Wagner v. Fed. Election Comm'n

• Decision Date: 31 May 2013
• Docket Number: No. 12–5365.,12–5365.
• Citation: 717 F.3d 1007
• Parties: Wendy E. WAGNER, et al., Appellants v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

717 F.3d 1007

Wendy E. WAGNER, et al., Appellants

v.FEDERAL ELECTION COMMISSION, Appellee.

No. 12–5365.

United States Court of Appeals,District of Columbia Circuit.

Argued May 16, 2013.

Decided May 31, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–01841).

Alan B. Morrison argued the cause for the appellants. Arthur B. Spitzer was on brief.

Harry J. Summers, Assistant General Counsel, Federal Election Commission, argued the cause for the appellee. Anthony Herman, General Counsel, David B. Kolker, Associate General Counsel, Kevin Deeley, Acting Associate General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys, were on brief.

J. Gerald Hebert, Scott Nelson, Fred Wertheimer and Donald J. Simon were on brief for amici curiae Campaign Legal Center, et al. in support of the appellee.

Before: HENDERSON and GRIFFITH, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

The Federal Election Campaign Act (FECA) prohibits any “ person” contracting with the federal government from contributing to “any political party, committee, or candidate for public office or to any person for any political purpose or use” in a federal election. 2 U.S.C. § 441c(a) (1). Three federal contractors seek a declaration that section 441c abridges their freedom of speech guaranteed by the First Amendment to the United States Constitution and denies them the equal protection of the laws in violation of the Fifth Amendment. Concluding that FECA's judicial review provision, 2 U.S.C. § 437h, ousts both the district court and this panel of jurisdiction to consider the merits of the claims, we sua sponte vacate and remand to the district court to comply immediately with the procedures set forth in section 437h.

I

Appellants Wendy Wagner, Lawrence Brown and Jan Miller (collectively Appellants) hold consulting contracts with various agencies of the executive branch of the federal government and want to make political contributions for use in federal elections. In October 2011, Appellants sued the Federal Election Commission (FEC) seeking a declaration that section 441c violated both the First and the Fifth Amendments to the U.S. Constitution. They invoked the district court's jurisdiction under FECA's judicial review provision, 2 U.S.C. § 437h, as well as its federal question jurisdiction, 28 U.S.C. § 1331.

Under section 437h, a district court should perform three functions. First, it must develop a record for appellate review by making findings of fact. See Bread Political Action Comm. v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982) (Bread PAC ); Buckley v. Valeo, 519 F.2d 817, 818–19 (D.C.Cir.1975) (en banc) (per curiam). Second, the district court must determine whether the constitutional challenges are frivolous or involve settled legal questions. See Cal. Med. Ass'n v. FEC, 453 U.S. 182, 192 n. 14, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (CalMed ); Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir.1992) (en banc) (per curiam); Goland v. United States, 903 F.2d 1247, 1257 (9th Cir.1990). Finally, the district court must immediately certify the record and all non-frivolous constitutional questions to the en banc court of appeals. See CalMed, 453 U.S. at 192 n. 14, 101 S.Ct. 2712;see also Mariani v. United States, 212 F.3d 761, 769 (3d Cir.2000) (en banc).

Shortly after filing their complaint, Appellants moved the district court to first find certain facts and then to certify the case to the en banc court of appeals. The FEC opposed the motion on the ground that certification was premature. Apparently solely for the purpose of avoiding the certification requirement of section 437h, Appellants subsequently amended their complaint to invoke only the district court's federal question jurisdiction and also moved for a preliminary injunction.

The district court denied Appellants' preliminary injunction motion, concluding that they were unlikely to succeed on the merits of their constitutional claims. Wagner v. FEC, 854 F.Supp.2d 83, 87 (D.D.C.2012) ( Wagner I ). After additional discovery, the court granted summary judgment to the FEC. Wagner v. FEC, 901 F.Supp.2d 101 (D.D.C.2012) (Wagner II ). Before addressing the merits, the district court noted:

At first, Plaintiffs filed suit under 2 U.S.C. § 437h, which requires a district court to certify constitutional questions about FECA to its en banc appellate court. Plaintiffs changed their minds, however, and amended their complaint to follow the standard path of federal litigation. They are permitted to do so, and this Court has jurisdiction under 28 U.S.C. § 1331. See Bread PAC [, 455 U.S. at 585, 102 S.Ct. 1235] (“plaintiffs meeting the usual standing requirements can challenge provisions of [FECA] under the federal-question jurisdiction granted the federal courts by 28 U.S.C. § 1331”).

