Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 1 of 56 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

HERITAGE ACTION FOR AMERICA, ) 

) 

Plaintiff, ) Civ. No. 22-1422 (CJN) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, et al., ) OPPOSITION TO MOTION 

) FOR SUMMARY JUDGMENT 

Defendants. ) 

) 

FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

Lisa Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

August 26, 2022 (202) 694-1650 
 

 

 

 

Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 2 of 56 

TABLE OF CONTENTS 

PAGE 

BACKGROUND .......................................................................................................................2 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT 

PROCEDURES..............................................................................................................2 

II. FACTUAL BACKGROUND........................................................................................5 

A. The Administrative Proceedings Related to this Action....................................5 

B. This Judicial-Review Action..............................................................................7 

ARGUMENT...........................................................................................................................10 

I. STANDARD OF REVIEW .........................................................................................10 

A. Standard of Review on a Motion for Summary Judgment ..............................10 

B. Standard of Review on APA Claims ...............................................................12 

C. Agency Deference............................................................................................13 

II. PLAINTIFF’S FAILURE TO FILE THE REQUIRED 

STATEMENT OF FACTS IS AN INDEPENDENT BASIS TO 

DENY IT SUMMARY JUDGMENT .........................................................................17 

III. PLAINTIFF’S CLAIMS ARE PRECLUDED BECAUSE 

FECA’S JUDICIAL REVIEW PROVISION IS THE EXCLUSIVE 

PROCEDURE TO CHALLENGE THE FEC’S HANDLING OF 

ENFORCEMENT PROCEEDINGS ...........................................................................18 

IV. PLAINTIFF’S MUR 7516 ALLEGATIONS ARE MOOT ........................................20 

V. PLAINTIFF LACKS STANDING TO PURSUE ITS BROAD 

“CONCEALMENT POLICY” ALLEGATIONS ON BEHALF 

OF UNNAMED THIRD PARTIES.............................................................................21 

VI. PLAINTIFF’S APA CLAIMS FAIL AS A MATTER OF LAW, 

AND EVEN IF THE CLAIMS WERE REVIEWABLE, PLAINTIFF 

HAS FAILED TO OFFER EVIDENCE SUFFICIENT TO 

JUSTIFY SUMMARY JUDGMENT..........................................................................23 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 3 of 56 

A. The Commission’s Longstanding Approach to the 

Termination of Its Administrative Enforcement Proceedings 

Reflects a Permissible Interpretation of FECA and the 

Agency’s Regulations ......................................................................................24 

B. Plaintiff’s APA Claims Fail Because the FEC’s 

Determination as to When to Terminate Enforcement 

Proceedings Is Committed to the Agency’s Discretion ...................................31 

C. Plaintiff’s APA Claims Fail Because It Has Not 

Challenged any Final, Discrete Agency Action...............................................34 

D. Plaintiff Has Not Proven that the Commission Acted 

Contrary To Law, Nor That Its Actions Were Arbitrary 

And Capricious Under the APA ......................................................................37 

E. Plaintiff Has Not Proven that the Commission 

Unlawfully Withheld or Unreasonably Delayed in the 

Disclosure of Records......................................................................................42 

VII. PLAINTIFF’S MANDAMUS CLAIM FAILS AS A 

MATTER OF LAW BECAUSE PLAINTIFF CANNOT 

ESTABLISH A CLEAR AND INDISPUTABLE RIGHT 

TO THAT DRASTIC RELIEF....................................................................................44 

CONCLUSION........................................................................................................................45 

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TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....................................................................... 11 

Am. Fed’n of Gov’t Emps. v. Trump, 929 F.3d 748 (D.C. Cir. 2019)........................................... 18 

Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. FEC, 

177 F. Supp. 2d 48 (D.D.C. 2001)............................................................................................. 25 

Am. Legal Found. v. Fed. Commc’ns Comm’n, 808 F.2d 84 (D.C. Cir. 1987) ............................ 22 

American Horse Protection Ass’n v. Yeutter, 917 F.2d 594 (D.C. Cir. 1990)........................ 12, 38 

Bark v. U.S. Forest Serv., 37 F. Supp. 3d 41 (D.D.C. 2014)........................................................ 34 

Beam v. Gonzales, 548 F. Supp. 2d 596 (N.D. Ill. 2008) ....................................................... 19, 32 

Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................... 22, 38 

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984)......................................................... 18, 19, 20 

Bowles v. Russell, 551 U.S. 205 (2007)........................................................................................ 18 

Buckley v. Valeo, 424 U.S. 1 (1976)......................................................................................... 2, 15 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ................................................ 23, 39 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984) ................................................................................................ 13, 14, 16, 26 

Citizens for Resp. & Ethics in Wash. v. FEC, 

164 F. Supp. 3d 113 (D.D.C. 2015)........................................................................................... 40 

Citizens for Resp. & Ethics in Wash. v. FEC, 

209 F. Supp. 3d 77, 87 (D.D.C. 2016)........................................................................... 14, 15, 24 

Citizens for Resp. & Ethics in Wash. v. FEC, 

236 F. Supp. 3d 378 (D.C. Cir. 2017) ....................................................................................... 28 

Citizens for Resp. & Ethics in Wash. v. FEC, 

799 F. Supp. 2d 78 (D.D.C. 2011)....................................................................................... 20, 28 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 5 of 56 

Citizens for Resp. & Ethics in Wash. v. FEC, 

892 F.3d 434 (D.C. Cir. 2018)................................................................................. 24, 28, 31, 33 

Citizens for Resp. & Ethics in Wash. v. FEC, 

971 F.3d 340 (D.C. Cir. 2020)................................................................................................... 28 

Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991)....................................................... 10 

Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006)........................................................... 36, 37 

Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) ....................................................................... 37 

Combat Veterans for Cong. Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015)................................................................................................... 15 

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ..................................................... 13, 43 

Def’s. of Wildlife v. Dep’t of Agric., 

311 F. Supp. 2d 44 (D.D.C. 2004)....................................................................................... 11, 36 

Del Monte v. U.S., 706 F. Supp. 2d 116 (D.D.C. 2010) ............................................................... 37 

Democratic Senatorial Campaign Comm. v. FEC, 

139 F.3d 951 (D.C. Cir. 1998)................................................................................................... 11 

Diamond v. Charles, 476 U.S. 54 (1986) ..................................................................................... 22 

Doe 1 v. FEC, 302 F. Supp. 3d 160 (D.D.C. 2018).................................................... 14, 27, 29, 38 

Doe v. Sec. & Exch. Comm’n, 28 F.4th 1306 (D.C. Cir. 2022)........................................ 16, 17, 30 

Doe 1 v. FEC, 920 F.3d 866 (D.C. Cir. 2019)........................................................................ 14, 28 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)........................... 14, 15, 16 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .................................... 5 

FEC v. Nat'l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992)........................38-39 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986)........................................................................ 42, 44 

Fieger v. Gonzales, Civ. No. 07-10533, 

2007 WL 2351006 (E.D. Mich. Aug. 15, 2007)......................................................19-20, 33, 43 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 

528 U.S. 167 (2000) .................................................................................................................. 21 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 6 of 56 

Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91................................................................... 11 

Heckler v. Chaney, 470 U.S. 821 (1985) ...................................................................................... 31 

Humane Soc’y of the U.S. v. Perdue, 935 F.3d 598 (D.C. Cir. 2019) .......................................... 11 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991).................................................................... 44 

In re Monroe Communications Corp., 840 F.2d 942 (D.C. Cir. 1988) ........................................ 44 

In re Nat. Cong. Club, Civ. No. 84-5701, 1984 WL 148396 (D.C. Cir. Oct. 24, 1984) ........ 13, 42 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000)........................................................................ 14 

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 

101 F.3d 145 (D.C. Cir. 1996)................................................................................................... 17 

Jones v. Coty Inc., 362 F. Supp. 3d 1182 (S.D. Ala. 2018).......................................................... 23 

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) .............................................................................. 28 

