Stop R.E.I.D. v. Federal Election Commission
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-00397-AJT-IDD. [999759975]. [15-1455]
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 1 of 31
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1455
STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY
(“Stop Reid”); TEA PARTY LEADERSHIP FUND;
REPUBLICAN CITY COMMITTEE,
DEMOCRATS,
ALEXANDRIA
Plaintiffs - Appellants,
AMERICAN FUTURE PAC,
Intervenor/Plaintiff – Appellant,
and
NIGER INNIS; NIGER INNIS FOR CONGRESS,
Plaintiffs,
v.
FEDERAL ELECTION COMMISSION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:14-cv-00397-AJT-IDD)
Argued:
December 8, 2015
Decided:
February 23, 2016
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 2 of 31
Affirmed in part; vacated and remanded in part with instructions
by published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Shedd and Judge Dillon joined.
ARGUED:
Michael
T.
Morley,
COOLIDGE-REAGAN
FOUNDATION,
Washington, D.C., for Appellants.
Kevin Paul Hancock, FEDERAL
ELECTION COMMISSION, Washington, D.C., for Appellee.
ON BRIEF:
Dan Backer, DB CAPITOL STRATEGIES, Alexandria, Virginia, for
Appellants
Stop
Reckless
Economic
Instability
Caused
by
Democrats, Tea Party Leadership Fund, and Alexandria Republican
City Committee; Jerad Najvar, NAJVAR LAW FIRM, Houston, Texas,
for
Intervenor-Appellant
American
Future
PAC.
Lisa
J.
Stevenson, Deputy General Counsel-Law, Kevin Deeley, Acting
Associate General Counsel, Harry J. Summers, Assistant General
Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for
Appellee.
2
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 3 of 31
TRAXLER, Chief Judge:
Four
Instability
political
Caused
committees
–
By
Democrats”
(“the
Fund”),
Leadership
Fund”
Committee”
(“ARCC”),
and
“Stop
(“Stop
Reckless
PAC”),
“Alexandria
“American
Future
Economic
“Tea
Party
Republican
PAC”
City
(“American
Future”) (collectively, “Appellants”) – appeal a district court
order granting summary judgment against them in their claims
challenging the constitutionality of certain contribution limits
established
by
the
Federal
Election
(“FECA”), see 52 U.S.C. §§ 30101–30146.
Campaign
Act
of
1971
We conclude that two of
the three claims became moot before the district court granted
summary judgment, and we therefore vacate the merits judgment on
those counts and remand to the district court with instructions
to
dismiss
them
for
lack
of
subject-matter
jurisdiction.
Regarding the third claim, we affirm.
I.
FECA
recipients.
U.S.C.
regulates
many
different
types
of
donors
and
See 52 U.S.C. §§ 30116, 30118-19, 30121 (formerly 2
§§ 441a,
441b-441c,
441e).
To
understand
the
issues
before us in this appeal, it is necessary to understand some of
FECA’s basic concepts and limits.
To
begin,
FECA
defines
a
“political
committee”
as
“any
committee, club, association, or other group of persons” that,
during
a
calendar
year,
received
3
contributions
or
made
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
expenditures
in
(formerly
U.S.C.
2
excess
of
Pg: 4 of 31
$1,000.
§ 431(4)(A));
52
see
U.S.C.
The
§
Real
30101(4)(A)
Truth
About
Abortion, Inc. v. FEC, 681 F.3d 544, 555 (4th Cir. 2012).
defines
“expenditures”
and
spending
or
“for
election
for
(9)(A)(i)
fundraising
Federal
(formerly
“contributions”
the
office.”
2
U.S.C.
purpose
52
§
as
of
U.S.C.
FECA
encompassing
influencing
§
any
431(8)(A)(i),
30101(8)(A)(i),
(9)(A)(i));
see
also Buckley v. Valeo, 424 U.S. 1, 79 (1976) (limiting FECA’s
political-committee
controlled
by
a
requirements
candidate
or
to
organizations
whose
“major
that
purpose”
is
are
to
nominate or elect a candidate); The Real Truth About Abortion,
Inc., 681 F.3d at 555.
A group that has met the political-
committee
register
criteria
must
Commission (“FEC”).
with
the
Federal
Election
See 52 U.S.C. § 30103(a) (formerly 2 U.S.C.
§ 433(a)).
There are different types of political committees.
are
Some
associated
See,
e.g.,
52
with
U.S.C.
a
§
particular
30101(14)
candidate
(providing
or
entity.
that
a
“national
committee” is a political committee responsible for the day-today
operation
of
a
national
political
party);
52
U.S.C.
§ 30101(15) (providing that a “State committee” is a political
committee that is responsible for the day-to-day operation of a
political party at the state level); 52 U.S.C. § 30102(e)(1)
(providing
that
each
candidate
4
must
designate
a
political
Appeal: 15-1455
Doc: 32
committee
Filed: 02/23/2016
to
committee”).
serve
as
the
Pg: 5 of 31
candidate’s
“principal
campaign
And others are not associated with any candidate
or entity (“non-connected political committees”).
