UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 

_______________________________________

)

STOP RECKLESS ECONOMIC ) Civ. No. 1:14-397 (AJT-IDD)

INSTABILITY CAUSED BY DEMOCRATS, )

et al. )

)

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_______________________________________)

MOTION OF PLAINTIFFS AND PUTATIVE PLAINTIFF-INTERVENOR 

AMERICAN FUTURE PAC SEEKING LEAVE FOR AMERICAN FUTURE 

PAC TO JOIN THE SUIT PURSUANT TO FED. R. CIV. P. 21 

Plaintiffs and putative Plaintiff-Intervenor American Future PAC (“American Future”) 

respectfully move that this Court permit American Future to join this suit pursuant to Rule 21, or 

in the alternative to intervene in this suit pursuant to Rule 24(b)(1)(B). 

American Future wishes to join Stop PAC’s pending constitutional challenge to the sixmonth waiting period that certain political committees face before they may contribute the full 

statutory amount of $5,000 to a candidate. See 2 U.S.C. § 441a(a)(1)(A), (a)(2)(A), (a)(4). 

Plaintiffs seek to permit such joinder due to the FEC’s repeated contention that, once Stop PAC 

has been registered for six months and this waiting period no longer applies to it (which will 

occur on September 11, 2014), it will lose its standing to maintain its challenge. 

American Future has expressed and hereby memorializes its unconditional commitment 

to:

● immediately begin accepting and responding to discovery requests as if it were a party; 

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● accept service of all documents, filings, and discovery requests by e-mail to its 

undersigned counsel, and to waive until the close of discovery the additional three-day 

extension to the deadline for responding to materials that are not personally served; and 

● provide objections, written responses, and responsive documents to all written discovery 

within 6 days of receiving them. 

American Future also has submitted as exhibits to this motion their initial discovery 

responses under Fed. R. Civ. P. 26(a)(1), as well as responses to the FEC’s discovery requests to 

Stop PAC—including interrogatories, requests for admission, and request for production—as 

those requests would apply to American Future. 

Plaintiffs met and conferred by telephone on August 19, 2014. Defendant Federal 

Election Commission has refused to consent to this motion, unless all parties agree to extend the 

deadline for discovery and summary judgment motions by 128 days (over four months—the 

period between the filing of the complaint and the filing of the instant motion). 

Plaintiffs and American Future do not believe that extending the discovery schedule is 

necessary, but would agree to an extension of no more than 7 days. Waiting over four months

before joining American Future would defeat the point of its joinder, because only a few weeks 

would remain before its six-month waiting period expired and its claims, too, became moot in 

the FEC’s view. Likewise, requiring American Future to re-file Stop PAC’s constitutional 

challenge in its own name in an independent suit would be wasteful and duplicative; 

unnecessarily delay resolution of this issue; and ultimately leave American Future in the same 

position in which Stop PAC now finds itself—nearing the end of its six-month waiting period 

before dispositive briefs are due. 

Dated this 27th day of August 2014. 

Respectfully submitted, 

/s/ Dan Backer

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Dan Backer, Esq. 

Virginia State Bar # 78256

DB CAPITOL STRATEGIES PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

Phone: (202) 210-5431

Fax: (202) 478-0750

E-mail: DBacker@DBCapitolStrategies.com

Attorney for Plaintiffs

/s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

/s/ Jerad Najvar*

Jerad Najvar

NAJVAR LAW FIRM

4151 Southwest Freeway

Suite 625

Houston, TX 77027

E-mail: jerad@najvarlaw.com

Attorney for Putative Plaintiff-Intervenor 

American Future PAC

*Motion for pro hac vice admission 

forthcoming

CERTIFICATE OF SERVICE

I, Dan Backer, hereby certify that on this 27th day of August 2014, I did cause a true and 

complete copy of the foregoing Motion of Plaintiffs and Putative Plaintiff-Intervenor American 

Future PAC Seeking Leave for American Future PAC to Join the suit Pursuant to Fed. R. Civ. P. 