Jud. Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003)........................................................ 22 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)............................................................................ 16, 17, 30 

Lujan v. Def’s. of Wildlife, 504 U.S. 555 (1992) .........................................................11, 21-22, 23 

Martin v. Occupational Safety & Health Rev. Comm’n, 

499 U.S. 144 (1991) ............................................................................................................ 16, 17 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .................................................................................................................... 12 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013).............................................................................. 21 

Nat’l Ass’n for Better Broad. v. Fed. Commc’ns Comm’n, 830 F.2d 270 (D.C. Cir. 1987)......... 40 

Nat’l Lifeline Ass'n v. Fed. Commc’ns Comm’n, 

983 F.3d 498 (D.C. Cir. 2020)................................................................................................... 16 

Norton v. S. Utah Wilderness, 542 U.S. 55 (2004)................................................................. 24, 37 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)...................................................................... 12, 14 

Orlov v. Howard, 523 F. Supp. 2d 30 (D.D.C. 2007)............................................................. 24, 37 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 7 of 56 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)................................................................................. 42 

Public Citizen, Inc. v. Fed. Energy Regulatory Comm’n, 

839 F.3d 1165 (D.C. Cir. 2016)................................................................................................. 15 

Robinson v. District of Columbia, 130 F. Supp. 3d 180 (D.D.C. 2015)....................................... 17 

Rumber v. District of Columbia, 595 F.3d 1298 (D.C. Cir. 2010) ............................................... 22 

San Luis Obispo Mothers for Peace v. NRC, 

789 F.2d 26 (D.C. Cir. 1986)..................................................................................................... 12 

Secretary of Labor v. Twentymile Coal Co., 

456 F.3d 151 (D.C. Cir. 2006)................................................................................................... 31 

Select Specialty Hosp.-Bloomington, Inc. v. Sebelius, 

774 F. Supp. 2d 332 (D.D.C. 2011)........................................................................................... 16 

Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998)........................................ 14, 24, 26 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) ..................................................................... 11 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011)................................................................ 19 

Spannaus v. FEC, 990 F.2d 643 (D.C. Cir. 1993) ........................................................................ 28 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)............................................................... 19, 33, 43 

Telecommunications Research and Action Ctr. v. F.C.C., 

750 F.2d 70 (D.C. Cir. 1984)......................................................................................... 13, 43, 44 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)............................................................. 16 

Udall v. Tallman, 380 U.S. 1 (1965)............................................................................................. 16 

United States v. Collins, Civ. No. 14-80409, 2015 WL 12556167 (S.D. Fla. Apr. 3, 2015) ....... 23 

United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980).............................................. 41 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..................................................................... 12 

Warth v. Seldin, 422 U.S. 490 (1975)........................................................................................... 22 

Wy. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43 (D.C. Cir. 1999) ............................. 16, 30 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 8 of 56 

Statutes and Regulations 

5 U.S.C. § 555................................................................................................................................. 9 

52 U.S.C. § 30109(a)(4)......................................................................................................... passim 

52 U.S.C. § 30109(a)(8)......................................................................................................... passim 

5 U.S.C. § 701......................................................................................................................... 31, 34 

5 U.S.C. § 704......................................................................................................................... 18, 19 

5 U.S.C. § 706........................................................................................................... 8, 9, 24, 35, 37 

28 U.S.C. § 1361....................................................................................................................... 9, 35 

52 U.S.C. §§ 30101-46 ................................................................................................................... 2 

52 U.S.C. § 30104....................................................................................................................... 5, 6 

52 U.S.C. § 30106..................................................................................................... 2, 4, 29, 32, 39 

52 U.S.C. § 30107........................................................................................................... 2, 4, 32, 39 

52 U.S.C. § 30108........................................................................................................................... 2 

52 U.S.C. § 30109........................................................................................................................... 2 

52 U.S.C. § 30109(a)(1)........................................................................................................ 2, 3, 26 

52 U.S.C. § 30109(a)(2).................................................................................................. 2, 4, 26, 29 

52 U.S.C. § 30109(a)(6).................................................................................................................. 2 

52 U.S.C. § 30109(a)(12)................................................................................................................ 3 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

11 C.F.R. § 5.4.............................................................................................................................. 26 

11 C.F.R. § 111.9............................................................................................................ 8, 9, 28, 30 

11 C.F.R. § 111.20.......................................................................................... 3, 8, 9, 14, 28, 29, 30 

11 C.F.R. § 111.21.......................................................................................................................... 3 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 9 of 56 

Miscellaneous 

FEC, Commission Directive No. 52 (Circulation Vote Proc.) ....................................................... 4 

FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) ............................................................................................ 4 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 

72 Fed. Reg. 12,545 (Mar. 16, 2007) ...................................................................................... 3, 4 

Fed. R. Civ. P. 56.................................................................................................................... 10, 11 

H. Rep. No. 94-917, 94th Congress (1975-76)............................................................................. 15 

H.R. 12406, 94th Congress (1975-76).......................................................................................... 15 

Symposium on Campaign Finance Enforcement: A Comparative View, 

11 J. L. & Pol. 1 (1995) .....................................................................................................33 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 10 of 56 

The Federal Election Commission (“FEC” or “Commission”) opposes plaintiff Heritage 

Action for America’s (“Heritage Action”) Cross-Motion for Summary Judgment (“Motion” or 

“MSJ”) (Docket No. 20) because plaintiff has failed to establish jurisdiction, failed to state a 

claim, and failed to provide evidence sufficient to justify summary judgment. As a threshold 

matter, plaintiff’s claims should be dismissed for the reasons detailed in the FEC’s Motion to 

Dismiss (“MTD”) (Docket No. 17). They are precluded because the judicial review provision of 

the Federal Election Campaign Act, 52 U.S.C. § 30109(a)(8), is the exclusive means of 

challenging the FEC’s handling of administrative enforcement matters. In addition, plaintiff is in 

possession of all the information it seeks as to the FEC matter in which it is a respondent, 

rendering that portion of its claims moot, and plaintiff has not established standing to obtain any 

relief on behalf of unnamed third parties as to its broad “concealment policy” claims. And 

plaintiff fails even to state a claim under the Administrative Procedure Act (“APA”) because the 

actions it challenges are committed to the FEC’s discretion by law and there is no reviewable 

“final agency action.” 

Even if plaintiff’s claims were reviewable, they would fall well short of justifying 

summary judgment under standards of APA review. The agency’s long-standing practice to hold 

votes to terminate its administrative enforcement matters (“MURs”) represents a reasonable 

interpretation of FECA and its regulations to which the Court should defer, as well as a 

quintessential exercise of agency discretion in law enforcement. Plaintiff has also failed to 

provide evidence of final agency action that would be sufficient at summary judgment, offering 

little more than speculation regarding matters it claims reflect an alleged “concealment policy,” 

other than a statement by three FEC Commissioners which references seven other proceedings 

without identifying them. Plaintiff’s allegations that the FEC’s conduct violates the APA rest on 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 11 of 56 

a single unsupported premise, that the vaguely identified MURs in question have already 

terminated or must be deemed to have done so, but plaintiff has not come close to offering facts 

to show that is the case. The plain language of FECA and the FEC regulations simply do not 

require the termination of a proceeding following a single vote on the merits of the complaint, 

nor do they require the disclosure of records in the way plaintiff would prefer. Finally, plaintiff 

has failed to show a failure to act in any MUR under the relevant standards. Yet plaintiff 

demands sweeping relief that would invade agency discretion and alter longstanding agency 

enforcement practices, on the basis of vague claims about a handful of matters, out of the 

hundreds of other MURs that the agency has closed during the relevant period. 

Plaintiff’s Motion should be denied. 

