UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA 

INGA L. PARSONS, et al.,

Plaintiffs,

v. No. 14-cv-1265 (JEB)

FEDERAL ELECTION COMMISSION,

Defendant.

REPLY IN SUPPORT OF

MOTION FOR CERTIFICATION ORDER

PURSUANT TO 2 U.S.C. § 437h.

Rule 1 of the Federal Rules of Civil Procedure provides that the Rules “shall be construed 

and administered to secure the just, speedy, and inexpensive determination of every action and 

proceeding.” For nearly three years, the Wagner plaintiffs and their counsel have been 

attempting to obtain a determination of the constitutionality of 2 U.S.C. § 441c as applied to 

individual contractors. Their case was scheduled to be heard by the court of appeals en banc on 

September 30, 2013, but it was removed from the calendar pending the final determination by 

the Supreme Court of McCutcheon v. FEC, 134 S. Ct. 1434, which was decided on April 2, 

2014. Wagner has been re-set for en banc oral argument on September 30, 2014.

As plaintiffs’ motion explained, they and their counsel became concerned that, although

Wagner was not moot, it might become moot at some future date, and hence require the D. C. 

Circuit, and perhaps the Supreme Court, to hear what counsel believe are the same legal issues 

again. Therefore, in effort to comply with the spirit, as well as the letter of Rule 1, counsel 

located additional individuals who have contracts with the United States Government and who

are adversely affected by section 441c. On July 11, 2014, after the two plaintiffs in this action 

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had agreed to become parties to the litigation, counsel for the Wagner plaintiffs spoke by 

telephone with counsel for the FEC and advised the FEC of the intention to add parties, either by 

way of motion in the Court of Appeals in Wagner, or by filing a new complaint and seeking to 

expedite it in order to have the two cases heard on September 30th. The FEC was asked to 

consent to one means or another of achieving that goal. Counsel for Parsons and Leckar 

promised to provide draft declarations and to obtain other information that the FEC thought was 

necessary, and those drafts were provided on July 21, 2014. Three days later, the FEC advised 

that it was unwilling to consent to any procedures that would enable Parsons and Leckar to have 

their claims joined with those in Wagner, in order to have them heard together. On July 24, 

2014, the complaint and the motion to certify in this action were both filed, and the FEC filed its 

Opposition on August 8, 2014.

After sweeping away all the legalese, the FEC’s position is that it needs more facts. We 

put aside the question of whether any of the facts that it seeks are necessary or even relevant, 

because there is a more basic response to their Opposition: what exactly do you need to know 

and how can we (the plaintiffs’ counsel) help you get that information? That is essentially the 

offer counsel made on July 11th, and given the cooperation shown by counsel for the plaintiffs 

regarding discovery in Wagner, there was no reason to think that the very limited factual 

information that the FEC claims to need could not have been supplied very quickly. But that was 

not the path that the FEC chose to follow. Instead, it prefers “Opposition.” If the FEC has its 

way, it will take a full 60 days to answer, after which it will be impossible to have this case and 

Wagner heard together. Perhaps the FEC’s lawyers have nothing better to do than to go through 

an entire re-briefing of these constitutional questions, but plaintiffs’ lawyers do – and so do the 

eleven judges of the D. C. Circuit.

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Plaintiffs cannot let pass one other aspect of the FEC’s plea for more information. 

Request for Admission # 4 served by plaintiffs in Wagner, which is attached as an addendum to 

this reply, asked the FEC to admit that a variety of other individuals performing various specific 

services paid for by the United States were subject to section 441c. The services included those 

performed for the judicial branch (as is true for the plaintiffs in this case) and those performed as 

attorneys, mainly for federal officers or employees, but not expressly including CJA attorneys 

like plaintiffs. The FEC admitted that those individuals would be covered provided that the 

individual “is a party to a contract with the United States or any department or agency thereof”. 

Does the FEC really believe that plaintiffs here have no “contract” when they are being paid by 

the United States to perform work that the United States wants performed? It may be that, unlike 

the plaintiffs in Wagner, there is no paper with the heading “contract” or “agreement” signed by

the lawyer and an agent for the United States, but the essentials of a contract are present: the 

lawyer agrees to perform certain designated work and the United States agrees to pay him or her 

for that work at an agreed rate.

The FEC suggests that Parsons and Leckar may not be contractors because certain 

physicians or lawyers have been deemed not to be contractors in FEC Advisory Opinions. But 

the FEC does not suggest that the facts involved in those Advisory Opinions are analogous to the 

facts here, and it is clear that they are not. 

