ORAL ARGUMENT NOT YET SCHEDULED 

Nos. 15-5016, 15-5017 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CHRISTOPHER VAN HOLLEN, JR.,

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

CENTER FOR INDIVIDUAL FREEDOM and 

HISPANIC LEADERSHIP FUND, 

Intervenors-Defendants-Appellants. 

_______________________________________________ 

On Appeal from the United States District Court for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson Holly J. Baker 

Deputy General Counsel – Law Attorney 

lstevenson@fec.gov hbaker@fec.gov 

Kevin Deeley Seth Nesin 

Acting Associate General Counsel Attorney 

kdeeley@fec.gov snesin@fec.gov 

Harry J. Summers FOR THE APPELLEE 

Assistant General Counsel FEDERAL ELECTION COMMISSION 

hsummers@fec.gov 999 E Street NW 

Washington, DC 20463 

May 11, 2015 (202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), the Federal Election Commission 

(“FEC” or “Commission”) submits its Certificate as to Parties, Rulings, and 

Related Cases. 

(A) Parties and Amici. Christopher Van Hollen, Jr. was the plaintiff in the 

district court and is an appellee in this proceeding. Center for Individual Freedom 

(“CFIF”) and Hispanic Leadership Fund were intervenor-defendants in the district 

court and are appellants in this proceeding. The Commission was the defendant in 

the district court and is an appellee in this Court. Cause of Action Institute has 

filed an amicus brief in support of appellants. 

(B) Rulings Under Review. CFIF and Hispanic Leadership Fund appealed 

District Court Judge Amy Berman Jackson’s order and opinion (Nov. 25, 2014, 

J.A. 404, 405) granting Van Hollen’s motion for summary judgment, denying their 

cross-motions for summary judgment, and vacating 11 C.F.R. § 104.20(c)(9), as 

well as from all orders and rulings merged therein. In two filings dated February 

23, 2015, CFIF specifically stated that among the orders it was appealing was the 

district court’s May 1, 2013 order (J.A. 396) denying CFIF’s motion for leave to 

amend its pleading. (Appellant CFIF’s Corrected Certificate as to Parties, Rulings, 

and Related Cases at 4 (Doc. No. 1539114); Corrected Statement of Underlying 

Decision from Which Appeal Arises at 1-2 (Doc. No. 1539115).) The Commission 

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did not appeal the district court’s summary judgment ruling, and its participation in 

this appeal is solely to defend the May 1 order. However, CFIF’s opening brief 

does not include the order in its list of rulings under review and otherwise omits 

any reference to its appeal of that order. (Compare id. with Opening Brief for 

Appellant CFIF at ii-iii (Doc. No. 1546907)). For the reasons explained below, the 

Court should deem the May 1 order no longer a ruling under review. 

(C) Related Cases. This case was on review in this Court previously as Center 

for Individual Freedom v. Van Hollen, Nos. 12-5117, 12-5118, 694 F.3d 108 (D.C. 

Cir. 2012) (per curiam). The Commission knows of no other related cases as that 

phrase is defined in D.C. Circuit Rule 28(a)(1)(C). 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF ISSUE PRESENTED ......................................... 1 

COUNTERSTATEMENT OF THE CASE ......................................................... 1 

SUMMARY OF ARGUMENT ........................................................................... 4 

ARGUMENT ....................................................................................................... 4 

I. STANDARD OF REVIEW ....................................................................... 4 

II. CFIF HAS WAIVED ALL ARGUMENTS REGARDING 

THE DENIAL OF ITS MOTION FOR LEAVE TO AMEND ................ 5 

CONCLUSION .................................................................................................... 8 

 

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TABLE OF AUTHORITIES 

Cases 

*Ala. Power Co. v. Gorsuch, 672 F.2d 1 (D.C. Cir. 1982) (per curiam) ............ 7 

Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) .......................... 7 

Arias v. INS, 866 F.2d 500 (D.C. Cir. 1989) ....................................................... 8 

Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99 (D.C. Cir. 2003) .......... 8 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) 

(per curiam) ............................................................................................... 2 

Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984)............................................................................... 2, 3 

*Corson & Gruman Co. v. NLRB, 899 F.2d 47 (D.C. Cir. 1990) (per curiam) .. 6

Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413 (D.C. Cir. 1996) ................ 6 

Reyes–Arias v. INS, 866 F.2d 500 (D.C. Cir. 1989) ............................................ 8 

Rollins Envtl. Servs. v. EPA, 937 F.2d 649 (D.C. Cir. 1991) ........................... 7-8 

Trumpeter Swan Soc. v. EPA, 774 F.3d 1037 (D.C. Cir. 2014) .......................... 8