BACKGROUND 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES 

As the FEC explained in its Motion to Dismiss (MTD at 2-5), the FEC is an 

independent agency of the United States government with jurisdiction over the administration, 

interpretation, and civil enforcement of the Federal Election Campaign Act, 52 U.S.C. §§ 30101-

46 (“FECA”). See generally 52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. Congress provided for 

the FEC to “prepare written rules for the conduct of its activities,” 52 U.S.C. § 30106(e), 

“formulate policy” under FECA, see, e.g., 52 U.S.C. § 30106(b)(1), and make rules and issue 

advisory opinions, 52 U.S.C. §§ 30107(a)(7), (8); id. §§ 30108; 30111(a)(8); see also Buckley v. 

Valeo, 424 U.S. 1, 110-11 (1976) (per curiam). The Commission is also authorized to 

investigate possible violations of FECA, 52 U.S.C. § 30109(a)(1)-(2), and to initiate civil 

enforcement actions in the United States district courts, id. §§ 30106(b)(1), 30107(a)(6), 

30107(e), 30109(a)(6). 

FECA permits any person to file an administrative complaint with the Commission 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 12 of 56 

alleging a violation of the statute. 52 U.S.C. § 30109(a)(1). Absent waiver, proceedings on such 

complaints are covered by confidentiality protections, 52 U.S.C. § 30109(a)(12), 11 C.F.R. § 

111.21, until the Commission “terminates its proceedings,” 11 C.F.R. § 111.20. Upon receipt of 

an administrative complaint, the Commission’s Office of General Counsel (“OGC”) provides 

anyone alleged to have committed such a violation, referred to as a respondent, with an 

opportunity to respond, then prepares a report to the Commission known as a General Counsel’s 

Report. The first General Counsel’s Report in an enforcement MUR usually includes a 

recommendation that the Commission take actions regarding the alleged violations, including 

most commonly: (1) find reason to believe that a violation occurred and open an investigation; 

(2) find no reason to believe a violation occurred; (3) dismiss the matter as an exercise of 

prosecutorial discretion; or (4) dismiss the matter with a cautionary message to the respondent 

regarding its legal obligations. And FEC votes at this stage are frequently, although not always, 

on whether to take one or more of these courses of action. See Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 

12,545 (Mar. 16, 2007). But other types of votes sometimes take place in advance of votes on 

whether there is a reason to believe a violation occurred or to dismiss. Other closed matters 

provide examples of such votes. See, e.g., FEC MUR 6798 (David Vitter for U.S. Senate).1 

Generally, if one or more Commissioners objects to a first General Counsel’s Report after 

it has been circulated to the Commission, or if fewer than four Commissioners vote to approve or 

reject the report’s recommendations by the voting deadline, the Commission considers the 

Certification, FEC MUR 6798 (David Vitter for U.S. Senate, et al.) (Dec. 5, 2017) (4-1 

vote to send letter to respondents), https://www.fec.gov/files/legal/murs/6798/19044463470.pdf; 

Certification, FEC MUR 6798 (March 26, 2019) (2-2 vote to find reason to believe and 4-0 vote 

to close the file), https://www.fec.gov/files/legal/murs/6798/19044463493.pdf. 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 13 of 56 

enforcement matter at an Executive Session. See generally FEC, Commission Directive No. 52 

(Circulation Vote Proc.) (effective Dec. 1, 2016). During such meetings, the Commissioners 

may, inter alia, vote on potential actions like those described above, including whether there is 

“reason to believe” that a FECA violation has occurred. 52 U.S.C. § 30109(a)(2). 

If at least four members of the Commission vote to find “reason to believe” a FECA 

violation has occurred, the Commission must notify the respondent of the alleged violation and 

its factual basis, and the agency then ordinarily investigates the allegations. 52 U.S.C. 

§ 30109(a)(2). But if at least four Commissioners determine that there is “no reason to believe” 

a violation occurred or that it is otherwise not appropriate to proceed with an investigation, they 

may vote to dismiss and to close the file in the matter. Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 

12,545, 12,546. Further administrative proceedings may involve conciliation with respondents 

or a de novo civil enforcement suit. (MTD at 4.) After the termination of enforcement matters, 

the Commission places on the public record categories of documents integral to its decisionmaking process, including certifications of Commission votes. FEC, Disclosure of Certain 

Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016). 

FECA provides that the administrative complainant may seek judicial review in this 

District, pursuant to 52 U.S.C. § 30109(a)(8)(A), alleging that the FEC has unlawfully dismissed 

or failed to act on a complaint. Defense of such cases may only be approved through an 

affirmative vote of four members of the Commission. 52 U.S.C. §§ 30106(c), 30107(a)(6). If a 

court declares that a dismissal or failure to act is “contrary to law,” the court can order the FEC 

to conform to that declaration within 30 days. Id. § 30109(a)(8)(C). If the FEC fails to do so, 

the complainant may obtain a private right of action against the administrative respondent. Id.; 

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Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 14 of 56 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 (1985). 

II. FACTUAL BACKGROUND 

A. Administrative Proceedings Related to this Action 

As explained in the FEC’s Motion to Dismiss (MTD at 5-7), on October 16, 2018, the 

Campaign Legal Center (“CLC”) and an individual, Margaret Christ, filed an administrative 

complaint with the FEC against Heritage Action. See FEC MUR 7516 (Heritage Action for 

America), https://www.fec.gov/data/legal/matter-under-review/7516/ (last visited July 18, 2022) 

(hereinafter “MUR 7516 Pub. Rec.”) (Complaint dated Oct. 16, 2018). The FEC designated the 

enforcement matter as MUR 7516. Id. (Notification of Complaint to Heritage Action for 

America dated Oct. 22, 2018). After evaluating available information, OGC drafted a 

comprehensive First General Counsel’s Report, providing that Report to the Commission on 

February 19, 2021. Id. (First General Counsel’s Report dated Feb. 19, 2021). 

On April 6, 2021, the Commission voted on whether there was reason to believe that 

Heritage Action had “violated 52 U.S.C. § 30104(c)(1) by failing to disclose donors who 

contributed for political purposes” and “52 U.S.C. § 30104(c)(2)(C) by failing to further identify 

the donors who donated for the purpose of funding an independent expenditure.” MUR 7516 

Pub. Rec. (Certification dated April 6, 2021). The Commissioners divided 3-3 on this vote. Id. 

That same day, the Commissioners voted on whether to close the administrative file for MUR 

7516, which has long been the agency’s customary method to terminate the proceedings on an 

administrative enforcement matter, but that vote split 3-3 and thus did not succeed. Id. 

Meanwhile, on February 16, 2021, CLC sued the FEC, claiming that it had failed to act 

on CLC’s administrative complaint and that this inaction was contrary to law under 52 U.S.C. § 

30109(a)(8)(A). CLC v. FEC, Civ. No. 21-406 (D.D.C.) (Feb. 16, 2021) (Docket No. 1). On 

March 25, 2022, after there had not been the four votes necessary for the agency to defend the 

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action alleging that it had failed to act on MUR 7516, the court in CLC v. FEC (No. 21-406) 

entered default judgment against the FEC and ordered the agency to conform to its judgment 

pursuant to 52 U.S.C. § 30109(a)(8)(C). Id. (Docket No. 16). 

Also on March 25, 2022, Heritage Action submitted a Freedom of Information Act 

(“FOIA”) request to the FEC seeking any vote certifications and statements of reasons in MUR 

7516. CLC v. Heritage Action, Civ. No. 22-01248 (D.D.C.) (July 8, 2022) (Docket No. 20-6). 

On April 7, 2022, the Commissioners divided 3-2 and 3-1 on further votes to find reason 

to believe that Heritage Action had violated 52 U.S.C. § 30104(c)(1) and 52 U.S.C. § 

30104(c)(2)(C). MUR 7516 Pub. Rec. (Certification dated April 7, 2022). That same day, the 

Commissioners split 3-3 on two votes to close the file in MUR 7516. Id. 

On May 5, 2022, after more than 30 days had elapsed since the judgment of the court in 

CLC v. FEC (Civ. No. 21-406), CLC filed a private action against Heritage Action alleging the 

FECA violations from MUR 7516. CLC v. Heritage Action, Civ. No. 22-1248 (Docket No. 1). 