FECA
sets
different
contribution
classes of donors and recipients.
connected
political
committee
to
limits
for
different
A contribution made by a nonan
individual
candidate
is
governed by the restriction limiting contributions by “persons”
generally.
52
“individual[s],
corporation[s],
U.S.C.
§
30116(a)(1)(A).
partnership[s],
labor
“Persons”
committee[s],
organization[s],
or
include
association[s],
any
other
organization[s] or group[s]” other than the federal government.
52 U.S.C. § 30101(11).
In 2014, the inflation-adjusted limit
for contributions by “persons” was $2,600 per election, with
primaries and general elections counting as separate elections. 1
However, non-connected political committees, unlike other types
of
persons,
qualified
for
an
elevated
per-election
limit
of
$5,000 on contributions to individual candidates if and when
1
52 U.S.C. § 30116(a)(1)(A) sets the per-election limit at
$2,000. However, that amount had been adjusted for inflation to
$2,600 by the time the parties filed their memoranda in the
district court regarding summary judgment, see Price Index
Adjustments for Contribution and Expenditure Limitations and
Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8,530-02,
8,532 (Feb. 6, 2013), and it was adjusted on February 3, 2015,
to $2,700, see Price Index Adjustments for Contribution and
Expenditure
Limitations
and
Lobbyist
Bundling
Disclosure
Threshold, 80 Fed. Reg. 5,750-02, 5,752 (Feb. 3, 2015).
See
also 52 U.S.C. § 30116(c) (providing for periodic inflation
adjustment of certain limits).
5
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 6 of 31
they satisfied three criteria:
They must have “been registered
[with the FEC] for a period of not less than 6 months” (the
“waiting
period”),
“received
contributions
from
more
than
50
persons,” and “made contributions to 5 or more candidates for
Federal
office.”
30116(a)(2)(A).
is
referred
(“MPC”).
52
U.S.C.
§
30116(a)(4);
see
52
U.S.C.
§
A political committee satisfying these criteria
to
as
a
“multicandidate
political
committee”
Id.
FECA also limits contributions that persons and political
committees
can
make
to
political
party
committees.
U.S.C. § 30116(a)(1)(B), (D), (a)(2)(B)-(C).
See
52
With regard to
contributions to these committees, the limits decrease when the
non-connected political committee becomes an MPC.
case
was
commenced
in
April
2014,
persons
When this
(including
non-
connected political committees that did not qualify as MPCs)
could contribute $32,400 per year to national party committees
and $10,000 combined to state political party committees and
their local affiliates, while the corresponding limits for MPCs
were $15,000 and $5,000.
See id.; 11 C.F.R. § 110.3(a)(1);
Price
for
Index
Adjustments
Contribution
and
Expenditure
Limitations and Lobbyist Bundling Disclosure Threshold, 78 Fed.
Reg. 8,530-02, 8,532 (Feb. 6, 2013).
On December 16, 2014, Congress amended FECA to create a new
category
of
limits.
Under
the
6
amended
law,
national
party
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 7 of 31
committees can create up to three segregated accounts to fund
their presidential nominating convention, building headquarters,
and
election-related
legal
expenses.
See
Consolidated
and
Further Continuing Appropriations Act, 2015, Pub. L. 113-235,
Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified
as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).
The
annual
limits
for
contributions
made
to
such
segregated
accounts are three times the limits on other contributions to
national party committees.
See id.
II.
The plaintiffs in this suit, Stop PAC, the Fund, and ARCC,
filed their initial complaint against the FEC on April 14, 2014,
and filed an amended complaint on July 7, 2014 (the “Amended
Complaint”).
The Amended Complaint alleged the following facts
regarding the parties.
Plaintiff Stop PAC is a non-connected political committee
that registered with the FEC on March 11, 2014.
2014,
Stop
contributions
PAC
had
to
five
over
150
candidates
contributors
for
federal
As of April 14,
and
had
office.
made
On
or
around April 4, 2014, Stop PAC contributed the maximum $2,600 to
candidate Niger Innis in the Nevada Primary for the Republican
7
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 8 of 31
nomination for a seat in the U.S. House of Representatives. 2
On
or around June 16, 2014, Stop PAC contributed the same amount to
candidate Dan Sullivan in the Alaska Primary for the Republican
nomination for the U.S. Senate.
Stop PAC wished to contribute
more to each candidate — as it could have had it been an MPC —
but its
waiting
period
would
not
expire
until
September
11,
2014, after the primaries were held.
Stop PAC also contributed $2,600 to Congressman Joe Heck,
Republican nominee for Congress from Nevada’s 3rd Congressional
District, in connection with his 2014 general election.
Stop
PAC wished to contribute more to Heck immediately, but it was
prohibited from doing so until its waiting period expired.
The Fund is a non-connected MPC that registered with the
FEC in 2012, has over 100,000 contributors, and has contributed
to dozens of federal candidates.
the
maximum
political
national
amounts
party
party
respectively.
it
could
committee
committee
and
each
Because the Fund was an MPC,
contribute
annually
its
affiliates
year
local
were
$5,000
to
and
a
and
state
to
a
$15,000,
See 52 U.S.C. § 30116(a)(2)(B)-(C); 11 C.F.R. §
110.3(a)(1).