In Advisory Opinion 1987-33, the FEC determined that a lawyer who served on the 

Council on Employee Welfare and Pension Benefit Plans was not a contractor — for the simple 

reason that he was a part-time government employee: “[T]he Department of Labor views persons 

appointed to the Council as part-time Federal employees. This characterization is supported by 

the definition of ‘employee’ in Federal personnel statutes and also by the statutory provisions 

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under which members of the Council are appointed and paid.” Advisory Opinion 1987-33 at 2. 

CJA attorneys are not federal employees. 

Likewise, in Advisory Opinion 2012-13, the FEC determined that certain physicians who 

provided services to Medicare and Medicaid participants were not federal contractors. But to the 

extent that there were any contracts involving those physicians, they were either between the 

physicians and their patients, who assigned to the physicians their right to receive 

reimbursements (Advisory Opinion 2012-13 at 3), or between the physicians and the States, who 

operate the Medicaid program: “Under Medicaid, doctors . . . have specific contractual 

agreements . . . with State agencies and not with the Federal Government.’” Id. (internal 

quotation and citation omitted; alterations in original). In either case, as the FEC recognized, the 

ban on contributions “does not apply when a person [the physician] contracts with an entity other 

than the United States or a department or agency of the United States, even if the entity is funded 

in whole or in part from funds appropriated by the Congress. The third party beneficiary of a 

Federal contract is not subject to the prohibition.” Id. at 2 (citation omitted). Unlike Medicare 

and Medicaid, the CJA program is operated directly by the federal government, and the criminal 

defendants that plaintiffs represent have no right to receive reimbursements that they assign to 

their lawyers. For those reasons, CJA lawyers are not analogous to the physicians whose status 

was discussed in Advisory Opinion 2012-13.

Although the FEC has wasted several weeks in preparing an Opposition saying that it 

needs certain information, instead of simply asking for the information that it wants, there is still 

time to provide that information and for the Court to certify the facts and constitutional questions 

so that the en banc Court of Appeals, not the FEC, will decide whether the “just, speedy, and 

inexpensive determination” of these constitutional questions is better served by hearing this case 

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with Wagner. Accordingly, this Court should exercise its inherent power to prevent undue delay 

and expense, as well as its express power under Rule 16(a), to require the attorneys for the 

parties to appear, within five days, for a pretrial conference before the Court. Each party should 

be required to serve on the other party, no later than 24 hours before the conference, any 

document requests, interrogatories, and requests for admissions that the party seeks, and the 

receiving party shall be prepared at the conference to state when such information will be 

provided. The parties should also be prepared at such conference to propose a schedule for 

submitting proposed certification orders to the Court.

It is not too late to overcome the FEC’s delaying tactics and preserve the option for the 

Court of Appeals to hear this case with Wagner. Plaintiffs’ counsel are prepared to do what is 

necessary, but they cannot do it alone, or expect the voluntary cooperation of the FEC in 

obtaining the “just, speedy, and inexpensive determination” of this action.

Respectfully submitted,

/s/ Alan B. Morrison

Alan B. Morrison

D. C. Bar No. 073114

George Washington Law School

2000 H Street NW

Washington D.C. 20052

(202) 994 7120

abmorrison@law.gwu.edu 

/s/ Arthur B. Spitzer

Arthur B. Spitzer

D.C. Bar No. 235960

American Civil Liberties Union of 

 the Nation's Capital

4301 Connecticut Ave NW Suite 434

Washington, D.C. 20008

(202) 457 0800

artspitzer@aclu-nca.org

Dated: August 11, 2014

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ADDENDUM

WAGNER PLAINTIFFS’ REQUEST FOR ADMISSION

4. The ban in section 441c applied to individuals who contract in all of the following 

circumstances: (a) the individual is hired by an agency, including but not limited to the 

Department of Justice, or by a federal court, to be an expert witness in either administrative or 

court litigation; (b) the individual is hired to represent the United States, a federal agency, 

officer, or employee, where the Department of Justice may have a conflict of interest or in other 

circumstances authorized by law; (c) the individual is hired by the Judicial Conference or another 

entity within the Judicial Branch to be a reporter for one of the Rules Committees or to provide 

training to judges; (d) the individual is hired to provide expert advice to the federal government 

in law, medicine, the hard or social sciences, or in any other area where the government lacks the 

necessary expertise among its officers or employees; and (e) the individual is hired to provide

translation or interpretation services in federal court or at a federal agency proceeding.

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