On May 13, 2022, the three FEC Commissioners who had voted against finding reason to 

believe in MUR 7516 placed a controlling Statement of Reasons explaining their votes in the 

file. MUR 7516 Pub. Rec. (Statement of Reasons dated May 13, 2022). 

On June 2, 2022, pursuant to the FOIA request by Heritage Action, the Commission 

authorized the release to Heritage Action of the certifications of votes that had occurred in MUR 

7516 prior to the date of its FOIA request. CLC v. Heritage Action, Civ. No. 22-01248 (D.D.C.) 

(July 8, 2022) (Docket No. 20-6). On June 15, 2022, Heritage received a copy of the Statement 

of Reasons dated May 13, 2022. Id. (Docket No. 20-7). 

On June 7, 2022, FEC Commissioners voted to close the administrative file for MUR 

7516, and a notification was sent to Heritage Action on June 9, 2022. MUR 7516 Pub. Rec. 

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(Notification dated June 9, 2022). Two Commissioners who had voted to find reason to believe 

issued a Statement of Reasons explaining their votes on July 7, 2022. MUR 7516 Pub. Rec. 

(Statement of Reasons dated July 7, 2022). The case file was released to the public via the 

FEC’s website on July 13, 2022. See id. The file included both of the Statements of Reasons 

described above, as well as other documents customarily released to the public. Id. 

B. This Judicial-Review Action 

Plaintiff filed this suit principally asserting APA causes of action on May 20, 2022. 

(Compl.) Plaintiff claims that it has been harmed by lack of access to the vote certifications and 

statements of reasons in MUR 7156. (Compl. ¶¶ 3-10.) Alongside that relatively confined 

challenge, however, plaintiff makes the sweeping claim that it is only one victim of an alleged 

“policy” of the Commission to deliberately conceal the FEC Commissioners’ voting records and 

statements of reasons from the respective subjects in otherwise terminated enforcement 

proceedings in violation of the APA. (Compl. ¶¶ 1, 2.) Plaintiff alleges that this “concealment 

policy” has harmed a number of other respondents in other unidentified MURs, over an 

indeterminate period of time. (Compl. ¶¶ 3, 73-74.)2 

In support of this theory, Heritage Action contends that whenever a motion to find reason 

to believe that a respondent in an FEC enforcement MUR has violated FECA fails to garner the 

necessary four Commissioner votes for the matter to proceed, the matter is automatically 

Plaintiff claims that the alleged “concealment policy” has also affected seven other 

administrative “respondents[.]” (Compl. ¶ 3.) Plaintiff presumably draws this figure from a May 

13, 2022 Commissioner statement cited elsewhere in its complaint (Compl. ¶ 35), although that 

statement actually refers to a total of eight administrative matters or MURs, each of which can 

involve more than one respondent. Statement of Chairman Allen J. Dickerson 

and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III Regarding 

Concluded Enforcement Matters (May 13, 2022), https://www.fec.gov/resources/cmscontent/documents/Redacted_Statement_Regarding_Concluded_Matters_13_May_2022_Redact 

ed.pdf, at 1. 

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terminated. (Compl. ¶¶ 29-30.) Plaintiff claims that any subsequent failure to close the MUR 

file, and to disclose the voting records and statement of reasons, violates the Commission’s legal 

obligations. (See Compl. ¶¶ 36-38.) Plaintiff alleges that, because FECA allows complainants to 

sue the Commission if it “fail[s] . . . to act” on an administrative complaint and then to sue the 

respondent directly if the FEC still fails to act, 52 U.S.C. § 30109(a)(8)(A), (C), by failing to 

close the file the Commission “has left the public and courts with the false impression that it has 

not taken action” on the administrative complaint, “thus deliberately subjecting the Commission 

and Heritage Action to direct civil lawsuits on false pretenses.” (Compl. ¶ 7.) Heritage Action 

notes that it is a defendant in such a private right of action stemming from MUR 7516. 

These claims form the basis of plaintiff’s five-count complaint. Counts I through IV all 

allege violations of the APA, while Count V seeks mandamus relief. 

Count I alleges that defendants’ “concealment policy” led the Commission to unlawfully 

withhold information from Heritage Action regarding MUR 7516, and therefore to act 

“[c]ontrary to law,” in violation of 5 U.S.C. § 706(2)(A). (Compl. ¶¶ 79-88 (citing 5 U.S.C. § 

555(e); 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a)).) Plaintiff seeks to 

have the Court “hold unlawful and set aside Defendants’ concealment policy[.]” (Compl. ¶ 88.) 

Count II alleges that defendants “acted arbitrarily and capriciously by failing to comply 

with the FEC’s regulations[,]” in violation of 5 U.S.C. § 706(2)(A), in failing to notify plaintiff 

of the Commission’s alleged terminating action regarding MUR 7516 and failing to provide 

plaintiff with voting records. (Compl. ¶¶ 89-94 (citing 11 C.F.R. §§ 111.9(b), 111.20(a)).) 

Count III alleges that defendants acted arbitrarily and capriciously, and in violation of 5 

U.S.C. § 706(2)(A), because they “departed from [their] longstanding policy and practice by 

adopting a new concealment policy” by “treating MUR 7516 differently than similarly situated 

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enforcement matters in which Defendants administratively closed the file upon split votes failing 

to find reason to believe a violation occurred[.]” (Compl. ¶¶ 95-100.) On this basis, plaintiff 

again seeks to have this Court “hold unlawful and set aside Defendants’ concealment policy[.]” 

(Compl. ¶ 100.) 

Count IV alleges that defendants have “unlawfully withheld or unreasonably delayed” 

notice of the Commission’s alleged terminating action in MUR 7516 and release of its voting 

records and any statement of reasons, in violation of 5 U.S.C. §§ 555(b), 555(e), and 706(1). 

(Compl. ¶¶ 101-109 (citing 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a)).) 

Finally, Count V seeks an order in mandamus (28 U.S.C. § 1361) compelling the 

Commission to “comply with the law” by notifying Heritage Action of the alleged termination of 

action in MUR 7516 and by releasing the voting records and any statements of reasons in that 

MUR. (Compl. ¶¶ 110-115.) 

In all Counts, plaintiff seeks an order that defendants terminate MUR 7516 and release 

the voting records and statements of reasons to plaintiff. (Compl. ¶¶ 88, 94, 100, 109, 115.) 

Plaintiff’s Prayer for Relief requests sweeping judicial intervention. It seeks not only “[a]n order 

compelling Defendants to issue the required notification to Heritage Action of the Commission’s 

terminating action in MUR 7516 and publicly release the voting records and any statement of 

reasons,” but also an “injunction requiring Defendants to issue the required notifications to 

complainants and respondents and to publicly release Commission’s [sic] voting records and 

statements of reasons in any enforcement matter after the Commission fails to garner four votes 

to initiate an enforcement action based on the complaint.” (Id., Prayer for Relief, paragraphs b, 

c, d.) Plaintiff states that it is “not presently” seeking an injunction, but it seeks declaratory relief 

and an order to the same effect. (Motion at 38- 39 & n.5.) 

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ARGUMENT 

Plaintiff fails to meet its burden to justify summary judgment. Its claims are precluded 

because FECA is the exclusive avenue for judicial review of the FEC’s handling of 

administrative enforcement proceedings. Plaintiff’s claims are also moot, because it has the 

information it seeks with respect to MUR 7516, and it has no standing to challenge an alleged 

“concealment policy” on behalf of respondents in MURs with which it has no connection. 

Plaintiff’s vague and conclusory allegations also fail to state a claim under the APA, which 

requires that plaintiffs challenge a final, discrete agency action. Even if reviewable, plaintiff’s 

claims are meritless. The Commission’s longstanding approach to the termination of 

enforcement matters is consistent with FECA and FEC regulations, and the agency is entitled to 

substantial deference in the conduct of investigations. Thus, plaintiff has failed to show any 

agency action that is contrary to law. Nor has plaintiff shown unlawful delay, particularly in 

light of its glaring lack of specific evidence, which is fatal to its claims at summary judgment. 