2
Innis and his campaign committee were plaintiffs in the
original complaint, but the district court granted a motion to
voluntarily dismiss them.
8
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Plaintiff
ARCC
is
a
Pg: 9 of 31
local
political
party
committee
affiliated with the Virginia Republican State Committee, which
is a state political party committee.
The Fund contributed the
statutory maximum of $5,000 to ARCC on April 4, 2014.
For the
year 2014, the Fund wished to contribute an additional $5,000 to
ARCC and $32,400 to the National Republican Senatorial Committee
(“NRSC”), both of which FECA would have allowed had the Fund not
yet
become
an
MPC.
See
52
U.S.C.
§
30116(a)(1)(B),
(D),
(a)(2)(B)-(C); see 78 Fed. Reg. at 8,532.
The Amended Complaint contains three claims, each of which
seeks
declaratory
pertain
to
FECA’s
and
injunctive
relief.
$2,600-per-election
limit
Counts
on
I
and
II
contributions
made to individual candidates by political committees that have
not yet become MPCs.
See 52 U.S.C. § 30116(a)(1)(A).
In Count
I, Stop PAC alleges that that limit, as applied to Stop PAC,
violates the equal protection component of the Fifth Amendment’s
Due Process Clause because FECA applies a higher limit to MPCs
than it does to political committees that have not completed the
waiting period but have satisfied the other MPC criteria.
In
Count II, Stop PAC alleges that the waiting period, as applied
to Stop PAC, violates its First Amendment rights to free speech
and free association.
that
FECA’s
national
annual
party
In Count III, ARCC and the Fund allege
limits
on
contributions
committees
($15,000),
9
made
see
by
52
MPCs
to
U.S.C.
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 10 of 31
§ 30116(a)(2)(B), and to state party committees ($5,000), see 52
U.S.C. § 30116(a)(2)(C), violate the equal protection component
of the Fifth Amendment’s Due Process Clause insofar as political
committees that have not yet completed the waiting period but
that
have
satisfied
the
other
MPC
criteria
enjoy
the
higher
limits of $32,400 and $10,000, respectively.
On August 27, 2014, the plaintiffs moved to join American
Future in the suit as an intervening plaintiff concerning Counts
I
and
II.
American
Future
is
a
non-connected
political
committee that registered with the FEC on August 11, 2014.
As
of August 22, 2014, American Future had raised $5,473 from 54
contributors.
It contributed $2,600 to candidate Tom Cotton’s
general election campaign in Arkansas for the U.S. Senate, and
$100 each to four other candidates.
American Future wished to
contribute $2,000 more to Cotton for the 2014 general election,
but
FECA
prevented
it
from
doing
so
since
American
Future’s
waiting period was not due to expire before the November 2014
election.
American Future also wished to contribute more than
$2,600 to Cotton immediately but could not do so until he filed
paperwork
concerning
the
2016
primary
election.
Finally,
American Future desired to contribute more than $2,600 as soon
as possible to other candidates for their 2016 primaries.
On
October 6, 2014, the district court entered an order allowing
10
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 11 of 31
American Future to intervene pursuant to Federal Rule 24.
See
Fed. R. Civ. P. 24.
On September 19, 2014, before the district court ruled on
the plaintiffs’ joinder motion, the parties filed cross-motions
for summary judgment.
In support of its motion, the FEC, in
addition to arguing that none of the challenged limitations were
unconstitutional,
asserted
that
the
district
court
lacked
subject-matter jurisdiction over Stop PAC’s claims (Counts I and
II).
In particular, it argued that Stop PAC’s claims should be
dismissed for lack of standing since it caused its own injury by
not registering as early as November 2013, in time to become an
MPC before the three elections concerning which it wished to
make additional contributions.
The FEC also argued that Stop
PAC’s claims were moot because it became an MPC on September 11,
2014,
and
was
thus
no
longer
subject
to
the
limit
that
it
challenged, and never would be again.
In
response,
established
FEC’s
the
standing.
attempt
to
plaintiffs
In
that
“effectively
contended
regard,
blame
they
Stop
PAC
that
Stop
objected
for
to
failing
PAC
the
to
organize itself more than six months before the primaries,” when
in fact “[m]ost ordinary people are not especially interested in
becoming involved in the political process until shortly before
an election.”
Memo. in Opp’n to FEC’s Mot. for Summ. J. 3.
As
for the FEC’s suggestion that Stop PAC’s claims were moot, the
11
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 12 of 31
plaintiffs invoked the exception for claims that are “capable of
repetition, yet evading review.”
ICC,
219
U.S.
498,
515
Southern Pac. Term. Co. v.
(1911).
Although
the
plaintiffs
acknowledged that this exception is generally applied only when
the plaintiff itself faces a risk that it will be subject to the
same challenged provisions in the future, the plaintiffs argued
that the same-plaintiff requirement need not be met in electionrelated cases.
On
February
24,
2015,
as
the
parties
waited
for
the
district court to rule on their summary judgment motions, the
FEC filed a notice with the district court raising additional
arguments regarding mootness.