Id. at 104 (citation omitted).

On appeal, Appellants asserted—and the FEC did not contest—that this panel has jurisdiction under 28 U.S.C. § 1291 to hear their constitutional challenges. Noting the potential jurisdictional infirmity, however, we ordered the parties to submit supplemental briefs addressing whether section 437h vests exclusive jurisdiction over Appellants' constitutional claims in the en banc court of appeals. Both parties argue in their supplemental briefs that section 437h does not confer exclusive jurisdiction on the en banc court of appeals, asserting instead that Appellants can elect to bring suit under either section 437h or section 1331. We must nonetheless assure ourselves of both the district court's and our own jurisdiction whether or not the parties challenge it. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C.Cir.1996). The question we must decide, then, is whether section 437h gives exclusive jurisdiction to the en banc court to decide Appellants' constitutional claims. ¹

II

A

In construing section 437h, “[w]e begin, as always, with the text of the statute.” Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 197, 127 S.Ct. 2352, 168 L.Ed.2d 85 (2007); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Section 437h provides:

The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

2 U.S.C. § 437h. As originally enacted, section 437h contained two additional provisions. Subsection (b) provided for direct appeal to the Supreme Court. Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93–443, § 208(a), 88 Stat. 1263, 1285–86 (codified at 2 U.S.C. § 437h(b) (1976)). Subsection (c) required both the courts of appeals and the Supreme Court “to advance on the docket and to expedite to the greatest possible extent” any matter certified under section 437h. Id. (codified at 2 U.S.C. § 437h(c) (1976)). The Congress repealed subsection 437h(c) in 1984, Pub.L. No. 98–620, § 402(1)(B), 98 Stat. 3335, 3357 (1984), and subsection 437h(b) in 1988, Pub.L. No. 100–352, § 6(a), 102 Stat. 662, 663 (1988).

FECA provides “two routes” by which a party may obtain judicial review of the constitutionality of FECA. CalMed, 453 U.S. at 188, 101 S.Ct. 2712. In addition to section 437h, a party may also mount a constitutional defense to an FEC enforcement action brought under 2 U.S.C. § 437g. Id. While the section 437g route is available to any party subject to an FEC enforcement proceeding, only the parties specifically enumerated in section 437h—the FEC, the national committees of politicalparties and individual voters—may invoke its “extraordinary procedures.” Bread PAC, 455 U.S. at 585, 102 S.Ct. 1235. Those plaintiffs not enumerated in section 437h “are remitted to the usual remedies” outside FECA, including the federal question jurisdiction supplied by section 1331. Id. at 584, 102 S.Ct. 1235. The unanswered question is whether the enumerated parties may also avail themselves of the “usual remedies.”

The district court concluded that they may but its rationale was flawed. The court premised its jurisdiction solely on the Supreme Court's dictum in Bread PAC: “ ‘[P]laintiffs meeting the usual standing requirements can challenge provisions of [FECA] under the federal-question jurisdiction granted the federal courts by 28 U.S.C. § 1331.’ ” Wagner II, 901 F.Supp.2d at 104 (quoting Bread PAC, 455 U.S. at 585, 102 S.Ct. 1235). A reading of the paragraph from which the language is drawn reveals that this dictum is inapposite here. The Supreme Court in Bread PAC stated that plaintiffs not enumerated in section 437h, and therefore ineligible to invoke its procedures, may challenge the constitutionality of FECA under section 1331 only.² It said nothing, however, about the availability of section 1331 jurisdiction to the parties enumerated in section 437h.

The only other inferior tribunal to have addressed the question has answered it in the negative. In FEC v. Lance, 617 F.2d 365, 367–68 (5th Cir.1980) ( Lance I ), Bert Lance, the target of an FEC investigation, fought an administrative subpoena by arguing, inter alia, that a provision of FECA violated the First Amendment. Id. at 368. On appeal, a panel of the Fifth Circuit rejected all of Lance's non-constitutional arguments but held that both the district court and the panel itself lacked jurisdiction to hear the constitutional challenge. Id. at 374. It reasoned that “Congre...