And the sweeping relief plaintiff demands would constitute an unprecedented judicial 

intervention into the agency’s enforcement proceedings. Plaintiff’s claims must fail. 

I. STANDARD OF REVIEW 

A. Standard of Review on a Motion for Summary Judgment 

Under the Federal Rules, “[t]he court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of 

showing, by reference to the record, that there are no genuine issues of material fact to be 

determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The 

court must view the record in the light most favorable to the party opposing the motion, giving 

the non-movant the benefit of all favorable inferences that can reasonably be drawn from the 

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record and the benefit of any doubt as to the existence of any genuine issue of material 

fact. Def’s. of Wildlife v. Dep’t of Agric., 311 F. Supp. 2d 44, 53 (D.D.C. 2004) (citing Adickes 

v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970)). 

At the summary judgment phase, a plaintiff must demonstrate with admissible evidence 

that it has established the elements of standing. See Lujan v. Def’s. of Wildlife, 504 U.S. 555, 

561 (1992). While “[a]t the pleading stage, general factual allegations of injury resulting from 

the defendant's conduct may suffice, . . . [i]n response to a summary judgment motion, . . . the 

plaintiff can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other 

evidence ‘specific facts[.]’” Id. (quoting Fed. R. Civ. P. 56(e); Gladstone Realtors v. Vill. of 

Bellwood, 441 U.S. 91, 115 n. 31 (1979)); see Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 

2002) (plaintiff at summary judgment stage must support each element of standing by affidavit 

or other evidence); Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951, 952 (D.C. 

Cir. 1998) (“evidence there must be” to establish the elements of standing at the summary 

judgment stage); Humane Soc’y of the U.S. v. Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) 

(quoting Lujan, 504 U.S. 561) (The plaintiffs “must prove injury in fact with ‘specific facts’ in 

the record.”). 

Plaintiff has moved for summary judgment as to each of its claims, and it accordingly 

rests on the evidence that has so far been introduced to the record in this matter. That record 

consists primarily of the documents the Commission has made available on its website with 

regards to MUR 7516. FEC, MUR #7516: Summary, https://www.fec.gov/data/legal/matterunder-review/7516/ (last visited Aug. 25, 2022). There is no record evidence regarding the 

seven additional, unidentified MUR proceedings plaintiff challenges, except for some general 

discussion of these documents in FEC Commissioner statements. (MSJ, Exhs. A, G.) 

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B. Standard of Review on APA Claims 

Plaintiff alleges that the FEC’s lack of dismissal of enforcement matters following a 

single divided (3-3) vote regarding whether to find reason-to-believe a violation occurred was 

“contrary to law” (Count I), “arbitrary and capricious agency action” (Counts II, III), and action 

“unlawfully withheld or unreasonably delayed” (Count IV). See supra, Background Part II.B. 

Assuming APA causes were properly presented, the arbitrary and capricious standard of 

review as set forth in the APA is “highly deferential” and “presume[s] the validity of agency 

action.” Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). “[T]he party 

challenging an agency’s action as arbitrary and capricious bears the burden of proof.” San Luis 

Obispo Mothers for Peace v. NRC, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). As the D.C. 

Circuit has explained, the standard for determining whether a Commission determination “was 

arbitrary or capricious or otherwise an abuse of discretion” is “extremely deferential” and 

“requires affirmance if a rational basis for the agency’s decision is shown.” Orloski v. FEC, 795 

F.2d 156, 167 (D.C. Cir. 1986); Van Hollen v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (“State 

Farm entails a very deferential scope of review that forbids a court from substitut[ing] its 

judgment for that of the agency.”) (internal quotation marks omitted)). To meet that standard, 

plaintiffs must show that “the agency . . . entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to the evidence before the 

agency, or is so implausible that it could not be ascribed to a difference in view or the product of 

agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29, 43 (1983). 

In the context of a failure to act allegation under 52 U.S.C. § 30109(a)(8), the Court of 

Appeals has explained that “in using the language ‘contrary to law,’ Congress appears to have 

intended that the unreasonableness of the Commission’s delay in completing its task be tested 

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under standards generally applicable to review of agency inaction.” In re Nat. Cong. Club, Civ. 

No. 84-5701, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984). To make these determinations 

in section 30109(a)(8) cases, the Court of Appeals has instructed district courts to consider the 

four factors used in Common Cause — “‘[1] the credibility of the allegation, [2] the nature of the 

threat posed, [3] the resources available to the agency, and [4] the information available to it, as 

well as the novelty of the issues involved,’” id. (quoting Common Cause v. FEC, 489 F. Supp. 

738, 744 (D.D.C. 1980)) — as well as the six factors discussed in Telecommunications Research 

& Action Center v. Federal Communications Commission: 

(1) the time agencies take to make decisions must be governed by a rule of 

reason; (2) where Congress has provided a timetable or other indication of the 

speed with which it expects the agency to proceed in the enabling statute, that 

statutory scheme may supply content for this rule of reason; (3) delays that might 

be reasonable in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the effect of 

expediting delayed action on agency activities of a higher or competing priority; 

(5) the court should also take into account the nature and extent of the interests 

prejudiced by delay; and (6) the court need not find any impropriety lurking 

behind agency lassitude in order to hold that agency action is unreasonably 

delayed. 

750 F.2d 70, 80 (D.C. Cir. 1984) (citations and internal quotation marks omitted) (“TRAC”). 

C. Agency Deference 

Courts are required to analyze an agency’s interpretation of a statute by following the 

two-step procedure set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984). First, the court must determine “whether Congress has directly spoken to 

the precise question at issue.” Id. at 842. “If the intent of Congress is clear, that is the end of the 

matter; for the court, as well as the agency, must give effect to the unambiguously expressed 

intent of Congress.” Id. at 842–43. If the court concludes that the statute is either silent or 

ambiguous, the second step of the court’s review process is to determine whether the 

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interpretation proffered by the agency is “based on a permissible construction of the statute.” Id. 

at 843. 

Once a reviewing court reaches the second step, it must accord “considerable weight” to 

an agency’s construction of a statutory scheme it has been “entrusted to administer[.]” Id. at 

844. “[U]nder Chevron, courts are bound to uphold an agency interpretation as long as it is 

reasonable—regardless whether there may be other reasonable or, even more reasonable, views.” 

Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998). And the court must defer to 

an agency’s reading of its own regulations unless it is “plainly erroneous or inconsistent with the 

regulation.” Id. at 1320 (internal quotation marks omitted). 

Under this standard, the courts have regularly deferred to the FEC’s interpretation of 

FECA and its implementing regulations. See FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27, 39 (1981) (“DSCC”) (“To satisfy [the contrary-to-law] standard it is not necessary 

for [the Court] to find that the agency’s construction was the only reasonable one or even the 

reading the [C]ourt would have reached” on its own “if the question initially had arisen in a 

judicial proceeding.”); Doe 1 v. FEC, 302 F. Supp. 3d 160 (D.D.C. 2018), aff’d and remanded, 

920 F.3d 866 (D.C. Cir. 2019) (interpreting 52 U.S.C. §§ 30109(a)(4)(A)(ii), 30109(a)(4)(B)(ii); 

11 C.F.R. § 111.20(a)-(b)). The D.C. Circuit applied the contrary-to-law standard applicable to 

reviews of an agency dismissal decision in Orloski by engaging in “the familiar two-step 

framework outlined in Chevron.” Citizens for Resp. & Ethics in Wash. v. FEC, 209 F. Supp. 3d 

77, 86 (D.D.C. 2016) (CREW I) (citing Orloski, 795 F.2d at 161-62). In In re Sealed Case, the 

D.C. Circuit reiterated the propriety of Chevron deference after a “thorough consideration” of 

FECA’s “‘detailed statutory framework for civil enforcement . . . analogous to a formal 

adjudication.’” Id. at 85 & n.5 (quoting In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000)). 