United States v. Am. Ry. Express Co., 265 U.S. 425 (1924) ............................... 5 

United States v. White, 454 F.2d 435 (7th Cir. 1971) .......................................... 7 

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243 

 (D.C. Cir. 1987) ......................................................................................... 4 

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971) ............... 4 

Statutes and Regulations 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-146 .................................. 1 

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52 U.S.C. § 30104(f)(2)(E) .................................................................................. 1 

52 U.S.C. § 30104(f)(2)(F) .................................................................................. 1 

11 C.F.R. § 104.20(c)(9) .................................................................................. 1, 2 

Miscellaneous 

6 Wright & Miller, Federal Practice and Procedure § 1484 (1971) .................... 4 

 

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GLOSSARY 

CFIF Center for Individual Freedom 

FEC Federal Election Commission 

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COUNTERSTATEMENT OF ISSUE PRESENTED

Has the Center for Individual Freedom (“CFIF”) waived all arguments that 

the district court erred in denying CFIF’s motion for leave to amend its pleading 

where CFIF included the issue in initial filings in this Court but chose not to argue 

the issue in its opening brief? 

COUNTERSTATEMENT OF THE CASE 

In April 2011, Congressman Chris Van Hollen filed this lawsuit against the 

Federal Election Commission (“FEC” or “Commission”), an independent agency 

of the United States government with exclusive jurisdiction over the 

administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act, 52 U.S.C. §§ 30101-146. (Complaint (J.A. 316).) Van Hollen 

contends that the Commission acted unlawfully in 2007 when it promulgated 11 

C.F.R. § 104.20(c)(9), which governs the disclosure of donations to makers of 

electioneering communications, because that regulation is allegedly contrary to 52 

U.S.C. § 30104(f)(2)(E) and (F). CFIF and Hispanic Leadership Fund intervened 

to defend the regulation and, like the FEC, argued that section 104.20(c)(9) was a 

lawful exercise of the Commission’s power. 

 The district court twice granted summary judgment to Van Hollen. In the 

district court’s first summary judgment opinion, it found that the Commission 

lacked statutory authority to promulgate the regulation under the first step of 

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review under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984). (Mem. Op. (J.A. 340, Mar. 30, 2012).) CFIF and Hispanic 

Leadership Fund appealed the Court’s summary judgment determination, and the 

Court of Appeals reversed, holding that the FEC had statutory authority to 

promulgate the 2007 regulation under Chevron Step One. Ctr. for Individual 

Freedom v. Van Hollen, Nos. 12-5117, 12-5118, 694 F.3d 108, 110 (D.C. Cir. 

2012) (per curiam) (J.A. 382). The Court of Appeals remanded for the FEC to 

consider whether to engage in rulemaking to clarify its regulations and, should the 

Commission decline, for the district court to then consider whether section 

104.20(c)(9) “is reasonable, and thus entitled to deference under Chevron Step 

Two.” (J.A. 386.) 

 Following the remand, the Commission declined to initiate a rulemaking and 

CFIF then unsuccessfully petitioned the agency for a specific rulemaking, asking 

that section 104.20(c)(9) be amended by removing a cross-reference in the 

regulation. (J.A. 393 ¶¶ 46-47.) CFIF next filed the motion that was expected to 

be the subject of this brief — the Motion for Leave to File Amended and 

Supplemented Answer and Crossclaims. CFIF asked to add three cross-claims: 

(1) that the FEC acted unlawfully by dismissing CFIF’s petition for rulemaking; 

(2) that the regulatory scheme that preceded the promulgation of section 

104.20(c)(9) in 2007 was unlawful and therefore should not be resuscitated if the 

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existing regulation is invalidated; and (3) that the statutory disclosure regime is 

unconstitutional as applied to CFIF and other corporations in the absence of a 

regulatory limitation based on donor purpose such as section 104.20(c)(9). 

([Proposed] Am. and Supp. Answer and Crossclaims of Def. CFIF, J.A. 391-94.) 

 The FEC and plaintiff Van Hollen opposed CFIF’s motion to amend. The 

FEC contended that the proposed cross-claims were not ripe and would delay the 

litigation and hinder judicial economy. (FEC Opp’n at 4-10 (D.D.C. Docket No. 

88).) The Commission also asserted that the specific claims were, inter alia, either 

futile, outside the scope of the lawsuit, or unnecessary. (Id. at 8-11.) Plaintiff Van 

Hollen opposed CFIF’s motion for several of the same reasons and because 

intervenors are not permitted to broaden the issues before a court. (Pl.’s Opp’n 

(D.D.C. Docket No. 86).) 

