UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) OPPOSITION

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR LEAVE TO FILE REPLY MEMORANDUM OR, 

IN THE ALTERNATIVE, TO FILE SURREPLY 

On December 22, 2008, plaintiffs moved for leave to file a reply brief in support of their 

first and second motions in limine or, alternatively, for leave to file a surreply in opposition to 

the Commission’s proposed findings of fact, and they attached their fifteen-page proposed brief. 

(Doc. 64.) Plaintiffs’ motion for leave to file should be denied. The Court’s order consolidating 

plaintiffs’ motions with briefing on the parties’ proposed facts precludes the filing of the 

proposed memorandum. 

BACKGROUND 

This case was brought pursuant to 2 U.S.C. § 437h, a provision of the Federal Election 

Campaign Act of 1971 which provides for judicial review of certain constitutional questions by 

the court of appeals sitting en banc. Under section 437h, this Court makes findings of fact and 

then certifies the constitutional questions to the court of appeals for decision. 

The parties negotiated, and the Court adopted, a schedule which provided for expedited 

discovery, followed by cross-filing of the parties’ proposed findings of fact and “responses” and 

“replies” thereto. (Docs. 27, 42, and 43 and Minute Orders (Oct. 2 and 17, 2008).) This 

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schedule provided for three rounds of filings related to the facts: proposed facts on October 28, 

2008, “responses” to the proposed facts on November 21, 2008, and “replies” regarding the facts 

on December 12, 2008. (Docs. 44-45, 53-55, 57-2, 60, 62-63.) 

Consistent with the case schedule, the Commission filed its Response to Plaintiffs’ 

Proposed Findings of Fact and a memorandum in support of its response — including 

evidentiary objections — on November 21, 2008. (Docs. 55, 57-2.) In contrast, plaintiffs filed 

not only a response to the Commission’s facts on that date, but also some additional untimely 

proposed findings of fact captioned as “rebuttal facts” and two “motions in limine” objecting to 

some of the Commission’s proposed findings of fact and supporting exhibits. (Docs. 51-54.) 

Plaintiffs’ “motions” would have shortened the time for the Commission’s response to plaintiffs’ 

arguments by a week — from December 12 to December 5 — and would have unilaterally 

allowed plaintiffs to have an additional round of briefing (as “replies” in support of their 

“motions”) regarding the parties’ proposed findings of fact. The Commission negotiated with 

plaintiffs for an extension of time to respond to plaintiffs’ extra filings and plaintiffs consented to 

a two-business-day extension for the Commission’s oppositions to plaintiffs’ two “motions in 

limine,” i.e., until December 9, 2008. The Commission then filed an unopposed motion for such 

an extension. (Doc. 59.) 

The Court held that plaintiffs’ “motions” were not “motions in limine at all,” and that the 

“motions will be considered arguments — objections to the Court’s consideration of the material 

to which they refer. . . .” (Order, Dec. 9, 2008, Doc. 61.) The Court thus ruled that the 

Commission “may respond to those arguments in the context of its general briefing on the 

motion for certification and need not respond separately to the motions,” and the Court 

accordingly denied the motion for an extension of time as moot. (Id.) Briefing therefore 

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concluded as scheduled on December 12, 2008.1

 

ARGUMENT 

I. Plaintiffs’ Motion Is Foreclosed By The Court’s Order Of December 9 

Plaintiffs’ request to file a “reply” regarding their motions in limine is foreclosed by the 

Court’s Order of December 9, which correctly recognized that plaintiffs’ motions in limine 

merely contained arguments regarding the material cited in the Commission’s proposed facts that 

should have been included in the existing agreed-upon briefing schedule for such arguments. 

(See Order, Dec. 9, 2008, Doc. 61.) The joint report and proposed schedule specified only three 

filings on predetermined dates (proposed findings of fact followed by two rounds of briefing), 

and did not provide for any evidentiary motions, let alone motions that would alter the proposed 

comprehensive briefing schedule. (Doc. 27 at 2.) If plaintiffs had wanted a fourth filing, they 

could have sought to have one included in the schedule, but they did not. 