21, supporting memorandum, exhibits, waiver of hearing, and proposed order to be electronically 

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filed with the Clerk of Court using the CM/ECF system, which will then send a notification of 

such filing to the following counsel for the plaintiff: 

Kevin Deeley

Harry J. Summers

Holly J. Baker

Kevin P. Hancock

Esther D. Gyory

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

This same day, I also have caused a copy of those documents to be delivered to counsel 

for defendant at the address below, to be either handed to counsel, left with a clerk at counsel’s 

office or, if no one is in charge, left in a conspicuous place at the office: 

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

/s/ Dan Backer

Dan Backer

Virginia State Bar # 78256

Attorney for Plaintiffs

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 

_______________________________________

)

STOP RECKLESS ECONOMIC ) Civ. No. 1:14-397 (AJT-IDD)

INSTABILITY CAUSED BY DEMOCRATS, )

et al. )

)

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_______________________________________)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ AND PUTATIVE 

PLAINTIFF-INTERVENOR AMERICAN FUTURE PAC’S MOTION

SEEKING LEAVE FOR AMERICAN FUTURE PAC TO JOIN THE 

SUIT PURSUANT TO FED. R. CIV. P. 21

Introduction

Plaintiff Stop PAC is challenging the statutory six-month waiting period that certain 

political committees face before being able to fully exercise their fundamental First Amendment 

rights of speech and association by making contributions to federal candidates. On September 

11, 2014, Stop PAC’s six-month waiting period will be over, and the FEC repeatedly has 

contended that Stop PAC’s constitutional challenge to the waiting period will be moot at that 

point. 

Stop PAC contends that the mootness doctrine does not apply, because its claims are 

capable of repetition, yet will evade review; it will demonstrate that this exception to the 

mootness doctrine applies in constitutional challenges to election-related laws such as this, even 

when the plaintiff does not assert that it personally will face the challenged restrictions again. 

See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 410 U.S. 752, 

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756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972); Moore v. Ogilvie, 394 U.S. 

814, 816 (1969); see also Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir 2005). Based on 

these well-established, binding Supreme Court precedents, Stop PAC’s challenge to the electionrelated statutes at issue here will remain justiciable, despite the expiration of its six-month 

waiting period. Indeed, the Fifth Circuit recently held that a similar challenge to a state 

campaign finance law that imposed a comparable waiting period on newly formed political 

committees remained justiciable, even though the plaintiff’s waiting period had elapsed, 

precisely because other entities remained subject to the law. It held, “[I]n election law cases 

such as this one, where (1) the state plans on continuing to enforce the challenged provision, and 

(2) that provision will affect other members of the public, the exception [to the mootness 

doctrine] is met,” even if the plaintiff itself will never again be subject to the law. Catholic 

Leadership Coalition of Tex. v. Reisman, No. L3-50582, 2014 U.S. App. LEXIS 15558, at *29-

30 (5th Cir. Aug. 12, 2014). 

The FEC has not agreed with Plaintiffs’ interpretation of the mootness doctrine. And 

either this Court, or a higher court, ultimately may reject Plaintiffs’ position. Consequently, 

Putative Plaintiff-Intervenor American Future PAC seeks to join this litigation to pursue the 

exact same constitutional challenges that have been pending since the inception of this suit. 

 During the parties’ meet-and-confer session on this motion, the FEC refused to consent to 

American Future’s joinder unless the Plaintiffs and American Future agreed to extend the 

deadlines for discovery and filing summary judgment motions by 128 days—the amount of 

time that had then elapsed since the filing of this suit. American Future registered with the FEC 

on August 5, 2014, and has existed for about three weeks. The FEC contends that it needs to 

take discovery concerning American Future for roughly six times as long as American Future

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has existed. American Future was formed by two people (identified in its Rule 26(a)(1)(A) 

disclosures, attached as an exhibit to this motion), and has had less than $10,000 in assets 

throughout its entire existence. There is hardly any basis for extending the discovery period at 

all, much less granting a four month extension that literally would double the length of this suit. 

