                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                             )
REAR ADMIRAL JAMES CAREY     )
(Ret.), et al.,              )
                             )
         Plaintiffs,         )
                             )
    v.                       )                      Civil Action No. 11-259 (RMC)
                             )
FEDERAL ELECTION COMMISSION, )
                             )
         Defendants.         )
                             )


                                  MEMORANDUM OPINION

               Rear Adm. (Ret.) James J. Carey, the National Defense Political Action

Committee (“NDPAC”), and Kelly S. Eustis filed this suit together with a motion for preliminary

injunction, asking the Court to enjoin the Federal Election Commission (“FEC” or

“Commission”) from enforcing 2 U.S.C. §§ 441a(a)(1)(C) & 441a(a)(3) as applied to

contributions to NDPAC and independent expenditures by NDPAC. The Court granted the

injunction. See Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). Subsequently, the parties

entered into a consent judgment. As the prevailing party, Plaintiffs now move for costs and

attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The motion

will be granted in part and denied in part.

                                              I. FACTS

               A. Federal Election Campaign Law

               The Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431 et seq., inter alia,
imposes limits on the sources and amounts of contributions1 that may be made by individuals and

groups to federal candidates, party committees, and political action committees. Key to assessing

these limits is the identity of the receiver of those contributions and the purpose for which

contributions are expended. If contributions are directed toward a federal candidate’s personal

coffers, a candidate’s political action committee, or a committee of a political party, they are

subject to statutory limits because of the “strong governmental interest in combating corruption

and the appearance thereof” and because of the “close relationship between candidates and

parties.” EMILY’s List v. FEC, 581 F.3d 1, 8-9 (D.C. Cir. 2009). Section 441a(a)(1)(C) provides

that no person shall make contributions “to any other political committee . . . in any calendar year

which, in the aggregate, exceed $5,000.” 2 U.S.C. § 441a(a)(1)(C). Section 441a(a)(3) provides:

           During the period which begins on January 1 of an odd-numbered year
           and ends on December 31 of the next even-numbered year, no individual
           may make contributions aggregating more than –

                  (A) $37,500, in the case of contributions to candidates and the
           authorized committees of candidates;

                   (B) $57,500, in the case of any other contributions, of which not
           more than $37,500 may be attributable to political committees which are
           not political committees of national political parties.

Id. § 441a(a)(3). All contributions and expenditures made subject to these source and amount

limitations are referred to as “hard money.” See EMILY’s List, 581 F.3d at 27.

               Under §§ 441a(a)(1)(C) & 441a(a)(3), there is no distinction made between



       1
         Under FECA, a contribution is “any gift, subscription, loan, advance, or deposit of
money or anything of value made by any person for the purpose of influencing any election for
Federal office; or the payment by any person of compensation for the personal services of another
person which are rendered to a political committee without charge for any purpose.” 2 U.S.C.
§ 431(8).

                                                 -2-
political committees directly associated with parties/federal candidates and non-connected

political action committees.2 No distinction need be made if the non-connected political action

committee is merely funneling its contributions to federal candidates, their personal political

action committees, or political party committees. See EMILY’s List, 581 F.3d at 24–26.

However, if a non-connected political action committee is making independent expenditures3

wholly separate from federal candidates or parties, the analysis is different because there is not

the same governmental interest in preventing corruption. See id. at 9–11.

               Recent Supreme Court and D.C. Circuit cases have partially invalidated statutory

provisions within FECA with respect to limits placed on contributions for independent

expenditures in federal election campaigns. See Citizens United v. FEC, 130 S. Ct. 876 (2010);

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010); EMILY’s List, 581 F.3d 1. Contributions

for independent expenditures are not limited for this purpose and may be made from a “general

treasury account that is not subject to source and amount limits,” otherwise known as soft money.

See EMILY’s List, 581 F.3d at 27. These cases held that limits on soft money contributions used

for independent expenditures are unconstitutional because such a limitation violates a

contributor’s First Amendment right. See generally Citizens United, 130 S. Ct. 876;




       2
        “‘Non-connected’ means that the [political action committee] is not a candidate
committee, a party committee, or a committee established by a corporation or labor union.”
EMILY’s List, 581 F.3d at 15 n.7.
       3
          Independent expenditures are “expenditure[s] by a person – (A) expressly advocating
the election or defeat of a clearly identified candidate; and (B) that [are] not made in concert or
cooperation with or at the request or suggestion of such candidate, the candidate’s authorized
political committee, or their agents, or a political party committee or its agents.” 2 U.S.C. §
431(17).

