                          NOT FOR PUBLICATION

                  UNITED STATES COURT OF APPEALS                     FILED
                          FOR THE NINTH CIRCUIT                      OCT 02 2014

                                                                  MOLLY C. DWYER, CLERK
                                                                   U.S. COURT OF APPEALS

ROBIN FARRIS; RECALL DALE                   No. 12-35949
WASHAM, a Washington political
committee; OLDFIELD & HELSDON,              D.C. No. 3:11-cv-05431-RJB
PLLC, a Washington professional limited
liability company,
                                            ORDER AMENDING
            Plaintiffs - Appellants,        MEMORANDUM DISPOSITION
                                            AND DENYING PETITION FOR
      v.                                    REHEARING EN BANC

AMIT D. RANADE, Chair; GRANT S.
DEGGINGER, Attorney, Vice Chair;
KATHY TURNER; KATRINA ASAY, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ANDREA
MCNAMARA DOYLE, in His Official
Capacity as Interim Executive Director of
the Washington State Public Disclosure
Commission,

            Defendants - Appellees.

ROBIN FARRIS; RECALL DALE                   No. 13-35040
WASHAM, a Washington political
committee; OLDFIELD & HELSDON,              D.C. No. 3:11-cv-05431-RJB
PLLC, a Washington professional limited
liability company,
             Plaintiffs - Appellants,

       v.

AMIT D. RANADE, Chair; GRANT S.
DEGGINGER, Attorney, Vice Chair;
KATHY TURNER; KATRINA ASAY, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ANDREA
MCNAMARA DOYLE, in His Official
Capacity as Interim Executive Director of
the Washington State Public Disclosure
Commission,

             Defendants - Appellees.


Before: FISHER, GOULD and CHRISTEN, Circuit Judges.

      The memorandum disposition, filed July 11, 2014, is AMENDED.

      An amended memorandum disposition is filed concurrently with this order.

      Judges Gould and Christen have voted to deny Appellants’ petition for

rehearing en banc, and Judge Fisher so recommends.

      The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35. Appellants’ petition for rehearing en banc, filed July 25, 2014, is DENIED.

      No further petitions for rehearing will be accepted.



                                         2
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             OCT 02 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

ROBIN FARRIS; RECALL DALE                       No. 12-35949
WASHAM, a Washington political
committee; OLDFIELD & HELSDON,                  D.C. No. 3:11-cv-05431-RJB
PLLC, a Washington professional limited
liability company,
                                                AMENDED MEMORANDUM*
             Plaintiffs - Appellants,

       v.

AMIT D. RANADE, Chair; GRANT S.
DEGGINGER, Attorney, Vice Chair;
KATHY TURNER; KATRINA ASAY, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ANDREA
MCNAMARA DOYLE, in His Official
Capacity as Interim Executive Director of
the Washington State Public Disclosure
Commission,

             Defendants - Appellees.

ROBIN FARRIS; RECALL DALE                       No. 13-35040
WASHAM, a Washington political
committee; OLDFIELD & HELSDON,                  D.C. No. 3:11-cv-05431-RJB
PLLC, a Washington professional limited
liability company,

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
             Plaintiffs - Appellants,

       v.

AMIT D. RANADE, Chair; GRANT S.
DEGGINGER, Attorney, Vice Chair;
KATHY TURNER; KATRINA ASAY, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ANDREA
MCNAMARA DOYLE, in His Official
Capacity as Interim Executive Director of
the Washington State Public Disclosure
Commission,

             Defendants - Appellees.

                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                     Argued and Submitted February 6, 2014
                              Seattle, Washington

Before: FISHER, GOULD and CHRISTEN, Circuit Judges.

      The plaintiffs appeal the district court’s summary judgment order, insofar as

it declined to address the plaintiffs’ facial challenge to Washington Revised Code §

42.17A.405(3). They also appeal the district court’s ruling that their motion for

attorney’s fees was untimely and that they did not demonstrate excusable neglect

warranting an extension of the deadline. We have jurisdiction under 28 U.S.C. §



                                         2
1291. We affirm the summary judgment order but vacate and remand on the

attorney’s fees issue.