The district court denied CFIF’s proposed motion for leave to amend. 

(Order (J.A. 396).) The Court found that, as an intervenor, CFIF could not assert 

cross-claims that would expand the scope of the litigation. (Mem. Op. (J.A. 397-

99, May 1, 2013).) The district court also determined, in the alternative, that even 

if an intervenor like CFIF could broaden the scope of litigation, the court would 

not exercise its discretion to allow such an amendment in this case because the 

proposed cross-claims involved facts that differed from those in the existing case 

and adding them would cause prejudice, delay, and increased costs. (J.A. 399.) 

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 The district court subsequently granted summary judgment to Van Hollen 

under Chevron Step Two. (J.A. 404, 405.) 

SUMMARY OF ARGUMENT 

 Although CFIF stated in its initial filings that it was appealing the denial of 

its motion for leave to amend its pleading, CFIF makes no argument about that 

district court order in its opening brief and mentions the order only in a footnote, 

which states without explanation that “[t]his brief does not independently 

challenge that order.” As a result, CFIF has abandoned its appeal of that decision, 

and it is barred from initiating argument about the issue later, including in its reply 

brief or at oral argument. 

ARGUMENT 

I. STANDARD OF REVIEW 

It is within the sound discretion of the district court to decide whether to 

grant leave to amend a pleading. See, e.g., Zenith Radio Corp. v. Hazeltine 

Research, Inc., 401 U.S. 321, 330 (1971). If properly challenged, reversal of a 

district court’s decision not to permit amendment would thus be appropriate only if 

there had been an abuse of discretion. Williamsburg Wax Museum, Inc. v. Historic 

Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987) (citing 6 Wright & Miller, 

Federal Practice and Procedure § 1484 (1971)). 

 

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II. CFIF HAS WAIVED ALL ARGUMENTS REGARDING THE 

DENIAL OF ITS MOTION FOR LEAVE TO AMEND 

In its opening brief, CFIF does not assert, and thus has waived, any 

argument that the district court erred in denying CFIF’s motion for leave to amend 

its pleading. 

The FEC participated in this appeal after CFIF’s February 23, 2015 filings 

explicitly indicated that it was appealing the district court’s May 2013 denial of 

CFIF’s motion for leave to amend. (Appellant CFIF’s Corrected Certificate as to 

Parties, Rulings, and Related Cases (“CFIF’s Corrected Certificate”) at 4 (Doc. No. 

1539114); Corrected Statement of Underlying Decision from Which Appeal Arises 

at 1-2 (Doc. No. 1539115).) Indeed, CFIF’s Statement of Underlying Decision 

attached the May 2013 order and memorandum opinion. (CFIF’s Corrected 

Certificate at 3-6 (attachments).) 

The Commission did not appeal the district court’s summary 

judgment decision. But as explained in the Commission’s Unopposed 

Motion to Amend Briefing Schedule at 1-2 (Doc. No. 1541819), the portion 

of the judgment below reflecting the denial of the motion to amend was 

favorable to the Commission. The Commission was entitled to defend the 

district court’s ruling without filing a cross-appeal, United States v. Am. Ry. 

Express Co., 265 U.S. 425, 435 (1924), and intended to do so. 

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However, CFIF’s opening brief omits any reference to its earlier statements 

that it was appealing the May 2013 order. (See Opening Brief for Appellant CFIF 

at ii-iii (Doc. No. 1546907).) CFIF’s brief does not mention the denial of the 

motion for leave to amend in the Rulings Under Review, the Statement of the 

Issues, or the body of the Argument section. (See generally id.) The brief’s sole 

reference to the May 2013 order is in a footnote, in which CFIF states without 

further explanation that “[t]his brief does not independently challenge that order.” 

(Id. at 43 n.8.) 

Arguments not made by appellants in an opening brief are waived. Corson 

& Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) (per curiam)

(“[Defendant] never raised this issue in its opening brief before us and therefore 

waived the argument in this court.”); see also Parsippany Hotel Mgmt. Co. v. 

NLRB, 99 F.3d 413, 418-19 (D.C. Cir. 1996) (stating that an issue “would . . . be 

barred from consideration by this court” if a party “did not raise the issue in its 

opening brief”). This rule prevents unfairness to other parties, who must have an 

adequate opportunity to respond to arguments. Corson & Gruman Co, 899 F.2d at 

50 n.4 (“We require petitioners and appellants to raise all of their arguments in the 

opening brief to prevent ‘sandbagging’ of appellees and respondents and to provide 

opposing counsel the chance to respond.”) 