                                                 -3-
SpeechNow.org, 599 F.3d 686; EMILY’s List, 581 F.3d 1.4

               B. Background

               Admiral Carey is the founder and treasurer of NDPAC, a political action

committee. NDPAC advocates limited government and enhanced commitment to American’s

veterans and soldiers. Compl. [Dkt. 1] ¶ 12. It raises and expends funds “in support of

candidates for federal office who are military veterans and agree with its values.” Id. NDPAC

“makes contributions to candidates for federal office up to the applicable limit and makes

independent expenditures in support or opposition of candidates.” Id. Ms. Eustis is a potential

contributor to NDPAC who would like to contribute more than the amount currently allowed

toward NDPAC’s independent expenditures in federal campaigns. Id. ¶ 13.

               On August 11, 2010, Plaintiffs submitted a request for an advisory opinion to the

Commission. See 2 U.S.C. § 437f (specifying the procedure for requesting advisory opinions).

They sought permission to accept unrestricted donations for independent expenditures into one

account so long as contributions to candidates were made and administered with restricted

donations from a separate account. On September 17, 2010, FEC issued a draft advisory opinion,

Draft A, concluding that contributions to NDPAC made to finance independent expenditures

were subject to the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and related regulations.

Compl., Ex. B. A few days later, on September 21, the Commission issued an alternative draft

advisory opinion, Draft B, concluding that contributions to NDPAC made to finance independent


       4
         These cases also found that hard money limits on expenditures that directly support
federal candidates, their authorized committees, or any political committee established and
maintained by a national political party are constitutional. See generally Citizens United, 130 S.
Ct. 876; SpeechNow.org, 599 F.3d 686; EMILY’s List, 581 F.3d 1. Plaintiffs do not contest the
Commission’s authority to regulate “hard money” under § 441a(a)(1)(A) and (B).

                                                -4-
expenditures were not subject to such limits. Compl., Ex. C. The Commission failed to approve

Draft A by a 2-3 vote and failed to approve Draft B by a 3-2 vote. A binding advisory opinion

requires at least four votes.5

                 Unable to obtain a binding and favorable advisory opinion, Plaintiffs filed this

suit. Here, they alleged that §§ 441a(a)(1)(C) & 441a(a)(3) imposed unconstitutional limits on

amounts an individual may contribute to a non-connected political committee such as NDPAC

with respect to independent expenditures. Plaintiffs disputed the constitutionality of any limit

when those contributions are maintained separately and used for independent federal

expenditures. Compl. ¶ 13.

                 This Court granted Plaintiffs’ motion for preliminary injunction. See Carey v.

FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). FEC had opposed the request for preliminary

injunction, failing to appreciate binding precedent: Citizens United, 130 S. Ct. 876;

SpeechNow.org, 599 F.3d 686; and EMILY’s List, 581 F.3d 1.6 Before this case was ever filed,

EMILY’s List had clearly and explicitly held, based on prior Supreme Court precedent, that soft



        5
            There are six commissioners. The sixth did not vote.
        6
            The Court noted:

                 This Court is instructed and bound by the decisions of the Supreme
                 Court and the D.C. Circuit Court of Appeals. The Commission
                 attempts to limit the scope of the Circuit’s recent decision in
                 EMILY’s List without success. The Circuit’s ruling was not
                 limited to the authority of the Commission to issue regulations, as
                 the Commission would posit, but included binding precedent on
                 the constitutional rights of non-connected political committees,
                 which the Commission unpersuasively argues is dicta.

Carey, 791 F. Supp. 2d at 129.

                                                  -5-
money maintained in a separate account was not subject to contribution or expenditure limits:

                      First, the Court has held that campaign contributions and expenditures
              constitute “speech” within the protection of the First Amendment.

              ....