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The deference that is accorded to the Commissioners’ implementation choices is rooted 

in Congress’s design of the agency to take action with care and without the appearance of 

partisan politics. The FEC can “initiate investigations, . . . and take other steps of comparable 

importance only upon the affirmative vote of four . . . members. The four-vote requirement 

serves to assure that enforcement actions, as to which the Congress has no continuing voice, will 

be the product of a mature and considered judgment.” H.R. 12406, H. Rep. No. 94-917, 94th 

Cong., 2d Sess. at 3 (1976). The Court of Appeals has repeatedly emphasized this important 

element of the FEC’s decision-making. E.g., Combat Veterans for Cong. Pol. Action Comm. v. 

FEC, 795 F.3d 151, 153 (D.C. Cir. 2015) (quoting legislative history); Pub. Citizen, Inc. v. Fed. 

Energy Regul. Comm’n, 839 F.3d 1165, 1171 (D.C. Cir. 2016) (“The [FEC’s] voting and 

membership requirements mean that, unlike other agencies — where deadlocks are rather 

atypical — FEC will regularly deadlock as part of its modus operandi.”). 

Deference is particularly warranted with respect to the Commission’s conduct of its 

administrative enforcement proceedings. Such “implementation choices, which call on the 

FEC’s special regulatory expertise, were the types of judgments that Congress committed to the 

sound discretion of the agency.” CREW I, 209 F. Supp. 3d at 87. Indeed, the Supreme Court has 

described the FEC as “precisely the type of agency to which deference should presumptively be 

afforded,” since it is vested with “primary and substantial responsibility for administering and 

enforcing [FECA],” including the “sole discretionary power” to initiate enforcement actions. Id. 

(quoting DSCC, 454 U.S. at 37; Buckley, 424 U.S. at 109, 111 n. 153). Thus, “in determining 

whether the Commission’s action [in dismissing a case] was ‘contrary to law,’ the task for the 

[Court is] not to interpret the statute as it [thinks] best but rather the narrower inquiry into 

whether the Commission’s construction [is] ‘sufficiently reasonable’ to be accepted by a 

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reviewing court.” DSCC, 454 U.S. at 39 (citations omitted). Unless “Congress has directly 

spoken to the precise question at issue,” the Court must defer to a reasonable construction by the 

Commission. Chevron, 467 U.S. at 842-844. 

This case, moreover, involves construction of the Commission’s own regulations in 

addition to the statute itself, and “[w]hen the construction of an administrative regulation rather 

than a statute is in issue, deference is even more clearly in order.” Udall v. Tallman, 380 U.S. 1, 

16 (1965). “Courts defer to an agency’s interpretation of its own regulation if the regulation in 

question is ‘genuinely ambiguous’ and if the agency’s reading is reasonable.” Doe v. Sec. & 

Exch. Comm’n, 28 F.4th 1306, 1311 (D.C. Cir. 2022) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 

2415–16 (2019)); see Select Specialty Hosp.-Bloomington, Inc. v. Sebelius, 774 F. Supp. 2d 332, 

341 (D.D.C. 2011) (quoting Wy. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 52 (D.C. 

Cir. 1999) (“So long as an agency’s interpretation of ambiguous regulatory language is 

reasonable, it should be given effect.”). This deference is based, in part, on the court’s 

observation that “the agency that promulgated a rule is in the ‘better position [to] reconstruct’ its 

original meaning.” Kisor, 139 S. Ct. at 2412 (quoting Martin v. Occupational Safety & Health 

Rev. Comm’n, 499 U.S. 144, 151 (1991)). It also reflects “the awareness that resolving genuine 

regulatory ambiguities often ‘entail[s] the exercise of judgment grounded in policy concerns.’” 

Id. at 2413 (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). 

The agency’s interpretation is entitled to deference where it is the agency’s 

“authoritative” or “official position,” “implicate[s] its substantive expertise” and reflects “fair 

and considered judgment[.]” Id. at 2416–18 (citations omitted); Nat’l Lifeline Ass'n v. Fed. 

Commc’ns Comm’n, 983 F.3d 498, 507 (D.C. Cir. 2020). The court applies these “three guiding 

principles” to assess the extent to which deference is warranted. Doe, 28 F.4th at 1313. Where 

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these principles weigh in favor of the agency’s regulation, the agency’s interpretation will 

prevail. See id. at 1314-17 (Securities and Exchange Commission’s interpretation of its own rule 

regarding whistleblower monetary awards was entitled to deference). 

In sum, even assuming the regulations plaintiff relies upon are ambiguous, plaintiff’s 

interpretation cannot prevail unless it can rebut “the presumption ... that the power 

authoritatively to interpret its own regulations is a component of the agency’s delegated 

lawmaking powers.” Kisor, 139 S. Ct. at 2412 (quoting Martin, 499 U.S. at 151). 

II. PLAINTIFF’S FAILURE TO FILE THE REQUIRED STATEMENT OF FACTS 

IS AN INDEPENDENT BASIS TO DENY IT SUMMARY JUDGMENT 

Plaintiff’s lack of factual support for its Motion for Summary Judgment, as noted supra, 

p. 11, is underlined by its failure even to file a statement of undisputed material facts. Such a 

statement is required by Local Civil Rule 7(h). That requirement does not apply to cases where 

judicial review is based solely on an administrative record, see LCvR 7(h)(2), but as plaintiff 

notes, this is not such a case. (MSJ at 28 n.3.) “Rule 7(h) provides for the efficient filtering of 

information essential” to its resolution of a summary judgment motion. Robinson v. District of 

Columbia, 130 F. Supp. 3d 180, 187 (D.D.C. 2015) (quoting Jackson v. Finnegan, Henderson, 

Farabow, Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir. 1996)). This failure to file the 

required statement of facts is an independent basis for this Court to deny plaintiff’s summary 

judgment motion. See Robinson, 130 F. Supp. 3d at 187 (holding that “because plaintiff failed to 

file a statement of material facts along with her [summary judgment motion], the Court will deny 

that Motion in full as a sanction for non-compliance”). 

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III. PLAINTIFF’S CLAIMS ARE PRECLUDED BECAUSE FECA’S JUDICIAL 

REVIEW PROVISION IS THE EXCLUSIVE PROCEDURE TO CHALLENGE 

THE FEC’S HANDLING OF ENFORCEMENT PROCEEDINGS 

Plaintiff cannot bring APA or mandamus claims to challenge the Commission’s handling 

of administrative enforcement complaints. As detailed extensively in the Commission’s Motion 

to Dismiss (Docket No. 17 at 25-31) and the FEC’s Reply in Support of its Motion to Dismiss 

(“Reply”) (Docket No. 23 at 20-25), Congress sets the bounds of the federal courts’ jurisdiction, 

and it may preclude judicial review by establishing an alternative statutory scheme. See Am. 

Fed’n of Gov’t Emps. v. Trump, 929 F.3d 748, 754 (D.C. Cir. 2019) (quoting Bowles v. Russell, 

551 U.S. 205, 212 (2007)). At the same time, judicial review of agency action under the APA is 

available only where “made reviewable by statute” and where there is “no other adequate 

remedy” for final agency action. 5 U.S.C. § 704. 

To determine the proper basis for judicial review, courts examine the relevant statute’s 

language, structure, and legislative history. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 

(1984) (explaining that a “detailed mechanism for judicial consideration of particular issues at 

the behest of particular persons” may demonstrate that other forms of judicial review are 

“impliedly precluded”). In section 30109(a)(8), Congress delineated the scope of judicial review 

available in an action challenging alleged FEC impropriety in handling an administrative 

complaint. Congress explicitly provided that only FEC administrative complainants may seek 

judicial review and that they may do so only in two narrow circumstances: when a complainant 

is “aggrieved by an order of the Commission dismissing a complaint . . . or by a failure of the 

Commission to act on such complaint during the 120-day period beginning on the date the 

complaint is filed.” 52 U.S.C. § 30109(a)(8)(A). 