In the notice, the FEC informed
the district court that on February 11, 2015, American Future
had become an MPC.
contended
that
As it had argued regarding Stop PAC, the FEC
American
Future,
as
an
MPC,
was
no
longer
affected by the limit it was challenging and never would be
again.
16,
The FEC’s filing also informed the court of the December
2014
change
in
the
law
allowing
contributions
to
the
specified segregated accounts of national parties of three times
the limits on other contributions to national party committees.
The FEC maintained that that change mooted the Fund’s challenge
to
the
limits
on
an
MPC’s
contributions
committees.
12
to
national
party
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 13 of 31
The district court subsequently granted summary judgment to
the FEC on all claims.
See Stop Reckless Econ. Instability
Caused By Democrats v. FEC, 93 F. Supp. 3d 466 (E.D. Va. 2015)
(“Stop”).
Regarding
each
of
the
three
claims,
the
district
court assumed that the FEC’s arguments regarding standing and
mootness failed, see id. at 472-73, and ruled that the FEC was
entitled to summary judgment on the merits, see id. at 473-77.
As
for
Count
district
court
II,
alleging
concluded
a
First
Amendment
that
“Stop
PAC
and
violation,
American
the
Future
cannot show that they have suffered a cognizable constitutional
injury as a result of the waiting period, even if they would
have made a higher contribution, had they been permitted to do
so.”
and
Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1 (1976),
California
Regarding
Med.
Counts
I
Ass’n
and
v.
III,
FEC,
453
alleging
U.S.
182
violation
(1981)).
of
the
plaintiffs’ equal protection rights under the Fifth Amendment,
the district court concluded that Stop PAC and the Fund were not
similarly situated to each other, and thus that “FECA does not
improperly
discriminate
among
such
committees”
and
“does
not
violate the plaintiffs’ rights under the Fifth Amendment.”
Id.
at
any
477.
The
discrimination
district
was
court
justified
intermediate scrutiny.
alternatively
under
See id.
13
either
ruled
that
rational-basis
or
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 14 of 31
III.
With regard to each of the three counts, Appellants argue
that
the
district
against them.
court
should
court
erred
in
granting
summary
judgment
In response, the FEC maintains that the district
never
have
addressed
the
merits
of
the
claims
because it lacked subject-matter jurisdiction over them.
See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that
it
lacks
subject-matter
dismiss the action.”).
jurisdiction,
the
court
must
Alternatively, the FEC argues that the
district court’s decision regarding the merits was correct.
“Without jurisdiction the court cannot proceed at all in
any cause.
Jurisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.”
McCardle, 74 U.S. 506, 514 (1868).
Ex parte
Accordingly, the Supreme
Court has stated in no uncertain terms that federal courts are
not
free
to
simply
assume
that
they
possess
subject-matter
jurisdiction and then proceed to decide the merits of the issues
before them when their jurisdiction remains in doubt.
See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
Rather, federal courts must determine whether they have subjectmatter jurisdiction over a claim before proceeding to address
its merits.
See id.
The district court erred in failing to
follow this course in this case.
14
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 15 of 31
We therefore begin our analysis by addressing the FEC’s
contentions that the district court did not have subject-matter
jurisdiction when it granted summary judgment to the FEC.
Article
III
gives
federal
courts
“[c]ases” and “[c]ontroversies.”
1.
jurisdiction
only
over
U.S. Const. art. III, § 2, cl.
“One essential aspect of this requirement is that any person
invoking the power of a federal court must demonstrate standing
to do so,” which “requires the litigant to prove that he has
suffered a concrete and particularized injury that is fairly
traceable
to
the
challenged
conduct,
and
is
redressed by a favorable judicial decision.”
likely
to
be
Hollingsworth v.
Perry, 133 S. Ct. 2652, 2661 (2013).
“To qualify as a case fit for federal-court adjudication,
an actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.”
Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal
quotation marks omitted).
Accordingly, a case is moot “when the
issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.”
133
S.
Ct.
1017,
1023
that
would
(2013)
(some
Chafin v. Chafin,
internal
quotation
marks
omitted).
A
case
underlying
dispute
is
otherwise
“capable
15
be
of
moot
is
not
repetition,
so
yet
if
the
evading
Appeal: 15-1455
Doc: 32
review.”
Filed: 02/23/2016
Pg: 16 of 31
Southern Pac. Term. Co., 219 U.S. at 515.
The Supreme
Court has explained
that in the absence of a class action, the “capable of
repetition, yet evading review” doctrine was limited
to the situation where two elements combined: (1) the
challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration,
and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same
action again.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam);
see id. (holding that doctrine did not prevent the case from
being moot because the “case, not a class action, clearly does
not satisfy the latter element”).
A.
Regarding Counts I and II, the FEC repeats its argument
presented
below
Counts
and
I
that
II.
Stop
PAC
The
FEC
lacked
also
standing
repeats
to
its
prosecute
alternative
contention that Counts I and II became moot once Stop PAC and
Intervenor American Future became MPCs, since that change in
status ensured that they would never again be bound by the limit
they are challenging.
We agree with this latter argument.
