United States District Court

District of Columbia

Republican National Committee et al.,

Plaintiffs,

v.

Federal Election Commission et al.,

Defendants.

Case No. 08-1953 (BMK, RJL, RMC)

 THREE-JUDGE COURT

Plaintiffs’ Supplemental Opposition to the Federal Election Commission’s 

Motion to Dismiss 

In accordance with this Court’s May 5, 2009 order, Plaintiffs Republican National

Committee et al. file this supplemental opposition to the FEC’s motion to dismiss Plaintiffs’

Amended Complaint. Following his election as Chairman of the RNC on January 30, 2009,

Plaintiffs moved this Court to add Michael Steele as a plaintiff to replace outgoing Chairman

Robert M. Duncan. (Dkt. 51). Plaintiffs’ motion was granted on May 5, 2009. Chairman Steele

raises the same claims as did Duncan before him, but unlike Duncan, Chairman Steele was not a

party in McConnell v. FEC, 540 U.S. 93 (2003). The FEC supplemented its motion to dismiss to

include Chairman Steele in lieu of former Chairman Duncan, (Dkt. 74), and argues that

Chairman Steele’s claims are precluded by McConnell. FEC Supp. Mem. at 1. Plaintiffs respond

accordingly. 

I. Chairman Steele’s Claims are not Barred By Res Judicata.

Res judicata is no bar to Chairman Steele’s claims because he was not a party to the

proceedings in McConnell, 540 U.S. 93. Furthermore, res judicata is no bar to Chairman Steele’s

claims because they arise from a different cause of action than McConnell and McConnell did not

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decide the issue in this case. 

A. Chairman Steele was not a Party in McConnell.

Res judicata generally only bars successive claims by identical parties because “[a] person

who was not a party to a suit generally has not had a ‘full and fair opportunity to litigate the

claims and issues settled in that suit.’” Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008) (citation

omitted). The “application of [res judicata] to non-parties thus runs up against the ‘deep-rooted

historic tradition that everyone should have his own day in court.’” Id. (quoting Richards v.

Jefferson County, 517 U.S. 793, 798 (1996)). 

The FEC does not dispute the fact that Chairman Steele was not a party in McConnell.

FEC Supp. Mem. at 1. However, the FEC notes that the general rule against nonparty preclusion

is subject to some narrow exceptions, id. at 2, and argues that an exception is warranted here. Id.

But none of the exceptions permitting nonparty preclusion are applicable to Chairman Steele.

The Supreme Court recently reiterated the limited application of res judicata to nonparties. Taylor, 128 S. Ct. 2161. Taylor rejected the doctrine of “virtual representation,” which

had been employed by some lower courts to expand the application of res judicata to non-parties.

Id. The Court noted that in dealing with nonparty preclusion ““crisp rules with sharp corners’ are

preferable to a round-about doctrine with opaque standards.’” Id. at 2177 (quoting Bittinger v.

Tecumseh Products Co., 123 F.3d 877, 881 (6th Cir. 1997)). Taylor set out six recognized

exceptions to the rule against nonparty preclusion: (1) when a party has agreed to be bound by a

previous decision between other party’s, (2) when there is a legal relationship between the party

to a previous judgement, such as bailee and bailor or assignee and assignor, (3) when a person

was adequately represented by a fiduciary in a previous suit or in certain class action suits, (4) if

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the party assumed control over the previous litigation, (5) if a person seeks to relitigate his claims

through a representative or agent serving as a proxy, or (6) in accordance with certain statutory

schemes that are consistent with the principles of due process. Id. at 2172-73.

