UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CHRIS VAN HOLLEN, Jr., )

)

Plaintiff, )

)

v. ) Civil Action No. 11-0766 (ABJ)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Chris Van Hollen, Jr., brought this lawsuit against defendant Federal Election 

Commission (“FEC”), alleging that defendant violated the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 706, by promulgating 11 C.F.R. § 104.20(c)(9). The lawsuit claimed that 

defendant exceeded its statutory authority by promulgating a regulation that was contrary to the 

disclosure regime set forth in the Bipartisan Campaign Reform Act (“BCRA”), 2 U.S.C. 

§ 434(f)(2)(E) and (F). Plaintiff also contended that the regulation violated the APA because it 

was arbitrary, capricious, and contrary to law. The parties cross-moved for summary judgment. 

On March 30, 2012, this Court issued its Memorandum Opinion (“Mem. Op.”) and Order 

[Dkt. # 47 and # 48], which granted plaintiff’s motion for summary judgment and denied 

defendant’s cross motion for summary judgment. The Order also denied defendant-intervenor 

Hispanic Leadership Fund’s (“HLF”) motion to dismiss and denied defendant-intervenor Center 

for Individual Freedom’s (“CFIF”) cross motion for summary judgment. CFIF and HLF 

appealed the Order and now move this Court for a stay pending appeal. [Dkt. # 51 and # 52]. 

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 1 of 5
2

A stay pending appeal is an extraordinary remedy. Cuomo v. U.S. Nuclear Regulatory 

Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985). It is “an intrusion into the ordinary process of 

administration and judicial review . . . and accordingly is not a matter of right, even if irreparable 

injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009)

(internal quotation marks and citation omitted). Instead, a stay is an exercise of judicial 

discretion, and whether to grant it depends upon the specific circumstances of the case. Id. at 

433. The moving party bears the burden of justifying why the Court should grant this 

extraordinary remedy. Id. at 433–34.

The Court considers four factors in reviewing the motion:

(1) whether the stay applicant has made a strong showing that it is likely to 

succeed on the merits; (2) whether the applicant will be irreparably injured absent 

a stay; (3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.

Id. at 434. The first two factors are the most critical. Id. The moving party must make a strong 

showing on at least one of them and some showing on the other. Baker v. Socialist People’s 

Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 97 (D.D.C. 2011), citing Cuomo, 772 F.2d at 974. 

Here, defendant-intervenors have not demonstrated a substantial likelihood of success on 

the merits. In its ruling, the Court struck down a regulation that was expressly designed to 

“narrow” the disclosure regime established by the BCRA. 1 Defendant had no explicit or 

 

1 HLF takes issue with the Court’s application of the two-step analysis set forth in Chevron 

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). HLF’s Mem. in Supp. of 

Mot. for Stay (“HLF’s Mem.”) at 6, citing Mem. Op. at 6. HLF submits that “the question of 

whether ‘Congress has explicitly left a gap for the agency to fill’ is a separate and distinct 

question from ‘whether Congress has directly spoken to the question at issue.’” Id. at 7. The 

Court notes that it quoted and applied the correct Chevron test, see Mem. Op. at 2, 12–13, but 

this was not an obvious Chevron situation. The question presented by the case was that the 

FEC’s stated reason for its promulgation of the rule was that the Supreme Court had altered the 

landscape – not that Congress had left a gap for the agency to fill – so it was incumbent upon the 

Court to determine what that meant under the Chevron test.

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 2 of 5
3

implicit statutory authority to limit the disclosure obligations enacted by Congress, which require

that every “person” who funds “electioneering communications” to disclose “all contributors.”

See 2 U.S.C. § 434(f)(1). Prior to the promulgation of the regulation that was struck down, there 

was a valid regulation in effect implementing the BCRA’s disclosure requirement. 11 C.F.R. 

§ 104.20(c) (effective Feb. 3, 2003 to Dec. 25, 2007); 68 Fed. Reg. 404, 419 (Jan. 3, 2003); see 

also Mem. Op. at 4–5. In light of the Court’s ruling, that regulation now governs the disclosures 

required under the BCRA. 