Plaintiffs argue (at 2) that they have had an insufficient opportunity to make arguments 

regarding the issue of legislative facts, but offer no explanation why they did not further develop 

their contentions in the briefs allotted for such argument.2

 Plaintiffs did, in fact, make arguments 

regarding judicial treatment of “legislative facts” in their response to the Commission’s facts. 

(See Plaintiffs’ Brief in Response to the FEC’s Proposed Findings of Fact (Doc. 54) 

at 12 n.1, 13.) Plaintiffs thus cannot claim to be surprised that the Commission has argued that 

 

1

 As indicated in the Commission’s Motion for Entry of Protective Orders (Doc. 46 at 5), 

the Commission will be seeking leave to file supplemental findings of fact based on new 

documents obtained through contested discovery motions. The documents related to the 

protective orders have been obtained and the proceedings related to third-party subpoenas in the 

Central District of California and before Judge Urbina in this District remain pending. 

2

 In addition, while plaintiffs claim that their proposed brief is limited to the issue of 

“legislative facts,” plaintiffs’ brief contains responses to other arguments as well. 

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the concept of legislative facts supports its proposed facts.3

 Plaintiffs’ “motions in limine” and 

response to the Commission’s proposed findings of fact totaled 215 pages, and plaintiffs made a 

strategic choice not to devote more of those pages to argument regarding legislative facts. 

Plaintiffs’ argument (Mot. at 2) that the organization of the Commission’s “reply” 

briefing supports their motion is similarly unavailing. Plaintiffs contend that “[b]ecause the FEC 

briefed the issues raised in Plaintiff’s motions separately from other issues, Plaintiffs believe it 

makes the most sense to treat those documents as responses to the original motions, and the 

attached memorandum as a reply memorandum under Local Rule 7(d).” (Id.) It is true that for 

the convenience of the Court, the Commission responded to some of the arguments raised in the 

“motions in limine” in separate documents that followed the organization created by plaintiffs, 

but the Commission’s main discussion of legislative facts to which plaintiffs now seek to 

respond was contained in the Commission’s primary memorandum in support of its “reply.” 

(FEC’s Mem. in Support of Reply Regarding Proposed Findings of Fact at 2-13 (Doc. 63).) The 

fact that the Commission organized other arguments to track the arguments made in the “motions 

in limine” does not support plaintiffs’ request for additional briefing. The Court’s Order of 

December 9 has already rejected plaintiffs’ request to place form over substance. 

 

3

 The parties have used the term “legislative facts” throughout this litigation. When the 

parties disagreed in the Joint Scheduling Report over the number of depositions that should be 

allowed, for example, the Commission noted that “there are a number of questions presented by 

this case that demand a development of various legislative facts, including a demonstration that 

unlimited contributions to a committee making independent expenditures pose a danger of 

corruption and its appearance.” (Doc. 27 at 4.) Plaintiffs noted in response, inter alia, that 

“[e]ven if the FEC decides it is necessary to depose all six named Plaintiffs, it would still have 

four additional depositions to establish the ‘legislative facts’ to which it refers.” (Doc. 27 at 5.) 

Similarly, plaintiffs issued a document request to the Commission on July 22, 2008, requesting 

“documents containing any legislative facts,” and an interrogatory asking the Commission to 

“[i]dentify all persons with knowledge of legislative facts pertaining to the issues in this case and 

the legislative facts known to each.” (Plaintiffs’ First Set of Discovery Requests at 4, 6, 13, Gall 

Decl. Exh. BB (Doc. 51-30).) 