The federal courts have unanimously concluded that the judicial review provisions of 

FECA provide the exclusive mechanism for review of allegations that the Commission 

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unlawfully dismissed or failed to act on a complaint. (MTD at 28-29; Reply at 23-24.) FECA’s 

overall structure and legislative history further confirm Congress’s intent to limit the scope of 

judicial review of matters within the FEC’s area of responsibility. (MTD at 26, 29.) Judicial 

determinations that FECA precludes review of APA claims as to the handling of administrative 

enforcement complaints extend not just to claims by administrative complainants, but also to 

claims by administrative respondents such as plaintiff. (Reply at 22-24 (citing Stockman v. FEC, 

138 F.3d 144, 146 (5th Cir. 1998); Fieger v. Gonzales, Civ. No. 07-10533, 2007 WL 2351006, at 

*8 (E.D. Mich. Aug. 15, 2007), aff’d sub nom. Fieger v. U.S. Atty. Gen., 542 F.3d 1111 (6th Cir. 

2008); Beam v. Gonzales, 548 F. Supp. 2d 596, 610-12 (N.D. Ill. 2008)).) 

Because FECA contains this explicit and detailed review provision, there is clearly an 

“adequate remedy” as described in the APA, 5 U.S.C. § 704. FECA’s “detailed mechanism for 

judicial consideration of particular issues at the behest of particular persons” precludes other 

forms of judicial review, including review under the APA. Block, 467 U.S. at 349; see MTD at 

26-27; Reply at 23. See also Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). 

Plaintiff’s complaint challenges the Commission’s handling of MUR 7516 and 

unidentified other MURs, specifically alleging that the agency failed to dismiss the matters 

following a vote to find reason to believe a violation occurred did not succeed, and then failed to 

provide plaintiff with related voting records. (See Compl. ¶¶ 10, 11.) However, no separate 

APA or mandamus claim exists to pursue those challenges because FECA provides an adequate 

and exclusive judicial review mechanism. 52 U.S.C. § 30109(a)(8) permits only claims by 

administrative complainants. Heritage Action is indisputably an administrative respondent with 

respect to MUR 7516, and it does not allege that is has any role at all in the other MURs. 

(Compl. ¶ 15.) Congress therefore intended to bar its claims from judicial review. See Fieger, 

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2007 WL 2351006, at *10 (“[T]he Court must assume Congress intended to deny anyone other 

than an administrative complainant (including administrative respondents, such as Plaintiffs) the 

right to petition for judicial review.”) (citing Block, 467 U.S. at 349). 

In sum, section 30109(a)(8) provides the exclusive mechanism for challenging the 

Commission’s handling of administrative complaints and limits the scope of relief available to 

plaintiff. Allowing APA and mandamus review of plaintiff’s claims here would undo the careful 

limitations Congress established with FECA. As plaintiff’s Complaint relies entirely on the APA 

and the mandamus statutes, summary judgment should not be awarded to plaintiff. 

IV. PLAINTIFF’S MUR 7516 ALLEGATIONS ARE MOOT 

Plaintiff’s Complaint alleges that the FEC failed to provide Heritage Action with the 

voting records and any statement of reasons regarding MUR 7516, in which plaintiff was the 

respondent. (Compl. ¶¶ 79-115.) However, the FEC has shown that the sole source of 

Heritage’s alleged injury, the lack of information regarding MUR 7516, has been cured and there 

is no injury for the Court to redress. (MTD at 5-7; Reply at 2-9.) Plaintiff received all this 

information by June 15, 2022, via its Freedom of Information (“FOIA”) request, and the FEC 

made the case file publicly available pursuant to its disclosure policy on July 13, 2022. (Id.) As 

a result, plaintiff is in possession of all the relief it sought with respect to MUR 7516. The 

information is “publicly available online” and “does not appear to be in dispute.” Citizens for 

Resp. & Ethics in Wash. v. FEC, 799 F. Supp. 2d 78, 88 (D.D.C. 2011). Because plaintiff does 

not “allege any specific factual information [it] lack[s] that is not already publicly available[,]” it 

cannot show an informational injury. Id. at 89. Plaintiff’s claims are moot, and this Court thus 

lacks jurisdiction to consider them. (MTD at 12-16.) 

Plaintiff does not dispute that it is currently in possession of all the information it sought 

with respect to MUR 7516, but instead it argues that it is suffering an ongoing “informational 

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injury” from the FEC’s alleged failure to disclose documents in other matters in which plaintiff 

is not a respondent. (MSJ at 14-16.) However, plaintiff makes no attempt to show that FECA or 

any other statute provides plaintiff with the legally required “concrete interest in the information 

sought[.]” Nader v. FEC, 725 F.3d 226, 229 (D.C. Cir. 2013); see Reply at 3-4. Plaintiff also 

provides no evidence that any future legal proceedings involving plaintiff are more than 

complete speculation. (Reply at 4-5.) And plaintiff has not shown that any relief this Court 

could offer will have an impact in the separate action brought against it by the Campaign Legal 

Center, which in any case plaintiff has defended robustly without such relief. (Reply at 5-6.) 

Plaintiff’s primary response to the Commission’s mootness showing is its unsupported 

speculation that the FEC has attempted to “gin up a mootness defense in response to the 

Complaint” (MSJ at 13), but the Commission showed that this argument is unavailing (Reply at 

6-7). 

In sum, plaintiff has all the relief it sought in its Complaint with respect to MUR 7516, 

rendering its claims moot and thus not proper for summary judgment in plaintiff’s favor. 

V. PLAINTIFF LACKS STANDING TO PURSUE ITS BROAD “CONCEALMENT 

POLICY” ALLEGATIONS ON BEHALF OF UNNAMED THIRD PARTIES 

Plaintiff’s effort to challenge the FEC’s failure to release certain vote certifications and 

statements of reasons with respect to seven unidentified other administrative proceedings does 

not rest on any legally cognizable injury that is redressable by this Court, and so plaintiff lacks 

standing to pursue that challenge. (See MTD at 17-19; Reply at 9-12.) To establish Article III 

standing a plaintiff must demonstrate that: “(1) it has suffered an ‘injury in fact’ that is (a) 

concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the 

injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed 

to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the 

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Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-181 (2000) (citing Lujan v. Def’s. of 

Wildlife, 504 U.S. 555, 560-61 (1992)). Accordingly, the federal courts generally prohibit a 

party from raising the rights or interests of third persons in challenging allegedly illegal 

governmental action. See Warth v. Seldin, 422 U.S. 490, 499-500 (1975); Rumber v. District of 

Columbia, 595 F.3d 1298, 1301 (D.C. Cir. 2010) (per curiam); Bennett v. Spear, 520 U.S. 154, 

162 (1997); see also MTD at 17-19. 

Here plaintiff makes a sweeping challenge to an alleged FEC “policy,” seeking an order 

that would end the Commission’s longstanding practice of holding votes to close the 

administrative file in all its proceedings. (MSJ at 38-40.) Plaintiff’s Response to the 

Commission’s Motion to Dismiss made the apparent concession that it “is not attempting to sue 

on behalf of third parties,” but instead “seeking the information in the other MURs to redress its 

own informational injuries.”3 (MSJ at 16 n. 1.) However, plaintiff continues to challenge the 

Commission’s alleged “concealment policy” with respect to seven administrative proceedings 

other than MUR 7516, in which it concedes it has “no direct stake[.]” (MSJ at 16.) This 

contravenes the principle that “the decision to seek review must be placed ‘in the hands of those 

who have a direct stake in the outcome,’ . . . not . . . in the hands of concerned bystanders, who 

will use it simply as a vehicle for the vindication of value interests.” Am. Legal Found. v. Fed. 

Commc’ns Comm’n, 808 F.2d 84, 91 (D.C. Cir. 1987) (quoting Diamond v. Charles, 476 U.S. 

54, 62 (1986) (other citation omitted)). 