Anticipating the FEC’s recurring claims of prejudice and limitless appetite for 

information, American Future has unilaterally and unconditionally declared that it will:

● immediately begin accepting and responding to any discovery requests, as it if 

were a party; 

● waive the customary three-day extension to response deadlines for materials 

served by e-mail, until the close of discovery; 

● provide objections, written responses, and documents in response to discovery 

requests within 6 days (or less, if required by this Court) of receiving them, rather 

than staggering the provision of objections and responses, as permitted by local 

rules; 

● immediately provide Rule 26(a)(1)(A) disclosures (attached as an exhibit to this 

Motion); and 

● immediately respond to all outstanding discovery requests that the FEC has 

served on Plaintiff Stop PAC, as they would apply to American Future (responses 

also attached as an exhibit to this Motion). 

If this Court chooses to extend the discovery period in this case, it should be for no more 

than a week. As the instant motion demonstrates, Stop PAC’s challenge to the six-month 

waiting period, which American Future seeks to pursue, is inherently time-sensitive. If this 

Court extends the deadlines for discovery and summary briefing by 128 or more days, as the 

FEC requests, American Future will be near the end of its six-month waiting period by the time 

discovery closes. It will occupy basically the same position as that in which Stop PAC presently 

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finds itself. Its claim (in the FEC’s view) will be nearly moot, Plaintiffs will have to attempt to 

find and join yet another newly formed PAC, and the cycle will simply recur.1

This case presents pure questions of constitutional law that turn on legislative facts, and 

does not depend on anything specific to the particular plaintiffs raising the challenges. Indeed, 

particularly because campaign finance laws operate in a constitutionally sensitive area, the FEC 

already should be well aware of its factual basis for limiting the exercise of newly formed 

committees’ constitutional rights. Its justification for the six-month waiting period cannot turn 

on any facts regarding these particular plaintiffs or American Future, which were not even 

formed until years after that waiting period was enacted. 

This Court chose to give the FEC a chance to take discovery to develop “an adequate 

factual record” to facilitate “proper consideration of plaintiff’s constitutional claims.” Order, 

Doc. #33, at 1 (June 18, 2014). The FEC has received documents, interrogatory responses, and 

admissions from each plaintiff, as well as documents from Niger Innis and Niger Innis for 

Congress. It also has noticed six depositions. This Court should not permit the FEC to abuse the 

discovery process by twisting it into a tool for preventing adjudication on the merits of this 

constitutional challenge. This Court should permit American Future to join this suit to eliminate 

any possible threat to its continued justiciability and reject the FEC’s attempts to extend the 

deadlines for discovery and summary judgment. 

American Future Wishes to Join Stop PAC’s Challenge to the Six-Month

Waiting Period on Contributing the Maximum Statutory Amount to Candidates

1 Even if the FEC were to come to its senses, and request a less shocking extension of only 30 or 

60 days as an ostensible “compromise,” that would still substantially undermine this Court’s 

ability to adjudicate American Future’s challenge to its six-month waiting period before its 

expiration, and unnecessarily hasten the need to join yet another new plaintiff. 

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Federal law permits a political committee that has received 51 or more contributions, 

contributed to five or more candidates, and been registered with the FEC for at least six months, 

see 2 U.S.C. § 441a(a)(4), to contribute $5,000 per election to a federal candidate, id. 

§ 441a(a)(2)(A). In contrast, a materially identical committee that also has received 51 or more 

contributions and contributed to five or more candidates, but has been registered for less than six 

months, may contribute only $2,600 per election to a federal candidate. Id. § 441a(a)(1)(A); see 

also 78 Fed. Reg. 8,530, 8,532 (Feb. 6, 2013) (adjusting statutory limit for inflation). Thus, 

federal law imposes a six-month waiting period before political committees that have received 

51 or more contributions and contributed to five or more candidates may fully exercise their First 

Amendment rights by contributing the maximum, statutorily authorized amount to candidates.2

 

Stop PAC has received contributions from more than 51 persons and has contributed to 

five candidates, but has been registered for less than six months. See Am. Compl., ¶ 19. Thus, 

Stop PAC may contribute no more than $2,600 per election to each candidate. Stop PAC has 

contributed $2,600 to Congressman Joe Heck in connection with the upcoming November 2014 

general election, and wishes to be able to contribute to him additional funds from its account in 

connection with that race, id. ¶¶ 28-33. The only thing preventing Stop PAC from being able to 

legally do so is the six-month waiting period. 