                       Second, the Court has ruled that Government cannot limit campaign
              contributions and expenditures to achieve “equalization” – that is, it cannot
              restrict the speech of some so that others might have equal voice or influence in
              the electoral process. In perhaps the most important sentence in the Court’s entire
              campaign finance jurisprudence, Buckley [v. Valeo, 424 U.S. 1, 48-49 (1976)]
              stated: “[T]he concept that government may restrict the speech of some elements
              of our society in order to enhance the relative voice of others is wholly foreign to
              the First Amendment.”

              ....

                      Third, the Court has recognized a strong governmental interest in
              combating corruption and the appearance thereof . . . . This anticorruption interest
              is implicated by contributions to candidates . . . .
              ....

                       Fourth, in applying the anti-corruption rationale, the Court has afforded
              stronger protection to expenditures by citizens and groups . . . than it has provided
              to their contributions to candidates or parties.

              ....

                      Fifth, the Court has been somewhat more tolerant of regulation of for-
              profit corporations and labor unions.

              ....

                      To sum up so far: In reconciling the competing interests, the Supreme
              Court has generally approved statutory limits on contributions to candidates and
              political parties as consistent with the First Amendment. The Court has rejected
              expenditure limits on individuals, groups, candidates, and parties, even though
              expenditures may confer benefits on candidates.

Carey, 791 F. Supp. 2d at 129-30 (citing EMILY’s List, 581 F.3d at 5-8) (footnotes omitted).

              This Court held that EMILY’s List squarely applies to NDPAC because both


                                               -6-
organizations are “hybrid non-profits.” Carey, 791 F. Supp. 2d at 130. “EMILY’s List is a good

example of such a hybrid non-profit: It makes expenditures for advertisements, get-out-the-vote

efforts, and voter registration drives; it also makes direct contributions to candidates and parties.”

EMILY’s List, 581 F.3d at 12. “The constitutional principles that govern such a hybrid non-profit

entity follow ineluctably from the well-established principles governing the other two categories

of non-profits.” Id. This Court explained that by maintaining separate accounts for hard and soft

money, a hybrid non-profit like NDPAC can raise and spend unlimited funds for independent

federal expenditures. Thus, Plaintiffs showed a likelihood of success on the merits, see Carey,

791 F. Supp. 2d at 131-32, and satisfied the other criteria for an injunction. Id. at 132-36.

               On August 19, 2011, these parties all agreed to a Stipulated Order and Consent

Judgment, which provides as follows:

               1. The contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C)
               & 441a(a)(3), as well as any implementing regulations, are
               unconstitutional as applied to contributions NDPAC receives to
               make independent expenditures.

               2. The Commission shall not enforce 2 U.S.C. §§ 441a(a)(1)(C)
               & 441a(a)(3), as well as any implementing regulations, against
               Plaintiffs with regard to contributions NDPAC receives to make
               independent expenditures, as long as NDPAC maintains separate
               bank accounts (1) to receive such contributions for the purpose of
               making independent expenditures, and (2) to receive source- and
               amount-limited contributions for the purpose of making candidate
               contributions, and as long as each account pays a percentage of its
               administrative expenses that closely corresponds to the percentage
               of activity for that account, and complies with the applicable limits
               for the source- and amount-limited contributions it receives for the
               purpose of making candidate contributions.

Order and Judgment [Dkt. 28] at 2-3.

               Having prevailed, Plaintiffs seek attorneys’ fees and costs pursuant to EAJA. The


                                                 -7-
Commission agrees to an award of costs,7 but opposes an award of fees, arguing that its position

was substantially justified. The Commission also argues that, even if its position is found not to

be substantially justified, the fees sought are excessive.

                                     II. LEGAL STANDARD

                To qualify for an EAJA award, a plaintiff must establish that he was the prevailing

party; the burden then shifts to the government, which may avoid paying an EAJA award if its

position was substantially justified. Id. § 2412(d)(1).8 “Substantially justified” means “justified

in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). An agency’s

position is substantially justified if it is both legally and factually reasonable. Hill v. Gould, 555

F.3d 1003, 1006 (D.C. Cir. 2009). The government carries the burden of showing that the

underlying agency action giving rise to litigation and its litigation position were substantially

justified. See Wilkett v. Interstate Commerce Comm’n, 844 F.2d 867, 871 (D.C. Cir. 1988).