See
United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011)
(per
curiam)
requirement
(holding
was
not
that
met
exception’s
when
same-complaining-party
plaintiff
challenging
special
conditions of juvenile supervision had turned 21 and thus would
“never
again
be
subject
to
an
16
order
imposing
[such]
special
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
conditions”).
Pg: 17 of 31
Because we conclude that Counts I and II became
moot before the district court granted summary judgment, we do
not address the FEC’s contention that Stop PAC never established
standing
to
assert
these
claims
in
the
first
place.
See
Arizonans for Official English, 520 U.S. at 66-67 (declining to
decide standing issue when claim was moot).
Appellants
Future
became
challenging
do
not
MPCs
therefore
deny
and
that
the
ceased
once
Stop
PAC
contribution
to
apply
to
and
limit
them,
American
they
the
are
district
court was no longer in position to prevent any threatened injury
(or
provide
redress
for
any
past
injury).
Nevertheless,
Appellants argue that the “capable of repetition, yet evading
review”
doctrine
becoming moot.
applied
to
prevent
Counts
I
and
II
from
In this regard, Appellants do not dispute the
fact that there was no longer any reasonable expectation that
they would be subject to the same limit again.
Rather, they
maintain that in election-related cases, the same-complainingparty element need not be satisfied.
We disagree.
In support of their argument, Appellants rely primarily on
Justice Scalia’s dissent in Honig v. Doe, 484 U.S. 305, 335-36
(1988)
(Scalia,
J.,
dissenting).
In
the
dissent,
Justice
Scalia cited abortion and election cases in which he argued the
Court
had
“dispens[ed]
with
the
same-party
requirement”
and
“focus[ed] instead upon the great likelihood that the issue will
17
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 18 of 31
recur between the defendant and the other members of the public
Id. (emphasis in original). 3
at large.”
Since Honig was decided, courts have taken different views
regarding whether the cases cited in Justice Scalia’s dissent
indicated
a
deliberate
decision
by
the
Supreme
Court
not
to
apply the same-complaining-party requirement in election cases.
Partially as a result of this disagreement, courts have reached
different
results
when
Appellants now raise.
considering
arguments
like
the
ones
Compare Van Wie v. Pataki, 267 F.3d 109,
114-15 (2d Cir. 2001) (applying same-plaintiff requirement in an
election case), and Barilla v. Ervin, 886 F.2d 1514, 1519-20 &
n.3 (9th Cir. 1989) (same), with Catholic Leadership Coal. of
Tex.
v.
Reisman,
764
F.3d
409,
423-24
(5th
Cir.
2014)
(concluding that same-plaintiff requirement need not be met in
election cases), Lawrence v. Blackwell, 430 F.3d 368, 372 (6th
3
Justice Scalia acknowledged that those cases may “have
been limited to their facts, or to the narrow areas of abortion
and election rights, by [the Court’s] more recent insistence
that, at least in the absence of a class action, the ‘capable of
repetition’
doctrine
applies
only
where
‘there
[is]
a
“reasonable expectation”’ that the ‘same complaining party’
would be subjected to the same action again.” Honig v. Doe, 484
U.S. 305, 336 (1988) (Scalia, J., dissenting) (emphasis in
original).
In class actions, at least when the class is
certified while the case remains live for the named plaintiff, a
reasonable expectation that someone in the represented class
will be subject to the same action may be sufficient to satisfy
the “capable of repetition” prong of the exception. See Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530-31 (2013);
Sosna v. Iowa, 419 U.S. 393, 401-02 (1975).
18
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 19 of 31
Cir. 2005) (same), and Majors v. Abell, 317 F.3d 719, 723 (7th
Cir. 2003) (same).
In
the
end,
we
need
not
decide
whether
we
believe
the
Supreme Court has sub silentio limited, or created an exception
to, the requirements of the “capable of repetition, yet evading
review” doctrine.
that
the
That is so because even were we to conclude
Supreme
Court
has
actually
sub
silentio
excused
compliance with the rule in some election cases, we would be
obligated
to
articulated.
follow
the
rule
that
the
Court
has
actually
See, e.g., Shalala v. Illinois Council on Long
Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not
normally overturn, or so dramatically limit, earlier authority
sub silentio.”); Hohn v. United States, 524 U.S. 236, 252–53
(1998) (“Our decisions remain binding precedent until we see fit
to reconsider them, regardless of whether subsequent cases have
raised doubts about their continuing vitality.”); Agostini v.
Felton, 521 U.S. 203, 237 (1997) (explaining that if a Supreme
Court
precedent
directly
controls,
“yet
appears
to
rest
on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own
decisions” (internal quotation marks omitted)); id. (explaining
that lower courts should not conclude that the Supreme Court’s
“more recent cases have, by implication, overruled [its] earlier
19
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 20 of 31
precedent”); Mackall v. Angelone, 131 F.3d 442, 445–49 (4th Cir.
1997) (en banc) (applying Agostini and refusing to create an
exception to a general rule articulated by the Supreme Court
even though a subsequent Supreme Court case had noted that in a
future
case
the
Court
might
adopt
the
exception
we
were
considering).
Moreover, the Supreme Court has actually applied the samecomplaining-plaintiff
rule
in
two
relatively
recent
election
cases.
FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449
(2007),
concerned
prohibition
on
“electioneering
an
the
as-applied
use
of
corporate
communications”
black-out period.
challenge
during
See id. at 457-60.
to
a
to
funds
a
60-day
federal
finance
pre-election
With the black-out period
long over, the Supreme Court considered whether the case met the
requirements of the “capable of repetition, yet evading review”
doctrine.
requires
The Court explained that “[t]he second prong . . .
a
‘reasonable
expectation’
or
a
‘demonstrated
probability’ that ‘the same controversy will recur involving the
same complaining party.’”
Id. at 463 (emphasis added).
Court
requirement
concluded
because
running
the
that
the
plaintiff
materially
“credibly
similar
was
claimed
future
met
that
targeted
in
it
that
The
case
planned
broadcast
on
ads
mentioning a candidate within the blackout period, and there is
no reason to believe that the FEC will refrain from prosecuting
20
Appeal: 15-1455
Doc: 32
violations
Filed: 02/23/2016
of”
the
Pg: 21 of 31
challenged
statute.
Id.
(citation
and
internal quotation marks omitted).
In Davis v. FEC, 554 U.S. 724 (2008), the Supreme Court
reviewed a challenge from a self-financed candidate to certain
campaign-finance-disclosure
subject.
See
id.
continued
after
considered
whether
at
requirements
731-32.
the
With
election
the
the
of
which
he
litigation
occurred,
“capable
review” doctrine applied.
to
the
repetition,
having
Court
yet
was
again
evading
The Court again applied the same-
complaining-party requirement, and determined it was satisfied
because the candidate had publicly announced that he intended to
run again as a self-financed candidate.
Like
the
Supreme
complaining-plaintiff
Court,
we
requirement
See id. at 735-36.
have
in
also
applied
recent
the
election
samecases.
Most recently, in Lux v. Judd, 651 F.3d 396 (4th Cir. 2011), we
reviewed
a
constitutional
challenge
to
a
state’s
requirement
that each signature on a petition for ballot placement by an
independent candidate for Congress be witnessed by a district
resident.
See id. at 398.
In considering whether the case
satisfied the requirements of the “capable of repetition, yet
evading
review”
doctrine,
we
noted
that
“[e]lection-related
disputes qualify as ‘capable of repetition’ when ‘there is a
reasonable expectation that the challenged provisions will be
applied
against
the
plaintiffs
21
again
during
future
election
Appeal: 15-1455
Doc: 32
cycles.’”
Filed: 02/23/2016
Id. at 401.
Pg: 22 of 31
We concluded that that requirement was
satisfied in that case.
See id.
For all of these reasons, we conclude that we are bound to
apply
the
doctrine
that
we
and
the
Supreme
Court
have
articulated — and recently applied — and we must leave to the
Supreme Court the decision of whether it wishes to create an
exception
because
to,
or
otherwise
Appellants
requirement,
the
cannot
limit,
“capable
that
satisfy
of
the
rule.
Accordingly,
same-complaining-party
repetition,
yet
evading
review”
doctrine does not apply, and the district court erred in not
dismissing
Counts
jurisdiction.
ruling
I
and
II
for
lack
of
subject-matter
We therefore vacate the district court’s merits
regarding
the
claims
and
remand
them
to
the
district
court for dismissal in accordance with Rule 12(h)(3).
B.
The FEC contends that the district court erred in declining
to dismiss Count III on mootness grounds as well.
In
Count
III
the
Fund
and
ARCC
We disagree.
challenge
the
constitutionality of the annual $5,000 limit that applies to
contributions from MPCs to state political party committees and
their
local
affiliates,
and
the
Fund
challenges
the
constitutionality of the annual $15,000 limit on contributions
from
MPCs
to
national
party
22
committees.
See
52
U.S.C.
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
§ 30116(a)(2)(B)-(C).
The
Pg: 23 of 31
FEC
advances
distinct
mootness
arguments concerning each of these two challenges.
Regarding the challenge to the limit on contributions to
state party committees and their local affiliates, the FEC notes
that
the
Amended
“immediately
Complaint
contribute
alleges
an
that
additional
the
$5,000
Fund
to
wished
.
.
.
to
ARCC,
which would bring its total contributions to . . . ARCC for the
year 2014 to $10,000.”
J.A. 59.
The
FEC
argues
that,
once
2014 ended, this challenge was moot because the district court
could
not
grant
the
Fund
the
right
to
contribute
additional
amounts to ARCC in 2014.
We
conclude,
however,
that
this
challenge,
unlike
those
presented in Counts I and II, easily fits into the “capable of
repetition, yet evading review” exception.
It is undisputed
that the election cycle is too short in duration for election
disputes to be fully litigated within a single cycle.
v. Ogilvie, 394 U.S. 814, 816 (1969).
See Moore
And the Fund very well
may wish to contribute more than $5,000 to the ARCC in future
years.
To invoke the exception, Appellants are not required to
forecast
evidence
Carolina
Right
Expenditures
(holding
financing
to
v.
that
for
that
they
Life
Leake,
Comm.
524
constitutional
judicial
were
so
Fund
F.3d
427,
challenges
elections,
23
inclined.
for
See
Indep.
