The Real Truth About Obama, Inc., v. FEC and U.S. Department of Justice (Appeals court)

On June 8, 2010, the U.S. Court of Appeals for the Fourth Circuit reissued its opinion in part, and remanded the case to the district court for further consideration in light of the Supreme Court’s holding in Citizens United and the Solicitor General’s suggestion of mootness.

On July 30, 2008, The Real Truth About Obama, Inc. (RTAO), filed a complaint in the U.S. District Court for the Eastern District of Virginia challenging the constitutionality of three FEC regulations and an FEC enforcement analysis. At the same time, RTAO filed a Motion for Preliminary Injunction which sought to enjoin the FEC and DOJ from enforcing the challenged analysis and regulations. In September 2008, the district court denied RTAO’s motion, concluding that RTAO was unlikely to succeed on the merits of its claims that the challenged provisions were unconstitutional. The court also concluded that granting the injunction would cause greater harm to the government than to RTAO. RTAO appealed the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit, and in August 2009, that court also denied RTAO’s motion for an injunction.

In December 2009, RTAO filed a Petition for a Writ of Certiorari with the U.S. Supreme Court stating, among other things, that the appellate court applied an incorrect legal standard in denying its request for a preliminary injunction. The FEC argued that the Court of Appeals applied the correct standard in denying RTAO’s motion and that certain issues are moot as a result of subsequent litigation. The FEC requested that the Court grant the Petition for Writ of Certiorari and vacate the appellate court’s judgment with respect to some of the challenged regulations, and requested that the Court remand the case with instructions to declare those claims moot. On April 26, 2010, the U.S. Supreme Court granted RTAO’s Petition for Writ of Certiorari, vacated the appellate court’s judgment and remanded the case to the Court of Appeals for further consideration in light of the Supreme Court’s holding in Citizens United and the Solicitor General’s suggestion of mootness. In its per curium Order on remand, the Court of Appeals reissued its opinion on the facts and legal standard for issuing a preliminary injunction. The Court of Appeals remanded the remaining issues to the district court for further consideration.

The text of the court’s order is available at http://www.fec.gov/law/litigation/rtao_ac_order_percuriam.pdf.