2 The illogic of this waiting period is underscored by the fact that, throughout the first six months 

of such a committee’s existence, it may contribute $32,400 to a national political party 

committee and $10,000 to a state political party committee and its local affiliates. See 2 U.S.C. 

§ 441a(a)(1)(B), (D); see also 78 Fed. Reg. at 8,532 (adjusting national party limit for inflation). 

Once that committee has existed for six months, however, the amount it may contribute to 

national parties is slashed to $15,000, see 2 U.S.C. § 441a(a)(2)(B), while the amount it may 

contribute to state and local parties is cut to $5,000, id. § 441a(a)(2)(C). Thus, while such a 

committee must wait six months before being able to fully exercise its right to contribute to 

candidates, its ability to contribute to local, state, and national parties is immediately reduced at 

that point. 

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Stop PAC has challenged the constitutionality of this waiting period, on the grounds that 

imposing differing limits on materially identical committees, based solely on how long they have 

been registered with the FEC, violates the Equal Protection Clause, id. ¶¶ 44-50, and that 

imposing a six-month waiting period on the full exercise of speech and associational rights 

violates the First Amendment, id. ¶¶ 52-55. Stop PAC’s waiting period will expire on 

September 11, 2014, however, and the FEC repeatedly has contended that Stop PAC’s claims 

will be moot and non-justiciable at that point.3 

American Future PAC is a materially identical political committee that wishes to 

continue pursuing Stop PAC’s claims. It seeks to challenge the same provisions of federal law, 

under the same constitutional amendments, on the same grounds. As the attached exhibits 

demonstrate, it has existed for about three weeks, has handled less than $10,000 in assets, and is 

run by two people. There is no need to either prolong this case with extensive further discovery, 

or delay adjudication of these constitutional challenges, by allowing Stop PAC’s standing to (in 

the FEC’s view) evaporate, and require American Future to initiate a whole new suit. 

“[R]efusing to allow the intervenors to continue [the case] would lead to senseless delay, because 

a new suit would inevitably bring the parties, at a much later date, to the point where they are 

now.” Benavidez v. Eu, 34 F.3d 825, 830-31 (9th Cir 1994); see also Fuller v. Volk, 351 F.2d 

323, 329 (3d Cir. 1965) (“By allowing the suit to continue with respect to the intervening party, 

the court can avoid the senseless ‘delay and expense of a new suit, which at long last will merely 

bring the parties to the point where they now are.’”) (quoting Hackney v. Guaranty Trust Co., 

117 F.2d 95, 98 (2d Cir. 1941)). 

3 See, e.g., Joint Proposed Discovery Plan, Doc. #34, at 18 (“It is the FEC’s position that Claims 

1 and 2 of the Complaint will become moot when Stop PAC becomes a multicandidate PAC on 

September 11, 2014.”) (July 2, 2014); see also FEC Amended Answer, Doc. #49, at 12 (July 24, 

2014) (“Plaintiffs’ claims are moot.”). 

6

 

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Courts Routinely Allow New Parties to Join Suits to Prevent Mootness

and Maintain Their Justiciability

This Court should allow American Future to join the suit to prevent it from becoming 

moot (in the FEC’s view), and alleviate the need for American Future to effectively reprise these 

proceedings from scratch by filing an independent suit (which, like this one, the FEC will seek to 

dismiss after a few months). When a litigant’s initially justiciable claim is at risk of becoming 

non-justiciable due to a potential loss of standing or mootness, a court generally should permit a 

new plaintiff, seeking to raise the same claim based on the same arguments, to continue the 

litigation to reach a judgment on the merits. In Mullaney v. Anderson, 342 U.S. 415, 416 (1952), 

a union and its Secretary-Treasurer sued to enjoin the Alaska Territorial Tax Commissioner from 

charging higher fees for fishing licenses to non-residents than resident fishermen. When the case 

reached the Supreme Court, the Commissioner challenged “the standing of the union and its 

Secretary Treasurer to maintain th[e] suit.” Id. 