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The waiver rule also benefits the Court, which is denied the chance to make 

a reasoned decision in the absence of argument from all interested parties. United 

States v. White, 454 F.2d 435, 439 (7th Cir. 1971) (finding issue waived where the 

court has “not been presented with sufficient information or argument to allow an 

intelligent disposition of [the] issue”). For these reasons, courts routinely decline 

to rule on questions that have not been argued in opening briefs. See Ala. Power 

Co. v. Gorsuch, 672 F.2d 1, 7 n.34 (D.C. Cir. 1982) (per curiam) (identifying 

numerous cases, from this Circuit and others, in which the court declined to 

address a question because it was not argued, or not argued sufficiently, in the 

opening briefs). 

In this case, CFIF has not merely failed to advance a particular argument, 

but it has altogether abandoned its appeal of the district court’s May 2013 denial of 

the motion to amend. Although it is not entirely clear what CFIF means when it 

indicates that “this brief” does not “independently” challenge that order (Opening 

Brief for Appellant CFIF at 43 n.8 (Doc. No. 1546907)), CFIF’s failure to make 

any argument about the order in its opening brief forfeits any opportunity for it to 

raise such arguments later, including in its reply brief or at oral argument. See Am. 

Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“We need not 

consider this argument because plaintiffs have forfeited it on appeal, having raised 

it for the first time in their reply brief.”); Rollins Envtl. Servs. v. EPA, 937 F.2d 

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649, 652 n. 2 (D.C. Cir. 1991) (“Issues may not be raised for the first time in a 

reply brief.”); Reyes–Arias v. INS, 866 F.2d 500, 504 n. 2 (D.C. Cir. 1989) (“We 

are unpersuaded that this reference, appearing as it does rather belatedly in the 

reply brief, rises to the level of an argument.”); Trumpeter Swan Soc. v. EPA, 774 

F.3d 1037, 1044 (D.C. Cir. 2014) (argument cannot be raised for the first time at 

oral argument); Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 n.4 

(D.C. Cir. 2003) (same). Although CFIF may have intended to leave itself some 

flexibility, there is no turning back now and any belated effort to raise the issue 

should not be countenanced. The district court’s May 2013 order denying CFIF’s 

motion for leave to amend its pleading is no longer at issue in this appeal. 

CONCLUSION 

 For the reasons stated above, CFIF has waived any appeal of the district 

court’s denial of CFIF’s Motion for Leave to File Amended and Supplemented 

Answer and Crossclaims, and this Court should not consider any arguments about 

it. 

Respectfully submitted, 

Lisa J. Stevenson 

Deputy General Counsel - Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

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Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Holly J. Baker 

Attorney 

hbaker@fec.gov 

 /s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

May 11, 2015 (202) 694-1650 

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 1,776 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

 /s/ Seth Nesin 

Seth Nesin 

Attorney 

Federal Election Commission 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 11th day of May 2015, I caused the Federal 

Election Commission’s brief in Van Hollen v. FEC, Nos. 15-5016 & 15-5017, to 

be filed with the Clerk of the Court by the electronic CM/ECF System, thereby 

effectuating service on the following: 

Jan Witold Baran, jbaran@wileyrein.com 

Thomas W. Kirby, tkirby@wileyrein.com 

Caleb P. Burns, cburns@wileyrein.com 

Samuel B. Gedge, sgedge@wileyrein.com 

Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Jason Torchinsky, jtorchinsky@hjvlaw.com 

Shawn Sheehy, ssheehy@hjvlaw.com 

 Holtzman Vogel Josefiak PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Daniel Z. Epstein, daniel.epstein@causeofaction.org 

Cause of Action Institute 

1919 Pennsylvania Ave., N.W., Suite 650 

Washington, DC 20006 

Catherine M.A. Carroll, catherine.carroll@wilmerhale.com 

Wilmer Cutler Pickering Hale and Dorr LLP 

1875 Pennsylvania Avenue, NW 

Washington, DC 20006 

Roger M. Witten, Roger.Witten@wilmerhale.com 

Wilmer Cutler Pickering Hale and Dorr LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10022 

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Donald J. Simon, dsimon@sonosky.com 

Sonosky Chambers Sachse Endreson & Perry, LLP 

1425 K Street, NW, Suite 600 

Washington, DC 20005 

Fred Wertheimer, fwertheimer@democracy21.org 

Democracy 21 

2000 Massachusetts Avenue, N.W. 

Washington, DC 20036 

Scott Nelson, snelson@citizen.org 

Public Citizen Litigation Group 

1600 20th Street N.W. 

Washington, DC 20009 

 I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

May 11, 2015 /s/ Seth Nesin 

Seth Nesin 

Attorney 

Federal Election Commission

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