While the FEC claims that applying res judicata to Chairman Steele “is consistent with

the categories of nonparty preclusion noted in Taylor,” FEC Supp. Mem. at 3, it fails to

demonstrate the applicability of any of those exceptions. First, the FEC argues that Chairman

Steele is Duncan’s “successor-in-interest” because Steele makes similar allegations and seeks

relief for similar activities as Duncan previously did in this case. Id. But to the extent that Taylor

recognized any such exception, it was in the case of a “pre-existing ‘substantive legal

relationship’” between parties and was based “‘as much from the needs of property law as from

the values of preclusion by judgment.’” 128 S. Ct. at 2172 (citation omitted). Chairman Steele is

in no way Duncan’s “successor-in-interest” to any property right and Chairman Steele and

Duncan have no substantive legal relationship. 

Moreover, Chairman Steele has not adopted former Chairman Duncan’s claims. On the

contrary, Chairman Steele is a plaintiff in his own name, has asserted his own claims, and has

provided his own affidavit describing the activities that he intends to pursue. Pls.’ Motion to

Amend, Exh. 2, Affidavit of Michael Steele (Dkt. 51). That Chairman Steele intends to undertake

the same fundraising activities as Duncan did does not establish any legal relationship between

the two that might warrant the application of res judicata to a nonparty. Chairman Steele’s claims

are completely independent of any claims previously made by Duncan in this case or in

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McConnell. Thus, Chairman Steele is not a successor-in-interest to any party in McConnell.

1

Second, Chairman Steele is not a public official. Therefore, unlike public officials, he is

not bound by any judgment involving his predecessors in office. The FEC’s citations to

authorities regarding successors in public office are irrelevant. FEC Supp. Mem. at 3-4. Morever,

Chairman Steele is the Chairman of the RNC, whereas Duncan’s participation in McConnell was

in his capacity as treasurer of the RNC. So Chairman Steele does not even hold the same nongovernmental office as did Duncan in McConnell. 

Third, contrary to the FEC’s assertion, Chairman Steele is not simply acting as an agent

of the RNC. FEC Supp. Mem. at 4. Taylor stated that the agency exception to nonparty

“preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control

of the party who is bound by the prior adjudication.” 128 S. Ct. at 2179. Permitting the

application of res judicata to a nonparty in such situations prevents a party from avoiding

preclusion “by relitigating through a proxy.” Id. at 2173. Here, Chairman Steele is not acting as a

proxy of the RNC. Indeed, the RNC is itself a named party to this suit. Chairman Steele’s claims

in this action challenge the application of 2 U.S.C. § 441i(1) to him as an officer of a national

party committee. And the RNC’s claims challenge the application of 2 U.S.C. § 441i(1) to

national party committees. So Chairman Steele does not bring the RNC’s claims for it. Indeed, it

1

 The FEC’s citation to Am. Forest Resource Council v. Shea, 172 F. Supp. 2d 24, 27

(D.D.C. 2001), is inapposite. In that case the court held that res judicata was applicable to the

American Forest Resource Council (AFRC) because it was known “in its prior incarnation” as

the Northwest Forest Resource Council (NFRC), which was a named plaintiff in the previous suit

at issue. Id. at 28. NFRC was then “merged into AFRC,” id. at 29, making AFRC its “direct

successor-in-interest.” Id. at 27. On the contrary, Chairman Steele and Duncan are separate

persons with no legal relationship.

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would be impossible for Chairman Steele to bring the claims asserted by the RNC in this suit

because he is not a national party committee. The agency exception has no application to

Chairman Steele.

Finally, the FEC argues that “[t]he practical effect” of “permitting Steele to proceed in

this case demonstrates why he must be subject to preclusion.” FEC Supp. Mem. at 4. In support

of its conclusion the FEC posits that if Chairman Steele’s claims were unsuccessful in this case,

subsequent chairpersons of the RNC could bring similar suits in the future. Id. And if Chairman

Steele’s claims were successful here, “the Court’s ruling would be effective only as to Steele

himself” leaving the FEC free to enforce 2 U.S.C. § 441i(1) against future chairpersons of the

RNC. Id. at 4-5. However, neither of these scenarios is at all unusual. 

