UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

INGA L. PARSONS, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1265 (JEB) 

 ) 

 v. ) UNOPPOSED 

 ) MOTION TO DISMISS 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_______________________________________) 

UNOPPOSED MOTION TO DISMISS 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Federal Election Commission 

moves to dismiss this case because plaintiffs lack standing, for the reasons stated in the 

accompanying Statement of Points and Authorities. A Proposed Order is attached. Plaintiffs 

have indicated that they do not oppose this motion. 

Respectfully submitted, 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 1 of 8
2

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

September 23, 2014 Fax: (202) 219-0260 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 2 of 8
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

INGA L. PARSONS, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1265 (JEB) 

 ) 

 v. ) STATEMENT OF POINTS 

 ) AND AUTHORITIES 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_______________________________________) 

STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

UNOPPOSED MOTION TO DISMISS 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Federal Election Commission 

(“Commission” or “FEC”) moves to dismiss this case because plaintiffs lack standing. The 

Commission interprets the contractor contribution ban challenged here as not applying to the 

relationships with the government that attorneys like plaintiffs have under the Criminal Justice 

Act, 18 U.S.C. § 3006A (“CJA”). As a result, plaintiffs have suffered no cognizable injury and 

face no threat of injury, so they lack standing. (See Mem. Op. and Order denying Motion for 

Certification at 3-4 (Aug. 21, 2014) (Docket No. 15) (plaintiffs may lack standing if the 

contractor contribution ban does not apply to them).) Plaintiffs have indicated that they do not 

oppose this motion.1

 

1

 Although plaintiffs agree that this case can be dismissed, the parties did not file a 

joint stipulation of dismissal because plaintiffs preferred to have the FEC move to 

dismiss. In response to the Commission’s proposed joint stipulation that contained 

statements of law, counsel for the plaintiffs explained that “[t]he statements in the draft 

are statements of the FEC, and we have decided not to do additional research to challenge 

or confirm them in light of the fact that the FEC agrees that our clients will not violate the 

law if they make contributions while serving as CJA lawyers.” 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 3 of 8
2

Plaintiffs bear the burden of establishing the elements that make up the “irreducible 

constitutional minimum” of constitutional standing. Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560 (1992). They must show: (1) an injury in fact, (2) a causal connection between the 

injury and the challenged action of the defendant, and (3) a likelihood that the injury will be 

redressed by a favorable decision of the court. Id. at 560-61. The injury-in-fact must be an 

invasion of a legally protected interest that is “concrete and particularized” as well as “actual or 

imminent,” not “conjectural” or “hypothetical.” Id. at 560 (internal quotation marks and citation 

omitted). Plaintiffs claiming that a law is infringing their First Amendment rights must have an 

“actual and well-founded fear that the law will be enforced against them.” Virginia v. Am. 

Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Without a “credible threat” of enforcement, 

no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). 

The plaintiffs in this case are attorneys who receive appointments from federal courts 

under the CJA, 18 U.S.C. § 3006A, to represent defendants who are unable to afford adequate 

representation. Plaintiffs have challenged 52 U.S.C. § 30119 (formerly 2 U.S.C. § 441c),2

 which 

prohibits “any person . . . who enters into any contract with the United States . . . for the 

rendition of personal services . . . to the United States” from making a campaign contribution, “if 

payment for the performance of such contract . . . is to be made in whole or in part from funds 

appropriated by the Congress.” Plaintiffs have alleged in their complaint that they are 

government contractors prohibited from making campaign contributions. (Complaint for 

Declaratory and Injunctive Relief (“Compl.”) ¶¶ 5-7 (Docket No. 1).) They have contended that 

 

2

 On September 1, 2014, the Federal Election Campaign Act was transferred from 

Title 2 of the United States Code to new Title 52 of the United States Code. See United 

States Code Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.pdf. 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 4 of 8
3

this ban on contributions violates their constitutional rights under both the equal protection 

guarantee of the Fifth Amendment as well as the First Amendment. (Compl. ¶¶ 14, 17.) 

The defendant in this case is the FEC, the independent agency of the United States with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-46 (“FECA”) (formerly 2 U.S.C. 

§§ 431-57). For the reasons stated below, the Commission interprets the contractor contribution 

ban as not applying to CJA attorneys. 

The FEC has twice determined that an individual does not enter into a contract for 

purposes of 52 U.S.C. § 30119 (formerly 2 U.S.C. § 441c) when the individual’s appointment 

and compensation for the provision of services are specifically established by federal statutes and 

regulations. See FEC Advisory Opinion 1987-33 (“Lawyers For Better Government Fund I”), 

http://saos.fec.gov/aodocs/1987-33.pdf; FEC Advisory Opinion 1988-49 (“Lawyers For Better 

Government Fund II”), http://saos.fec.gov/aodocs/1988-49.pdf. 