Defendant-Intervenors also contend that they are likely to succeed on the merits because 

plaintiff lacks standing to challenge the regulation. HLF’s Mem. at 2–6. In light of FEC v. 

Akins, 524 U.S. 11 (1998) and Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), and as defendant 

FEC’s acknowledgement that plaintiff has standing suggests,2 defendant-intervenors are not 

likely to succeed on this issue either. 

Defendant-Intervenors have also failed to show that they will be irreparably harmed 

absent a stay. CFIF contends that “[b]ecause the primary election season already is underway, 

injury to speech and associational rights already is occurring.” CFIF’s Mem. in Supp. of Mot. 

for Stay (“CFIF’s Mem.”) at 9; Mazzella Decl. ¶ 3 [Dkt. # 15-2] (stating that the Court’s ruling 

“will force CFIF to abandon some of its desired speech and alter other speech” and that “[t]his is 

a substantial impairment of our rights of free speech and association”).3 But, as the Court noted 

 

2 Defendant FEC agreed at oral argument that plaintiff had standing. Motions Hearing 

Transcript (“Tr.”) at 57 (Jan. 11, 2012).

3 CFIF also contends that it will be irreparably harmed absent a stay because Congress did 

not evaluate and approve of the “first amendment burdens” that compliance with the Court’s 

ruling would require. CFIF’s Mem. at 10. According to CFIF, the FEC did contemplate those 

burdens when it promulgated the rule at issue in this case. The Court notes that the stated 

justification for the rulemaking was not Constitutional compliance. Electioneering 

Communications, 72 Fed. Reg. 50,261, 50271 (proposed August 31, 2007) (asking in the Notice 

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 3 of 5
4

in its memorandum opinion, the Supreme Court expressly upheld the disclosure requirements set 

forth in the BCRA in Citizens United v. FEC, 588 U.S. ---, 130 S. Ct. 876 (2010). In its 

decision, the Supreme Court observed that the disclosure requirements serve an important public 

function because they “‘provid[e] the electorate with information about the sources of electionrelated spending,’” 130 S. Ct. at 914, quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976), and “help 

citizens ‘make informed choices in the political marketplace,’” id., quoting McConnell v. FEC,

540 U.S. 93, 197 (2003). It is therefore difficult to see how defendant-intervenors would be 

harmed by complying with the disclosure provisions that the Supreme Court specifically upheld 

in Citizens United.

Because defendant-intervenors have failed to demonstrate two of the four factors 

necessary for the stay – the likelihood of success on the merits and irreparable harm – the motion 

will be denied. But the Court notes that the public interest also favors a denial of the requested 

stay. The public has a strong interest in the full disclosure mandated by the BCRA. See Citizens 

United, 130 S. Ct. at 914–16. The Court is not persuaded by defendant-intervenors’ argument 

that a public interest exists in ensuring that “fundamental constitutional issues are fully aired and 

carefully considered by the courts.” CFIF’s Mem. at 12 (internal quotation marks and citation 

omitted). The Court previously rejected these claims in its opinion, finding that they were not 

properly before the Court, and in any event, the First Amendment concerns had been addressed 

by the Supreme Court in Citizens United.

 

of Proposed Rulemaking, whether, in light of the recent Supreme Court decisions, “the 

Commission [should] limit the ‘donation’ reporting requirement to funds that are donated for the 

express purpose of making electioneering communications?”) And, even if the Constitution 

were the driving force behind the rulemaking, Congress did not delegate authority to the FEC to 

engage in rulemaking for that purpose, particularly when the statutory language of the BCRA is 

clear and unambiguous. See Mem. Op. at 29.

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 4 of 5
5

Accordingly, it is ORDERED that defendant-intervenors’ motions for stay pending 

appeal [Dkt. # 51 and # 52] are DENIED. The Clerk is directed to transmit a copy of this Order 

to the Court of Appeals for the District of Columbia Circuit. 

AMY BERMAN JACKSON

United States District Judge

DATE: April 27, 2012

Case 1:11-cv-00766-ABJ Document 61 Filed 04/27/12 Page 5 of 5