IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

DAVID KEATING, et al. )

 ) 

 Plaintiffs, ) OPPOSITION 

 ) No. 09-5342 

 v. ) (Consolidated with 

 ) No. 08-5223) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ MOTION FOR IMMEDIATE 

ISSUANCE OF THE MANDATE 

In accord with D.C. Circuit Rule 41, this Court has ordered the Clerk to 

withhold issuance of the mandate until seven days after disposition of any timely 

petition for rehearing without prejudice to any party moving for expedited issuance 

of the mandate for good cause shown. If granted, plaintiffs’ motion will deprive 

the government of the default length of time specified by the Federal Rules of 

Appellate Procedure to decide whether to seek further review of the Court’s ruling, 

and whether to seek a stay of the mandate pending a petition for writ of certiorari. 

 As reflected in the Court’s March 26 order, Federal Rule of Appellate 

Procedure Rule 41 ordinarily provides that a court’s mandate will not issue until 

after the parties have had sufficient time to consider whether to seek rehearing or 

to move to stay the mandate pending the filing of a petition for a writ of certiorari. 

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Case: 09-5342 Document: 1241501 Filed: 04/23/2010 Page: 1
See Fed. R. App. P. 41, cmt. 1994 Amendment, Subdivision (a) (explaining that 

“[b]ecause the amendment to Rule 40(a) lengthens the time for filing a petition for 

rehearing in civil cases involving the United States from 14 to 45 days, the rule 

requiring the mandate to issue 21 days after the entry of judgment would cause the 

mandate to issue while the government is still considering requesting a rehearing”); 

Cf. Fed. R. App. P. 40, cmt. 1994 Amendment (explaining that amendment 

extending time to file a notice of appeal in cases involving the United States 

“recognizes that the Solicitor General needs to time conduct a thorough review of 

the merits of a case before requesting a rehearing”). 

The Commission should receive the usual number of days specified in the 

appellate rules to review the merits of the case and determine its future course of 

action, including what it may recommend to the Solicitor General regarding a 

petition for certiorari. In this Circuit, “[a] court may order immediate issuance of 

the mandate when satisfied (1) that [the] Court would not change its decision upon 

hearing, much less hear the case en banc, and (2) that there is no reasonable 

likelihood that the Supreme Court would grant review.” Johnson v. Bechtel Assocs 

Prof’l Corp., 801 F.2d 412, 415 (D.C. Cir. 1986) (internal quotation marks 

omitted). Plaintiffs have failed to establish that “there is no reasonable likelihood 

that the Supreme Court would grant review” if sought. Id. Plaintiffs’ motion 

should therefore be denied. 

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Case: 09-5342 Document: 1241501 Filed: 04/23/2010 Page: 2
 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Vivien Clair

 Vivien Clair 

Attorney 

vclair@fec.gov 

Steve Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

April 23, 2010 (202) 694-1650 

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Case: 09-5342 Document: 1241501 Filed: 04/23/2010 Page: 3
4 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

DAVID KEATING, et al. )

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CERTIFICATE 

 ) No. 09-5342 (Consolidated 

FEDERAL ELECTION COMMISSION ) with No. 08-5223) 

 ) 

 Defendant. ) 

CERTIFICATE OF SERVICE 

 I hereby certify that on this 23rd day of April 2010, I caused to be filed with 

the Clerk of the Court by the CM/ECF System the Defendant Federal Election 

Commission’s Opposition to Plaintiffs’ Motion for Immediate Issuance of the 

Mandate. I further certify that I also caused to the requisite number of paper 

copies of the Commission’s Opposition to be filed with the Clerk. 

 I also certify that on this date I caused an electronic copy of the 

Commission’s Opposition to be served on the following counsel of record through 

the Court’s CM/ECF System: 

 Steven M. Simpson, Esq. 

 Institute for Justice 

 901 N. Glebe Road, Suite 900 

 Arlington, VA 22203 

April 23, 2010 /s/ Vivien Clair 

 Attorney 

 Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 695-1650 

Case: 09-5342 Document: 1241501 Filed: 04/23/2010 Page: 4