In the first instance, the Commission determined that appointees to a Department of 

Labor advisory council were not contractors because of the comprehensive statutory scheme that 

regulated their appointments and performance of duties: The Secretary of Labor appointed and 

supervised the council members pursuant to statute, the members offered advice pursuant to 

statute, and they were paid at a rate prescribed by statute. Lawyers For Better Government Fund 

I at 2. (“Council members do not negotiate a contract (written or otherwise) regulating the terms 

of their employment, but instead are subject to the terms of their appointment which, along with 

the amount of their compensation, is governed by Federal statute.”). The Commission did 

indicate that the appointees could be characterized as government employees, but the analysis 

remains instructive as to the scope of section 30119 (formerly section 441c). 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 5 of 8
4

In the second advisory opinion, the Commission concluded that an individual appointed 

to serve on a panel of private bankruptcy trustees was not a contractor where federal statutes and 

regulations governed the establishment of the panels, the appointment of individuals to serve on 

them, the authority to remove appointees from service, the length of a panel member’s term, the 

authority to determine the size of the panels, and the composition and qualifications for 

membership, the application process, and compensation. Lawyers For Better Government Fund 

II at 2 (“It appears that a member of the panel does not contract for a position but is appointed by 

the United States Trustee. The terms of the member’s tenure and compensation [are] not 

regulated by a contract, but, instead, by Federal statutes and regulations.”) 

The relationship that CJA panelists have with the federal government resembles the 

relationships analyzed in those two earlier advisory opinions. The CJA is a detailed legislative 

scheme that governs each panelist’s relationship with the federal government: The CJA governs 

how the attorneys are appointed (e.g., generally “from a panel of attorneys designated or 

approved by the court”), the scope of the panelists’ appointments (e.g., “at every stage of the 

proceedings . . . including ancillary matters”), and their termination or substitution. See 18 

U.S.C. § 3006A(b)-(c). The CJA also establishes the specific hourly pay rates, with maximum 

amounts per case, to which CJA attorneys are entitled, and it identifies when and how 

reimbursements may be made. Id. § 3006A(d); see also Guide to Judiciary Policy, Vol. 7A, § 

230, http://www.uscourts.gov/uscourts/FederalCourts/AppointmentOfCounsel/vol7/Vol07ACh02.pdf. (providing detailed matrix of maximum compensation amounts). Thus, for the same 

reasons that the Commission found the requestors in the Better Government advisory opinions 

not to hold contracts with the United States, the Commission interprets 52 U.S.C. § 30119 

(formerly 2 U.S.C. § 441c) as inapplicable to CJA appointments. 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 6 of 8
5

In addition, two cases have determined that CJA attorneys do not have a contract with the 

government. In Shearin v. United States, a CJA attorney who had represented four criminal 

appellants sued the United States for breach of contract after she did not receive full payment 

(due to late and incomplete vouchers for payment that she submitted). 26 Cl. Ct. 678, 679 

(1992), aff’d, 992 F.2d 1195 (Fed. Cir. 1993). The court found that she had only a statutory 

right, not a contractual one, and therefore she could not pursue a breach of contract claim. Id.

(“By appointing counsel, the district court or court of appeals is not contracting for services. It is 

merely exercising its role under the statute. The circumstances alleged here therefore could not 

lead to the formation of a contract.”); see also Marcum LLP v. United States, 112 Fed. Cl. 167, 

177 (2013) (“CJA compensation claims are not takings nor breach of contract claims. Rather, 

they are statutory claims derived under the CJA.”), aff’d, 753 F.3d 1380 (Fed. Cir. 2014). 

For these reasons, the Commission interprets the contractor contribution ban at 52 U.S.C. 

§ 30119 (formerly 2 U.S.C. § 441c) as not applying to CJA attorneys like the plaintiffs. Because 

the FEC is the agency responsible for interpreting and enforcing FECA, including the contractor 

contribution ban, there exists no credible threat of enforcement against plaintiffs. Therefore, 

plaintiffs lack the injury-in-fact needed to support standing in this constitutional challenge. The 

case should be dismissed. 

Respectfully submitted, 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 7 of 8
6

hsummers@fec.gov 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

September 23, 2014 Fax: (202) 219-0260 

Case 1:14-cv-01265-JEB Document 17 Filed 09/23/14 Page 8 of 8