      1.     In Farris v. Seabrook (Farris I), 677 F.3d 858, 867 (9th Cir. 2012),

we affirmed the district court’s preliminary injunction order, concluding that “the

State did not identify a sufficiently important interest to justify [§ 42.17A.405(3)’s]

$800 limit on contributions to recall committees.”1 Most of the underlying facts

relevant to the current appeal are fully set forth in Farris I and need not be

repeated. Of particular relevance here, we acknowledged the State’s interest in

preventing the actuality or appearance of quid pro quo corruption in recall

elections, but likened Washington recall committees to political action committees

making independent expenditures to support or oppose candidates, for which

contribution limits had been invalidated because of tenuous connections or no

connection to the candidates themselves. See id. at 865-67. We explained that

“[n]either the State nor amici . . . presented any evidence showing that

contributions to recall committees in Washington raise the specter of corruption,

and certainly not in this case,” but noted that “the outcome might be different if

there were evidence that contributions were being made with a ‘wink and a nod’



      1
       The limit has since been raised to $950. See Wash. Admin. Code
§ 390-05-400.

                                           3
from Council members indicating that a particular candidate would be appointed.”

See id. at 867 & n.8.

      On remand, the district court’s summary judgment order applied Farris I to

the evidence presented and entered a permanent injunction, stating that the court

would “grant summary judgment for Plaintiffs and hold RCW § 42.17A.405(3)

unconstitutional as applied to Plaintiffs.” The court found that “[t]here is no

evidence of coordination of expenditures or ‘a wink and a nod’ to justify the

State’s anti-corruption interest. The Government has presented no evidence

demonstrating an issue of material fact regarding the appearance of or actual

corruption.” The district court also determined that “[b]ecause this Court should

provide Plaintiffs’ requested relief and hold that RCW § 42.17A.405(3) is

unconstitutional as applied to Plaintiffs, the Court need not address whether RCW

§ 42.17A.405(3) is unconstitutional on its face.”

      We agree with the district court’s decision not to address the plaintiffs’

broader facial challenge. Given the record in this case, the plaintiffs have received

all the relief to which they are entitled. The district court’s order was somewhat

ambiguous as to the scope of its injunctive relief, insofar as its application beyond

the immediate case. The court stated that § 42.17A.405(3) was unconstitutional as

applied to the plaintiffs, but also that the defendants were enjoined from enforcing


                                          4
§ 42.17A.405(3) “against Plaintiffs in this case only” (emphasis added). We

construe the district court’s order and corresponding injunction as precluding

enforcement of § 42.17A.405(3) against the plaintiffs in all similar circumstances,

where there is no evidence or appearance of corruption. The defendants

themselves have acknowledged that “the [Washington Public Disclosure]

Commission read the order in the broadest manner possible, i.e., that it is enjoined

from ever enforcing Wash. Rev. Code § 42.17A.405(3)’s contribution limits

against the Recall Proponents.”2 Even if there may be non-parties to this litigation

who generally may enforce § 42.17A.405(3) and who theoretically might not be

bound by the district court’s injunction, see Fed. R. Civ. P. 65(d)(2), Farris I and

the district court’s order clearly preclude enforcement of §42.17A.405(3) against

the plaintiffs when there is no evidence or appearance of corruption, because the

provision is unconstitutional in such instances. Accordingly, the plaintiffs have

received all the relief to which they are entitled.




      2
        The defendants also said that “until a court directs that the Commission
may interpret the order more narrowly, the Commission remains permanently
enjoined from enforcing the contribution limits against the Recall Proponents.”
We conclude that the Commission is enjoined from enforcing § 42.17A.405(3)
against the plaintiffs in the future, but, consistent with Farris I and as we have
emphasized, only in cases where there is no evidence or appearance of corruption.