In fact, the FEC’s argument was specifically rejected in Taylor. There it was argued that

in the absence of nonparty preclusion “several persons could coordinate to mount a series of

repetitive lawsuits.” Taylor, 128 S. Ct. at 2178. The Court responded:

[W]e are not convinced that this risk justifies departure from the usual rules

governing nonparty preclusion. First, stare decisis will allow courts swiftly to

dispose of repetitive suits brought in the same circuit. Second, even when stare

decisis is not dispositive, “the human tendency not to waste money will deter the

bringing of suits based on claims or issues that have already been adversely

determined against others.”

Id. at 2178 (citation omitted). Both of these points are equally applicable to the FEC’s concern

over the possibility of subsequent suits by future RNC chairpersons if Chairman Steele’s claims

are unsuccessful here. Likewise, if Steele’s as-applied claims are successful res judicata might

not preclude the FEC from enforcing 2 U.S.C. § 441i against future chairpersons, but stare

decisis would advise against the FEC enforcing 2 U.S.C. § 441i in a manner that has been found

Opposition to Supp. Motion to Dismiss 5

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unconstitutional. 

Because Chairman Steele was not a party in McConnell res judicata does not bar his

claims.

B. Chairman Steele’s Claims are Based on a Different Cause of Action Than

McConnell and McConnell did not Decide the Issue in This Case. 

In any event, irrespective of whether or not Chairman Steele was a party in McConnell,

res judicata is no bar to his claims. As set out in Plaintiffs’ Memorandum in Opposition to the

FEC’s Motion to Dismiss (“Pls.’ Mem.”) (Dkt. 27), claim preclusion is not applicable because,

unlike McConnell, this is an as-applied challenge. Pls.’ Mem. at 7-9. McConnell expressly

contemplated future as-applied challenges, by the same parties, to provisions that it facially

upheld. Id. at 7-9. Furthermore, Plaintiffs’ as-applied claims, including Chairman Steele’s, arise

from a nucleus of facts that was not considered in McConnell and the material facts that

McConnell relied on are not present here. Id. at 10-15. 

Likewise, issue preclusion is also not applicable because McConnell’s facial holding did

not purport to uphold the constitutionality of 2 U.S.C. § 441i in every application. Pls.’ Mem. at

15-20. The issue of whether 2 U.S.C. § 441i can constitutionality be applied to Chairman

Steele’s intended activities in this case was not decided in McConnell. Id. 

In sum, this case is not based on the same cause of action as McConnell and McConnell

did not decide the issue in this case. Therefore, Chairman Steele’s claims are not precluded by res

judicata. 

II. Plaintiffs’ Claims do not Fail as a Matter of Law.

In Plaintiffs’ Memorandum in Support of Summary Judgment (Dkt. 21) and in their

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opposition to the FEC’s motion to dismiss (Dkt. 27) Plaintiffs demonstrate at length why

McConnell neither decides nor precludes this case. Therefore, like Duncan’s claims before,

Chairman Steele’s claims do not fail as a matter of law. 

Conclusion

For the reasons stated, the FEC’s motion to dismiss should be denied.

Opposition to Supp. Motion to Dismiss 7

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Charles H. Bell, Jr.* 

Bell, McAndrews & Hiltachk, LLP 

455 Capitol Mall, Suite 801 

Sacramento, CA 95814 

Tel: (916) 442-7757 

Fax: (916) 442-7759 

cbell@bmhlaw.com 

Counsel for California Republican Party 

and Republican Party of San Diego County

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO0041 

Richard E. Coleson* 

Clayton J. Callen* 

Kaylan L. Phillips* 

BOPP, COLESON & BOSTROM

1 South Sixth Street 

Terre Haute, IN 47807-3510 

812/232-2434 telephone 

812/234-3685 facsimile 

Lead Counsel for all Plaintiffs 

*Pro Hac Vice

Opposition to Supp. Motion to Dismiss 8

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