Attempting to alleviate the justiciability concern, the union moved to add two of its nonresident members as plaintiffs under Rule 21 to continue pursuing the same claims. Id. at 416-

17. The Court granted the motion because the new plaintiffs’ joinder “can in no wise embarrass 

the defendant,” and their joinder earlier in the suit would not have “affected the course of the 

litigation.” Id. at 417. It concluded, “To dismiss the present petition and require the new 

plaintiffs to start over in the District Court would entail needless waste and runs counter to 

effective judicial administration.” Id. 

The Government itself has joined suits in order to preserve their justiciability and allow 

them to be adjudicated on the merits, despite jurisdictional deficiencies in the plaintiffs’ claims. 

In California Credit Union League v. City of Anaheim, 95 F.3d 30 (9th Cir. 1996) (“Anaheim I”), 

vacated sub nom. City of Anaheim v. Cal. Credit Union League, 520 U.S. 1261 (1997)

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(“Anaheim II”), the plaintiff credit union prevailed both at trial and on appeal on its claim that 

federal law protected its employees from having to pay California’s transient occupancy tax. 

The Supreme Court vacated the judgment for reconsideration in light of its holding in another 

case that the Tax Injunction Act prohibited such entities from suing to enjoin a state tax unless 

the Government itself joined the suit as a plaintiff. See Anaheim II, 520 U.S. at 1261 (citing 

Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S. 821 (1997)). 

On remand, the Ninth Circuit allowed the Government to join the case as a plaintiff under 

Rule 21 to preserve its justiciability and allow entry of judgment on the merits. Cal. Credit 

Union League v. City of Anaheim, 190 F.3d 997, 999 (9th Cir. 1999) (“Anaheim III”). The court 

held that joinder under Rule 21 was appropriate “when the party seeking joinder requests the 

same remedy as the original party and offers the same reasons for that remedy and earlier joinder 

would not have affected the course of the litigation.” Id. It permitted the Government to join as 

a plaintiff, “because it is requesting the same remedy as the [original plaintiff] and offers the 

same reasons for that remedy and because earlier joinder by the United States would not have 

affected the course of this litigation.” Id. Critically, Anaheim was not a class action, and the 

court’s reasoning did not turn on the fact that it was the Government (as opposed to a private 

litigant) which sought to intervene. Cf. Atkins v. State Board of Education, 418 F.2d 874, 875

(4th Cir. 1969) (per curiam) (remanding dismissed lawsuit so that the district court could allow 

plaintiffs with standing to intervene to litigate constitutional claims brought by the original 

plaintiff, who was found to lack standing). 

Consistent with these precedents, Wright & Miller urges courts to allow the substitution 

of “plaintiffs with live claims for former plaintiffs whose claims have been mooted” to “preserve 

the energy invested in the original action” while avoiding the “burdensome procedures of class 

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actions.” 13C Wright & Miller, Federal Practice & Procedure, Civil § 3533.9 (3d ed.). 

Elsewhere, the treatise reemphasizes that “a court may cooperate in thwarting mootness by such 

devices as allowing intervention or taking other steps to preserve an important question for 

present decision.” 13B id. § 3533.1.

These authorities squarely support permitting American Future to join in Plaintiff Stop 

PAC’s claims in this suit. American Future seeks to challenge the same provisions of federal 

law as Stop PAC, under the same constitutional provisions, based on the same arguments, and 

seeks the same remedy. See Anaheim III, 190 F.3d at 999. Like Stop PAC, it has received 

contributions from at least 51 people and contributed to at least five candidates. See Declaration 

of Jerad Najvar, ¶¶ 4, 6, 9 (attached as an Exhibit). It has contributed the maximum statutorily 

permitted amount of $2,600 to a candidate in connection with the upcoming November general 

election, and possesses additional funds that it wishes to contribute to that candidate. Id. ¶¶ 4, 7-

8. But for 2 U.S.C. § 441a(a)(4)’s six-month waiting period, American Future would have 

contributed those additional funds. Id. ¶ 8. Because American Future seeks only to continue 

litigating Stop PAC’s claims, its joinder will neither “embarrass” the Government nor materially 

alter the course of the litigation. Mullaney, 342 U.S. at 416; Anaheim III. 190 F.3d at 999. 