North
Political
435
(4th
Cir.
2008)
to
system
of
public
brought
by
two
political
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 24 of 31
committees and a candidate, were not mooted by the election even
though neither the political committees nor the candidate had
specifically alleged an intent to participate in future election
cycles; concluding that “there is a reasonable expectation that
the challenged provisions will be applied against the plaintiffs
again during future election cycles”; rejecting “the argument
that an ex-candidate’s claims may be ‘capable of repetition yet
evading review’ only if the ex-candidate specifically alleges an
intent to run again in a future election”); see also Honig, 484
U.S. at 318-19 n.6 (“Our concern in these cases, as in all
others
involving
potentially
moot
claims,
was
whether
the
controversy was capable of repetition and not . . . whether the
claimant had demonstrated that a recurrence of the dispute was
more probable than not.” (emphasis in original)).
As for the Fund’s challenge to the annual $15,000 limit on
contributions from MPCs to national party committees, the FEC
contends that that challenge was mooted by the December 2014
change in the law referenced earlier.
The Fund had alleged in
its
wanted
2014
Amended
Complaint
that
contribute $32,400 to the” NRSC.
it
J.A. 59.
to
“immediately
The December 2014
amendment authorized the NRSC to create a segregated account to
fund their building-headquarters expenses and another to fund
24
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 25 of 31
their election-related legal expenses. 4
See Consolidated and
Further Continuing Appropriations Act, 2015, Pub. L. 113-235,
Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified
as amended at 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9)).
Under the new law, donors may make contributions to each of
these new accounts in amounts up to three times the amounts they
could previously contribute to a national party committee.
id.
the
See
In this way, if the NRSC created such segregated accounts,
Fund
would
have
been
free
to
contribute
$32,400
to
the
building-fund account or legal-fund account were it so inclined.
We conclude, however, that the possible availability of this new
option did not moot the challenge here.
Nothing in the record
indicates that the Fund had or has any interest in donating to
such specialized accounts.
Fund
is
challenging
Because the $15,000 limit that the
remains
in
place,
we
conclude
that
this
challenge, like the challenge to the $5,000 annual limit on MPC
contributions to state and local political committees, fits into
the “capable of repetition, yet evading review” exception.
IV.
Having
determined
that
the
district
court
possessed
subject-matter jurisdiction over Count III, and that we continue
4
The provision pertaining to accounts for the expenses
concerning presidential nominating conventions does not apply to
national congressional campaign committees.
See 52 U.S.C.
§ 30116(a)(9)(A).
25
Appeal: 15-1455
to
Doc: 32
possess
Filed: 02/23/2016
jurisdiction
as
Pg: 26 of 31
well,
we
turn
to
Appellants’
contention that the district court erred in granting summary
judgment to the FEC on the merits on that claim.
We conclude
that the district court was correct to grant summary judgment.
“We review a district court’s decision to grant summary
judgment
de
novo,
applying
the
same
legal
standards
as
the
district court, and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T–Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,
384–85
(4th
Cir.
2012)
(internal
quotation
marks
omitted).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a).
Although the Fourteenth Amendment’s Equal Protection Clause
does not apply to the federal government, the Fifth Amendment’s
Due Process Clause contains an equal protection component.
See
Bolling
the
Supreme
v.
Sharpe,
Court
has
347
U.S.
497,
explained
499
that
(1954).
“the
equal
Indeed,
protection
obligations imposed by the Fifth and the Fourteenth Amendments
[are] indistinguishable.”
Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 217 (1995).
“To succeed on an equal protection claim, a plaintiff must
first
demonstrate
that
he
has
26
been
treated
differently
from
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 27 of 31
others with whom he is similarly situated and that the unequal
treatment
was
the
discrimination.”
Cir. 2001).
result
of
intentional
or
purposeful
Morrison v. Garraghty, 239 F.3d 648, 654 (4th
“Once this showing is made, the court proceeds to
determine whether the disparity in treatment can be justified
under the requisite level of scrutiny.”
Id.
Count III alleges that the challenged limits violate the
Fifth Amendment’s equal protection component by discriminating
against
MPCs
and
in
favor
of
political
committees
that
have
satisfied the other MPC criteria but have yet to complete the
waiting
period.
The
critical
case
governing
this
claim
is
California Medical Ass’n v. FEC, 453 U.S. 182 (1981) (“CMA”).
In
that
case,
an
doctors,
along
with
judgment
action
provision
unincorporated
other
plaintiffs,
challenging
prohibiting
association
the
of
brought
a
constitutionality
individuals
and
California
declaratory
of
a
FECA
unincorporated
associations from contributing more than $5,000 to any MPC in a
calendar year.
See id. at 185-86.
One basis for the challenge
was that the provision violated the equal protection component
of the Fifth Amendment’s Due Process Clause.
The
plaintiffs’
position
was
that
even
See id. at 200.
though
unincorporated
associations were similarly situated to corporations and labor
unions, the provision treated unincorporated associations more
harshly since corporations and labor unions were not subject to
27
Appeal: 15-1455
Doc: 32
a similar limit. 5
Filed: 02/23/2016
See id.