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Plaintiffs’ alternative request that the Court accept plaintiffs’ proposed brief as a surreply 

regarding the proposed facts should also be rejected. First, as explained above, plaintiffs had 

known for many months that the Commission was intending to support its case with legislative 

facts, and plaintiffs already addressed this issue in their “response” to the Commission’s 

proposed facts. Second, the parties filed only two rounds of briefs regarding the proposed 

findings of fact, so the ordinary standards related to raising issues in reply briefs are inapplicable 

to what the parties referred to here as “reply” briefs. Those briefs were the second briefs filed, 

and thus were more akin to ordinary opposition briefs. Under plaintiffs’ theory that they should 

be permitted to address arguments briefed for the first time by the Commission in its “reply” 

brief, the parties would be permitted to address a great number of the arguments made in the 

“reply” briefs. For example, the Commission would be permitted leave to file a surreply in 

response to plaintiffs’ new argument that the Court cannot consider legislative facts because 

plaintiffs have filed an as-applied challenge. (Plaintiffs’ Reply Mem. in Support of Their 

Proposed Findings of Fact for Certification at 6-11 (Doc. 62).) Again, if plaintiffs believed an 

additional round of briefing was necessary regarding the proposed facts, they should have sought 

to incorporate another round in the schedule.4

Plaintiffs have failed to demonstrate why they should be permitted to modify the existing 

briefing schedule in a way that unilaterally grants them a fourth round of filing related to the 

 

4

 Even if the Court were to review the “reply” filings in this matter under the ordinary 

standards for determining whether to permit a surreply by examining whether the Commission 

made new arguments, plaintiffs should not be permitted leave to file a surreply. “The matter 

must be truly new.” United States v. Baroid Corp., 346 F. Supp. 2d 138, 143 (D.D.C. 2004) 

(citation omitted). As explained above, plaintiffs had already addressed the legislative facts 

concept. See, e.g., Lightfoot v. District of Columbia, 2006 WL 54430 (D.D.C. 2006) (“Here, the 

defendants’ reply does not raise any new matters....”). Plaintiffs took a “litigation gamble” by 

not addressing legislative facts to the extent they now wish in their three rounds of filings, and 

plaintiffs’ failure “to put forward [their] best case in [their] opposition is not grounds for 

permitting a surreply.” Baroid Corp., 346 F. Supp. 2d at 144. 

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proposed facts. Plaintiffs’ motion should therefore be denied. 

II. If Plaintiffs’ Motion For Leave To File A Surreply Is Granted, The Commission 

Should Be Allowed To File A Similar Surreply 

As we have shown, plaintiffs’ motion for leave to file a surreply would allow plaintiffs to 

file four submissions on the proposed findings of fact, including two briefs opposing the 

Commission’s proposed findings of fact (initial response and surreply). The Commission would 

be prejudiced because, under the governing schedule, it has filed only three rounds of 

submissions, including only one opposition to plaintiffs’ proposed facts (Doc. 57-2), and it has 

not had an opportunity to respond to plaintiffs’ December 12, 2008 filings. 

Thus, if the Court grants plaintiffs’ motion, the Commission should be permitted to file a 

surreply of equivalent length. 

CONCLUSION 

For the foregoing reasons, plaintiffs’ motion for leave to file a reply brief in support of 

their first and second motions in limine or, alternatively, for leave to file a surreply in opposition 

to the Commission’s proposed findings of fact should be denied. 

Respectfully submitted, 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Robert W. Bonham III 

Robert W. Bonham III 

(D.C. Bar No. 397859) 

Senior Attorney 

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Case 1:08-cv-00248-JR Document 65 Filed 01/05/2009 Page 6 of 7
7

Steve N. Hajjar 

Graham Wilson 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: January 5, 2008 (202) 694-1650 

Case 1:08-cv-00248-JR Document 65 Filed 01/05/2009 Page 7 of 7
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, ET AL., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

[Proposed] ORDER 

Upon full consideration of plaintiffs’ motion for leave to file a reply memorandum in support 

of plaintiffs’ first and second motions in limine or, in the alternative, for leave to file a surreply 

memorandum in opposition to the defendant Federal Election Commission’s proposed findings of 

fact (Doc. 64), and having considered the defendant Federal Election Commission’s opposition 

thereto (Doc. __), 

It is hereby ORDERED that plaintiffs’ motion (Doc. 64) is DENIED. 

 

JAMES ROBERTSON 

United States District Judge 

 

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