Requiring American Future to initiate a separate suit is an inadequate substitute for 

joinder. The FEC has taken the position that the as-applied challenge to the disparate 

contribution limits, see id. § 441a(a)(1)(A), (a)(2)(A), and six-month waiting period, id. 

§ 441a(a)(4), at issue here will become moot once a plaintiff committee has existed for six 

months, see supra note 3. If American Future files a new suit, the FEC will have 60 days to file 

an Answer, Fed. R. Civ. P. 12(a)(2), and additional time will pass before a scheduling order is 

entered and the discovery that the FEC inevitably will demand will be complete. After several 

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months of unnecessary and duplicative litigation, American Future will find itself in the same 

position in which Stop PAC now stands—approaching the end of its six-month waiting period 

and needing to introduce yet another new plaintiff (over the FEC’s likely objection) to preclude 

any challenges (however misguided) to the justiciability of its suit and obtain an adjudication on 

the merits. This Court should not countenance such a wasteful and futile course of action. 

Mullaney, 342 U.S. at 416 (permitting joinder of new plaintiffs to prevent “needless waste,” 

promote “effective judicial administration,” and alleviate the need to re-litigate the same claims 

in a different suit); Wright & Miller, supra § 3533.9. 

American Future Satisfies the Requirements for Joinder Under Rule 21

Rule 21 provides, “On motion or on its own, the court may at any time, on just terms, 

add . . . a party.” Fed. R. Civ. P. 21. Rule 20 further specifies that persons “may join in one 

action as plaintiffs” if: [1] they “assert any right to relief jointly, severally, or in the alternative 

with respect to . . . the same transaction, occurrence, or series of transactions or occurrences,” 

and [2] the case involves “any question of law or fact common to all plaintiffs.” Id. 

R. 20(a)(1)(A)-(B). Regarding the first element, the “transaction or occurrence test. . . permit[s] 

all reasonably related claims for relief by . . . different parties to be tried in a single proceeding. 

Absolute identity of all events is unnecessary.” Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir. 

1983) (per curiam) (quotation marks omitted). Claims are sufficiently “related” if there is a 

“logical relationship” between them. Sanford v. Virginia, No. 3:08-CV-835, 2009 U.S. Dist. 

LEXIS 52777, at *8 (E.D. Va. June 22, 2009). 

Under these rules, courts have “wide discretion concerning the permissive joinder of 

parties.” Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.6 (4th Cir. 2007). “[T]he 

impulse is toward entertaining the broadest possible scope of action consistent with fairness to 

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the parties; joinder of claims, parties, and remedies is strongly encouraged.” United Mine 

Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) (emphasis added). Joinder helps “promote 

trial convenience and expedite the final determination of disputes, thereby preventing multiple 

lawsuits.” Saval, 710 F.2d at 1031 (quotation marks omitted). 

American Future satisfies the requirements for joinder. First, it seeks to engage in the 

same conduct as Stop PAC by contributing more than $2,600 to a candidate in connection with

an election, and contends that the same provisions of federal law violate its same constitutional 

rights in the same ways, for the same reasons. American Future therefore seeks to assert rights 

arising out of the same series of occurrences as Stop PAC—the FEC’s allegedly unconstitutional 

enforcement of the discriminatory contribution limits set forth in 2 U.S.C. § 441a(a)(1)(A) 

against newly formed political committees with at least 51 contributors that have contributed to 

five or more candidates (and Congress’ enactment of that unconstitutionally overbroad law). See 

Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 618 (4th Cir. 2001) (holding that plaintiffs who 

each allege that the same defendant engaged in “the same or similar types of violations” of their 

rights could join their claims together under Rule 20(a)). 