Pg: 28 of 31
The district court certified the
constitutional questions in the case to the Ninth Circuit, which
upheld the provision.
See id. at 186.
The plaintiffs then
sought review of that decision in the Supreme Court.
See id. at
186-87.
Like the Ninth Circuit, the Supreme Court concluded that
the challenged limit did not violate the Fifth Amendment.
The
Court reasoned as follows:
In order to conclude that [the restriction] . . .
violates the equal protection component of the Fifth
Amendment, we would have to find that because of this
provision [FECA] burdens the First Amendment rights of
persons subject to [the challenged restriction] to a
greater extent than it burdens the same rights of
corporations and unions, and that such differential
treatment is not justified. We need not consider this
second question — whether the discrimination alleged
by appellants is justified — because we find no such
discrimination. Appellants’ claim of unfair treatment
ignores the plain fact that the statute as a whole
imposes far fewer restrictions on individuals and
unincorporated
associations
than
it
does
on
corporations and unions.
Persons subject to the
[challenged
restriction]
may
make
unlimited
expenditures on political speech; corporations and
unions,
however,
may
make
only
the
limited
5
FECA allowed corporations and labor unions to pay for the
establishment, administration, and solicitation of a “‘separate
segregated fund to be utilized for political purposes.’”
California Med. Ass’n v. FEC, 453 U.S. 182, 200 (1981) (quoting
2 U.S.C. § 441b(b)(2)(C) (now 52 U.S.C. § 30118(b)(2)(C))).
There was no statutory limitation on the amount these groups
could spend on such funds. See id. And, the plaintiffs claimed
that the contributions of a corporation or labor union to its
segregated political fund should be considered to be directly
analogous to the contributions of an unincorporated association
to an MPC. See id.
28
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 29 of 31
contributions authorized by § 441b(b)(2) [now 52
U.S.C. § 30118(b)(2)].
Furthermore, individuals and
unincorporated
associations
may
contribute
to
candidates, to candidates’ committees, to national
party
committees,
and
to
all
other
political
committees
while
corporations
and
unions
are
absolutely barred from making any such contributions.
In addition, [MPCs] are generally unrestricted in the
manner
and
scope
of
their
solicitations;
the
segregated funds that unions and corporations may
establish pursuant to §441b(b)(2)(C) [now 52 U.S.C.
§ 30118(b)(2)(C)]
are
carefully
limited
in
this
regard.
Id. at 200-01 (emphasis in original).
The
reasons
FEC
in
argues
that
that
political
the
claims
committees
here
fail
similar
clearly
overall
for
receive
more favorable treatment under FECA than do other groups.
For
that reason, the FEC argues, there is no discrimination by FECA
against MPCs that must be justified.
We largely agree with the
FEC’s position, but with one caveat.
correct
to
the
extent
it
argues
We believe the FEC is
that
CMA
requires
us,
in
determining whether actionable discrimination has occurred, to
compare
the
treatment
the
relevant
respective
groups
receive
under FECA overall, not just the treatment the groups receive
under the specific provision of FECA that is being challenged.
We
conclude,
political
however,
committees
that
that
the
have
proper
become
comparison
MPCs
and
is
between
political
committees that have not completed the waiting period but have
satisfied the other MPC conditions.
29
It is those two groups,
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 30 of 31
after all, that Appellants maintain are similarly situated yet
treated differently under FECA.
Nevertheless,
that
FECA
in
overall
our
estimation,
burdens
the
Appellants
First
cannot
Amendment
show
rights
of
political committees that have become MPCs more than it burdens
the rights of political committees that have satisfied all MPC
requirements but the waiting period.
decrease
in
the
amount
of
That is so because the
contributions
that
political
committees, once they become MPCs, can make annually to state
party
committees
$5,000)
and
to
or
their
national
local
party
affiliates
committees
(from
(from
$10,000
to
$32,400
to
$15,000) is more than counteracted by the increase in the limits
in the amount of contributions that MPCs can make to individual
candidates (from $2,600 to $5,000).
To the extent that there is
a difference in treatment, it appears to us to favor the MPCs in
that the total amount of money MPCs can contribute overall will
be
substantially
individual
contribute.
greater
candidates
Because
to
since
there
which
the
Appellants
are
so
respective
cannot
many
different
entities
demonstrate
that
can
FECA
discriminates against MPCs, there is no discrimination to be
justified, and we conclude that the FEC was entitled to summary
judgment on Count III.
30
Appeal: 15-1455
Doc: 32
Filed: 02/23/2016
Pg: 31 of 31
V.
In
sum,
we
conclude
that
the
district
court
erred
in
adjudicating the merits of Counts I and II, as those claims
became
moot
once
the
political
committees
challenging
them
became MPCs and were no longer subject to the limitations they
were challenging.
Accordingly, we vacate the merits judgment on
those claims and remand to the district court with instructions
to dismiss them for lack of subject-matter jurisdiction.
other
hand,
summary
we
judgment
conclude
to
the
the
district
court
FEC
on
III,
Count
properly
and
we
On the
granted
therefore
affirm the judgment on that claim.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
WITH INSTRUCTIONS TO DISMISS
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?