       7
          Plaintiffs request $350 in costs. Costs are recoverable under 28 U.S.C. § 2412(a)(1) and
28 U.S.C. § 1920. Because the Commission does not object, these costs will be awarded to
Plaintiffs.
       8
           The EAJA provides:

                [A] court shall award to a prevailing party . . . fees and other
                expenses . . . incurred by that party in any civil action . . . including
                proceedings for judicial review of agency action, brought by or
                against the United States . . . unless the court finds that the position
                of the United States was substantially justified or that special
                circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

                                                   -8-
                                          III. ANALYSIS

                 A. The Government’s Position Was Not Substantially Justified

                 The government does not dispute that Plaintiffs qualify as the prevailing party in

this litigation. Instead, the government argues that its position was “substantially justified.” See

28 U.S.C. § 2412(d)(1)(A). The Commission argues that Plaintiffs waived the argument that the

FEC’s prelitigation position was not justified because Plaintiffs failed to cite EMILY’s List in

their request for an advisory opinion.9 The Commission points out that in cases where a plaintiff

complains about an administrative action, issues not raised before the agency are deemed waived.

Opp. [Dkt. 30] at 9 n.3 (citing Boivil v. U.S. Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006)).

Failure to raise an issue, however, is not the same as failure to cite a specific case. Plaintiff did

not fail to make an argument. They argued to the FEC that limits on soft money contributions

used for independent expenditures are unconstitutional. Further, the FEC is supposed to be an

expert on federal election law and its attorneys are required to know the current status of election

law, especially Supreme Court and Circuit law. The FEC was responsible for knowing about the

opinion of the D.C. Circuit in EMILY’s List, as indeed it did.10

                 FEC also erroneously contends that two of its commissioners were reasonable in

believing the Circuit opinion in EMILY’s List was not binding on the agency. To the contrary,

EMILY’s List is binding precedent in this Circuit,11 which is where Plaintiffs sought an advisory


       9
          The Commission does not contend that NDPAC failed to cite EMILY’s List in this
litigation, as the case is cited in the Complaint. See Compl. ¶ 13.
       10
            Draft B of the advisory opinion cites EMILY’s List. See Compl., Ex. C.
       11
         See Industrial Turnaround Corp. v. NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (agencies
must abide by the law of a Circuit within the jurisdiction of that court).

                                                 -9-
opinion; the FEC ignored EMILY’s List, and this litigation ensued. Moreover, when EMILY’s

List struck down the regulations at issue there, the Circuit necessarily adjudicated the

applicability of the statutory provisions from which the regulations derived. The D.C. Circuit

held that “a non profit that makes expenditures and makes contributions to candidates” is

“entitled to make their expenditures . . . out of a[n] account that is not subject to source and

amount limitations.” 581 F.3d at 12. EMILY’s List is a non-affiliated organization just like

NDPAC. The opinion is determinative of this case. Because the Commission has failed to show

that its position was substantially justified in the face of this directly-applicable and binding

decision, Plaintiffs are entitled to attorneys’ fees under EAJA.

               B. Amount of Attorneys’ Fees

               Plaintiffs seek $141,253.03 in fees for the work of four attorneys: Dan Backer,

Stephen Hoersting, Benjamin Barr, and Allen Dickerson. Mr. Dickerson billed 30.5 hours, at the

rate of $181.37 per hour. Mr. Backer billed 304.75 hours through the time of filing the fee

petition, plus 15.5 for the reply in support of the fee petition, at the same rate, $181.37 per hour.

Mr. Barr billed 99.5 hours, plus 14.75 hours for the reply, at the rate of $200 per hour. Mr.

Hoersting billed 204.5 hours, plus 13.25 for the reply, at the rate of $250 per hour.

               The FEC contends that the full amount of fees sought – $141,253.03 – is

excessive because the case only proceeded through preliminary injunction, not through trial. The

FEC ignores the fact that NDPAC should not have had to file this suit at all. Plaintiffs sought an

advisory opinion in line with the ruling in EMILY’s List and when the FEC failed to provide one,

this case ensued. In addition to filing the complaint, Plaintiffs filed a motion for a preliminary

injunction and a motion to stay discovery. The motions were contested; Plaintiffs prevailed on


                                                 -10-
both. Plaintiffs have now filed a fee petition, which has been opposed. The number of attorney

hours billed was reasonable for the work that this case required.

