. 110, 

113 (1897) (stating that “[t]he fact that the mandate of the circuit court of 

appeals to the district court, affirming the decree of that court, had gone 

down, is immaterial”). 

The FEC has already had over one month to decide what future 

actions to take in this case; for the reasons described above, granting 

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Plaintiffs’ motion will not prejudice the government. In light of the 

Supreme Court’s clear ruling in Citizens United—in which the Court noted 

that two years is too long to have to wait to speak in an election, see Citizens 

United v. FEC, 130 S. Ct. 876, 895 (2010)—this Court should issue the 

mandate immediately. 

Respectfully submitted, 

/s/ Robert Gall

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Email: wmellor@ij.org, ssimpson@ij.org, 

bgall@ij.org, rfrommer@ij.org, 

psherman@ij.org 

Stephen M. Hoersting 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

 I certify that on April 27, 2010, a true and correct copy of REPLY 

MEMORANUM IN SUPPORT OF APPELLANTS’ MOTION FOR 

IMMEDIATE ISSUANCE OF THE MANDATE was filed electronically 

using the Court’s ECF system and sent via the ECF electronic notification 

system to the following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Robert Gall

 Robert Gall 

 Counsel for Plaintiffs 

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