                                           5
      This interpretation comports with the general notion that courts should favor

narrow constitutional rulings over broad ones.3 See, e.g., Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450 (2008) (“Facial challenges are

disfavored for several reasons.”); United States v. Raines, 362 U.S. 17, 21 (1960)

(“This Court . . . is bound by two rules, to which it has rigidly adhered: one, never

to anticipate a question of constitutional law in advance of the necessity of

deciding it; the other, never to formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied.” (internal quotation marks

omitted)); Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1144-45,

1155-56 (10th Cir. 2007) (holding that an as-applied ruling on part of a campaign

finance reform amendment was sufficient and that the court did not need to reach a

facial challenge, as “the nature of judicial review constrains a federal court to

consider only the case that is actually before it”).

      Finally, even if the district court abused its discretion in striking declarations

concerning standing that the plaintiffs filed with their reply brief, the additional

      3
        Plaintiffs argue that Citizens United v. Federal Election Commission, 558
U.S. 310 (2010), requires invalidating Wash. Rev. Code § 42.17A.405(3) on its
face. Citizens United, however, does not require facial invalidation when a
narrower remedy is sufficient. See id. at 333 (invalidating statute only after
rejecting narrower remedies as insufficient).



                                           6
recall campaign Jeffrey Helsdon described in his declaration did not include

evidence or the appearance of corruption. Accordingly, Farris I and the district

court’s order extend to this second recall campaign, so the plaintiffs’ challenge to

this portion of the court’s order is moot.

      2.      The district court correctly ruled that the plaintiffs’ motion for

attorney’s fees was filed after the applicable 14-day deadline. See Fed. R. Civ. P.

54(d)(2)(B) (“Unless a statute or a court order provides otherwise, the motion [for

attorney’s fees] must: (i) be filed no later than 14 days after the entry of judgment .

. . .”). On the other hand, the court erred in analyzing whether the plaintiffs’ error

was the result of excusable neglect and they were entitled to an extension of the

deadline. See Fed. R. Civ. P. 6(b)(1) (“When an act may or must be done within a

specified time, the court may, for good cause, extend the time: . . . (B) on motion

made after the time has expired if the party failed to act because of excusable

neglect.”).

      The court relied primarily on Kyle v. Campbell Soup Co., 28 F.3d 928 (9th

Cir. 1994), and the three-judge panel opinion in Pincay v. Andrews (Pincay I), 351

F.3d 947 (9th Cir. 2003), in evaluating possible excusable neglect. But we

reversed Pincay I in our en banc decision in the same case, see Pincay v. Andrews

(Pincay II), 389 F.3d 853, 860 (9th Cir. 2004) (en banc), and Pincay II cited Kyle


                                             7
as part of “[o]ur circuit’s confusion” on excusable neglect, id. at 857. Moreover,

the district court listed all four factors from Pioneer Investment Services Co. v.

Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), but did not address

the first and fourth in its analysis. See Pioneer, 507 U.S. at 395 (A court typically

considers four factors in determining whether a moving party engaged in excusable

neglect: (1) “the danger of prejudice” to the opposing party; (2) “the length of the

delay and its potential impact on judicial proceedings”; (3) “the reason for the

delay, including whether it was within the reasonable control of the movant”; and

(4) “whether the movant acted in good faith.”); see also Ahanchian v. Xenon

Pictures, Inc., 624 F.3d 1253, 1261-62 (9th Cir. 2010) (“[T]he district court here

neither cited nor applied the Pioneer[] test, but instead based its decision solely on

whether the reason for the delay – the third Pioneer[] factor – could establish

excusable neglect. By ignoring the other three factors, the district court abused its

discretion.”); Lemoge v. United States, 587 F.3d 1188, 1194 (9th Cir. 2009) (“[W]e

conclude that it will always be a better practice for the district court to touch upon

and analyze at least all four of the explicit Pioneer[] factors.”).




                                           8
      On remand, the district court should reevaluate the excusable neglect issue

by addressing all four factors of the Pioneer test under our current law.

      Costs on appeal awarded to the plaintiffs.

      The panel will retain jurisdiction of these cases.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                          9