               The Commission also contends that emails and conferences among counsel for

NDPAC should not be billed. But Plaintiffs’ counsel were justified in coordinating arguments

and litigation strategy. The FEC assails Plaintiffs’ lawyers for allegedly not exercising “billing

judgment.” Having reviewed the affidavits and billing records, the Court disagrees and finds the

hours billed to be reasonable.

               C. Hourly Rate

               The hourly rate at which attorneys’ fees can be recovered under § 2412(d)(1)(A) is

$125 unless a court determines that “an increase in the cost of living or a special factor, such as

the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee.”

28 U.S.C. § 2412(d)(2)(A). Because the statutory cap was set years ago, in 1996, courts routinely

approve cost-of-living adjustments. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969 (D.C.

Cir. 2004). As adjusted for cost of living, the standard $125 rate is now $181.37 per hour. The

Commission does not contest this rate. See Opp. at 21 n.6. Thus, the Plaintiffs counsel shall be

compensated at the rate of $181.37 per hour.

               Plaintiffs assert that Messrs. Barr ($200/hour) and Hoersting ($250/hour) should

be compensated at even higher rates under the “special factor” language of § 2412(d)(2)(A).

Plaintiffs base their request on these lawyers’ special expertise in election and campaign finance

law. But the D.C. Circuit has rejected the claim that campaign finance and election law

experience qualifies counsel for an enhanced fee under EAJA. See In re Sealed Case, 254 F.3d

233, 235-36 (D.C. Cir. 2001) (denying request for enhanced fee in election law case). In order to


                                                 -11-
qualify for a higher fee under EAJA, counsel must show “an identifiable practice specialty such

as patent law, or knowledge of foreign law or language.” Id. at 235. The Circuit noted that

“[a]lthough federal election law ‘involves a complex statutory and regulatory framework, the

field is not beyond the grasp of a competent practicing attorney with access to a law library and

the other accoutrements of modern legal practice.’” Id. at 236 (quoting Chynoweth v. Sullivan,

920 F.2d 648, 650 (10th Cir. 1990)). Counsel is not entitled to enhanced rates under the special

factor exception “based solely on expertise the lawyer acquired through practice in a specific area

of administrative law.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 950-51 (D.C. Cir.

2005). Attorneys who practice administrative law develop an expertise in a particular regulated

industry, and they ordinarily gain the expertise from practice and not from training. Id. Because

nothing in the EAJA suggests that Congress intended to make all counsel who practice

administrative law in a technical field eligible for a fee enhancement, expertise acquired through

practice is not deemed to be a special factor warranting fee enhancement. Id. (citing F.J. Vollmer

Co. v. Magaw, 102 F.3d 591, 598-99 (D.C. Cir. 1996)).

                Plaintiffs contend that enhanced rates are now justified due to new complexity in

election law — that the recent changes in the law have made the field obscure and difficult to

master. See Reply [Dkt. 33] at 19. Plaintiffs argue that the specialized practice bar for election

and campaign finance law requires more than an expertise in administrative law and an

understanding of the regulations. They contend:

               [P]ractitioners must be grounded in an obscure and relatively
               unpracticed area of constitutional law; they must understand the
               complicated maze of federal administrative law; and they must
               share a working knowledge of the incredibly intricate operation of
               campaign finance as it applies on-the-ground to political parties,


                                                -12-
               speakers, grassroots organizations, and policy groups.

Id. at 18-19. This may be so, but the Court is not convinced that election and campaign finance

law has changed so dramatically that binding Circuit precedent can be ignored. Accordingly, the

request for enhanced hourly rates will be denied.

                                       IV. CONCLUSION

               For the reasons stated, the Court will grant in part and deny in part Plaintiffs’

motion for attorneys’ fees and costs [Dkt. # 29]. Costs will be awarded in the amount of $350.

Attorneys’ fees may be recovered at the rate of $181.37 per hour. No later than June 4, 2012,

Plaintiffs shall file a revised affidavit of fees, together with a proposed order awarding fees, in

accordance with this Opinion. A memorializing Order accompanies this Memorandum Opinion.



DATE: May 22, 2012                                            /s/
                                               ROSEMARY M. COLLYER
                                               United States District Judge




                                                 -13-