Moreover, American Future seeks adjudication of the exact same “questions of law” as 

Stop PAC. Thus, American Future easily satisfies Rule 20(a)’s standards for permissive joinder, 

and this Court should permit it to join in Stop PAC’s claims under Rule 21. Allowing American 

Future to join this suit will further Rule 20’s goals of “avoiding a multiplicity of suits and 

expediting the final determination of litigation.” Rumbaugh v. Winifrede R. Co., 331 F.2d 530, 

537 (4th Cir. 1964); see also Saval, 710 F.2d at 1031. Even if allowing American Future to join 

in Stop PAC’s claims will somewhat expand the scope of this litigation, “an even greater 

expenditure of resources, and correspondingly greater inefficiency, would be created if 

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[American Future’s claim] were to be tried separately, as a significant repetition of attorney 

effort . . . [and] a corresponding increase in the use of court time” would be required. Sanford, 

2009 U.S. Dist. LEXIS 52777, at *11. 

Further Time for Discovery Is Unnecessary

Finally, American Future’s motion for joinder is timely, and does not warrant extending 

the time for discovery and delaying the deadlines for summary judgment briefs by more than a 

week, if at all. American Future’s motion to join this case is timely. The committee itself was 

formed on August 5, 2014. It collected its 51st contribution and contributed to five federal 

candidates within the past week or so. Thus, it has not unduly delayed in bringing this motion. 

Although several months have passed since the filing of this suit, motions to join new 

parties have been deemed timely “more than two years after commencement of the action, after 

trial, and even on appeal.” Gentry v. Smith, 487 F.2d 571, 580 (5th Cir. 1973); see also Spring 

Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980) (“Mere passage of time is but one factor 

to be considered in light of all the circumstances. The most important consideration is whether 

the delay has prejudiced the other parties.”). The whole point of this motion is to give the Court 

as much additional time as possible to adjudicate this case on the merits, despite the FEC’s 

contention that an entity’s challenge to the six-month waiting period will become moot once that 

period has elapsed. 

Even if Plaintiffs could have found another PAC sooner (before Stop PAC neared the end 

of its six-month waiting period) that both wished to join the suit and met the necessary 

requirements—that is, it was recently formed, had at least 51 contributors, and had contributed to 

five or more candidates—the suit’s justiciability (in the FEC’s view) would have been extended 

for a far shorter amount of time, and Plaintiffs would have needed to seek to add yet another new 

12

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plaintiff before the end of this year. Adding American Future at this point will extend the 

uncontested justiciability of this case into next year. Thus, the timing of this motion is not only 

reasonable, but largely unavoidable given the nature of the challenged waiting period. 

American Future’s unprecedented unilateral concessions minimize any potential 

prejudice its joinder would create for the FEC, as well as any need to extend the discovery 

period. As noted above, American Future already has made its initial disclosures and responded 

to the discovery requests the FEC previously served on Stop PAC (as if those questions applied 

to American Future itself). It is willing to accept any further discovery requests immediately by 

e-mail, and will serve all responses within 6 days (without claiming the additional three-day 

period based on manner of service). American Future has existed for about three weeks, has 

only a few thousand dollars in assets, and has only two officers or employees; it has no evidence, 

facts, or information necessary to resolving the constitutional claims in this case. Thus, the FEC 

cannot credibly contend to suffer any prejudice from American Future’s joinder; it certainly does 

not need an additional 128 days of discovery, as it demanded during the meet-and-confer 

session.4

4 In the alternative, if this Court concludes that permissive intervention under Fed. R. Civ. P. 

24(b), rather than joinder under Fed. R. Civ. P. 21, is the appropriate mechanism for allowing 

American Future to pursue its claims in this suit, movants respectfully request such relief in the 

alternative. Permissive intervention is appropriate where the putative intervenor “has a claim or 

defense that shares with the main action a common question or fact,” Fed. R. Civ. P. 24(b)(1)(B), 

and intervention will not “unduly delay or prejudice the adjudication of the original parties’ 

rights,” id. R. 24(b)(3). American Future easily satisfies the first prong, because it wishes to 

pursue the same constitutional challenge that Stop PAC has been litigating for the past five 

months. And, for the reasons discussed in the main text above, American Future’s motion is 

neither untimely nor prejudicial. 

 The Fourth Circuit has held that new litigants may intervene in a case without satisfying the 

technical requirements of Fed. R. Civ. P. 24(c), unless prejudice to the opposing parties would 

result. See Spring Constr. Co. v. Harris, 614 F.2d 374, 376-77 (4th Cir. 1980) (holding that, 

rather than denying intervention “when the moving party fails to comply strictly with the 

requirements of Rule 24(c), the proper approach is to disregard non-prejudicial technical 

defects”). This Court may grant American Future’s motion, notwithstanding Rule 24(c), because 

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CONCLUSION

For these reasons, movants respectfully ask that this Court permit American Future to 

join Stop PAC’s claims in this case. 

Respectfully submitted, 

Dated August 27, 2014 /s/ Dan Backer

Dan Backer, Esq. 

Virginia State Bar # 78256

DB CAPITOL STRATEGIES PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

Phone: (202) 210-5431

Fax: (202) 478-0750

E-mail: DBacker@DBCapitolStrategies.com

Attorney for Plaintiffs

/s/ Michael T. Morley

Michael T. Morley, Esq. 

Virginia State Bar # 65762

COOLIDGE-REAGAN FOUNDATION

1629 K Street, Suite 300

Washington, DC 20006

Phone: (202) 603-5397

Fax: (202) 331-3759

E-mail: Morley@coolidgereagan.org

Attorney for Plaintiffs and Putative PlaintiffIntervenor American Future PAC

/s/ Jerad Najvar*

Jerad Najvar

NAJVAR LAW FIRM

4151 Southwest Freeway

Suite 625

Houston, TX 77027

E-mail: jerad@najvarlaw.com

Attorney for Putative Plaintiff-Intervenor 

American Future PAC

*Motion for pro hac vice admission 

forthcoming

the FEC has actual notice of both this in-the-alternative request and American Future’s proposed 

claims, and American Future can submit a Second Amended Complaint if this Court so orders. 

Id. at 377. 

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 

_______________________________________

)

STOP RECKLESS ECONOMIC ) Civ. No. 1:14-397 (AJT-IDD)

INSTABILITY CAUSED BY DEMOCRATS, )

et al. )

)

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_______________________________________)

MOTION OF PLAINTIFFS AND PUTATIVE PLAINTIFF-INTERVENOR 

AMERICAN FUTURE PAC SEEKING LEAVE FOR AMERICAN FUTURE 

PAC TO JOIN THE SUIT PURSUANT TO FED. R. CIV. P. 21 

SUPPLEMENT TO CERTIFICATE OF SERVICE

I, Dan Backer, hereby certify that on this 27th day of August 2014, I personally delivered 

and served a true and complete copy of the Motion of Plaintiffs and Putative Plaintiff-Intervenor 

American Future PAC Seeking Leave for American Future PAC to Join the Suit Pursuant to Fed. 

R. Civ. P. 21, supporting memorandum, exhibits, waiver of hearing, and proposed order upon 

counsel for the plaintiff at the following address: 

Kevin Deeley

Harry J. Summers

Holly J. Baker

Kevin P. Hancock

Esther D. Gyory

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

1

Case 1:14-cv-00397-AJT-IDD Document 51 Filed 08/27/14 Page 1 of 2 PageID# 553
I delivered the specified documents at 3:55 P.M., Eastern Standard Time. Pursuant to 

FEC policy, the FEC’s security officers would not permit me to go upstairs to the Office of 

General Counsel (“OGC”), and would not call OGC to advise them of my attempt to serve these

filings. I called and e-mailed Attorneys Baker and Hancock from the lobby, but did not connect 

with them and left voicemail messages for Attorney Baker and on the OGC main number. 

Pursuant to FEC policy, the security guards’ directions, and Fed. R. Civ. P. 5(b)(2)(B)(i), I 

personally delivered the specified documents to Mr. Jim Wilson, a clerk from OGC’s mailroom. 

Attorney Deeley, returning my voicemail to OGC, called and I advised him that the FEC’s 

mailroom was in possession of the documents. Consequently, service has been effected

pursuant to Fed. R. Civ. P. 5(b)(1), (b)(2)(B)(i).

/s/ Dan Backer

Dan Backer

Virginia State Bar # 78256

Attorney for Plaintiffs

2

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