The fact that plaintiff is not a party to the seven administrative proceedings it challenges 

is alone sufficient to dismiss its claims for lack of standing. Jud. Watch, Inc. v. FEC, 293 F. 

Supp. 2d 41, 48 (D.D.C. 2003) (counsel to contributor “is precluded from bringing suit here 

Despite this concession, plaintiff has not amended the relief sought in its Complaint. 

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because it was not a party to the underlying administrative complaint”). In addition, plaintiff has 

no legally cognizable interest in these proceedings, and courts have found that parties with a 

significantly more direct interest in the outcome of an enforcement proceeding nonetheless did 

not have standing to challenge the Commission’s handling of an administrative complaint. 

(Reply at 10-12.) Plaintiff’s claims also stand in stark contrast to situations in which courts have 

found informational injury. See, e.g., Campaign Legal Ctr. v. FEC, 31 F.4th 781, 783 (D.C. Cir. 

2022); (see also Reply at 12.) 

VI. PLAINTIFF’S APA CLAIMS FAIL AS A MATTER OF LAW, AND EVEN IF 

THE CLAIMS WERE REVIEWABLE, PLAINTIFF HAS FAILED TO OFFER 

EVIDENCE SUFFICIENT TO JUSTIFY SUMMARY JUDGMENT 

At the summary judgment stage, plaintiff may not rest on its pleadings, and must, at a 

minimum, point to admissible evidence in support of each element of its claims. See Lujan, 504 

U.S. at 561. Barebones assertions do not state a valid claim for relief under the APA and are 

insufficient at this stage of proceedings. See, e.g., United States v. Collins, Civ. No. 14-80409, 

2015 WL 12556167, at *2 (S.D. Fla. Apr. 3, 2015) (denying defendant’s motion for summary 

judgment “[b]ecause factually unsupported claims or defenses should be disposed of”); Jones v. 

Coty Inc., 362 F. Supp. 3d 1182, 1195 (S.D. Ala. 2018) (“On summary judgment review, a court 

cannot simply accept counsel’s ipse dixit for an unsupported factual statement in a brief.”). As 

explained below, plaintiff’s APA claims as to the alleged “concealment policy” and the handling 

of the unidentified other administrative proceedings plaintiff purports to challenge repeatedly fail 

to meet this threshold standard, and that alone requires that plaintiff’s motion be denied. 

A. The Commission’s Longstanding Approach to the Termination of Its 

Administrative Enforcement Proceedings Reflects a Permissible Interpretation of 

FECA and the Agency’s Regulations 

Plaintiff’s claims rely on a single, unsustainable premise: that the Commission must 

immediately terminate an administrative enforcement proceeding and publicly disclose the 

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relevant records following any failed reason-to-believe or probable-cause-to-believe vote. 

However, no such legal mandate exists, and the Commission’s long-standing practice of 

terminating matters only through successful votes to close the file is plainly permissible under 

FECA and the FEC’s implementing regulations. 

It is not enough that plaintiff’s proposed interpretation of such authorities be reasonable. 

See Serono Labs, 158 F.3d at 1321 (“[U]nder Chevron, courts are bound to uphold an agency 

interpretation as long as it is reasonable—regardless whether there may be other reasonable or, 

even more reasonable, views.”). The court must defer to an agency’s reading of any ambiguous 

regulations unless it is “plainly erroneous or inconsistent with the regulation.” Id. at 1320 

(internal quotation marks omitted). Indeed, “‘a claim under § 706(1) can proceed only where a 

plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.’” 

Orlov v. Howard, 523 F. Supp. 2d 30, 37 (D.D.C. 2007) (emphasis in original) (quoting Norton 

v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)). 

Here, the mandate that plaintiff would read into the text of FECA and the FEC’s 

regulations is simply absent from their text, providing this Court with no basis on which to 

compel agency action with respect to MUR 7516 or the other unidentified MURs plaintiff 

challenges. To the extent there is any ambiguity in the relevant provisions, the Commission is 

entitled to substantial deference as to its “implementing choices” which pertain to its “special 

regulatory expertise[.]” CREW I, 209 F. Supp. 3d at 87. Any ambiguity is further resolved in 

the Commission’s favor as the conduct of law enforcement proceedings is committed to the 

agency’s discretion by law absent a clear contrary statutory mandate. Citizens for Resp. & Ethics 

in Wash. v. FEC, 892 F.3d 434, 442 (D.C. Cir. 2018) (CREW II) (“[A]gency enforcement 

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decisions, to the extent they are committed to agency discretion, are not subject to judicial 

review for abuse of discretion.”). 

Plaintiff’s contention that the Commission must immediately terminate an 

administrative enforcement proceeding following a single failed reason-to-believe or probablecause-to-believe vote is based on a single subpart of FECA. That language reads as follows: 

If a conciliation agreement is agreed upon by the Commission and the respondent, 

the Commission shall make public any conciliation agreement signed by both the 

Commission and the respondent. If the Commission makes a determination that a 

person has not violated this Act or chapter 95 or chapter 96 of Title 26, the 

Commission shall make public such determination. 

52 U.S.C. § 30109(a)(4)(B)(ii). This language mandates that the Commission “make public” any 

“conciliation agreement” reached with a respondent, and any “determination” that a person has 

not violated the Act. But FECA does not define “determination.” The surrounding context 

suggests that the FEC makes a “determination” by an affirmative vote of at least four of its 

Commissioners. Id. § 30109(a)(4)(A)(i) (“[I]f the Commission determines, by an affirmative 

vote of 4 of its members, that there is probable cause to believe that any person has 

committed[.]”). 

A court in this district undertook an extensive analysis of the term “determination” that 

undermines plaintiff’s claim that it encompasses every unsuccessful FEC reason-to-believe vote. 

See Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001), aff’d 

on other grounds, 333 F.3d 168 (D.C. Cir. 2003). The court noted that, “although 

‘determination’ is not defined anywhere in FECA, it is ordinarily used to describe a final 

outcome or decision.” Id. at 58. It further observed that “[t]he term ‘determination’ has been 

defined as ‘[a] final decision by a court or administrative agency.’” Id. at n.14 (quoting Black's 

Law Dictionary 460 (7th ed. 1999)). The court held that, in the context at issue, “‘determination’ 

refers only to the probable cause determination” by the Commission, to the exclusion of the 

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“many discrete steps comprising the enforcement scheme of FECA” including a “reason to 

believe” vote. Id. at 59 n.16. 

The FECA provision establishing the four-vote requirement for finding reason to believe 

a violation has occurred, the step in the administrative process that can lead to an investigation, 

does not suggest that a matter is automatically dismissed whenever a reason-to-believe vote fails. 

See 52 U.S.C. § 30109(a)(2). On the contrary, FECA specifically references a “vote to dismiss” 

an administrative complaint in the context of expedited action on a complaint, in section 

30109(a)(1). In addition, FEC regulations specifically describe the “vote[] to close [the] 

enforcement file.” See 11 C.F.R. § 5.4(a)(4). 

In the event that a statute detailing an agency’s duties and responsibilities is ambiguous, 

as it is here, courts will defer to an agency’s interpretation of its implementing statute as long as 

it is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. The court 

must accord “considerable weight” to an executive agency's construction of a statutory scheme it 

has been “entrusted to administer.” Id. at 844; see Serono Labs., 158 F.3d at 1321 (“[C]ourts are 

bound to uphold an agency interpretation as long as it is reasonable—regardless whether there 

may be other reasonable or, even more reasonable, views.”). Plaintiff’s reading of 52 U.S.C. § 

30109(a)(4)(B)(ii) provides no reason to depart from the Commission’s longstanding approach, 

and plaintiff cites no other legal authority suggesting that the required “disclosure” must follow 

immediately from a single failed reason-to-believe vote. Without more, plaintiff has failed to 

overcome the deference the Commission is owed in its interpretation of its implementing statute. 

That interpretation has been consistent and long-standing. For decades the Commission 

has fulfilled its obligations under FECA by disclosing a “determination” in any administrative 

proceeding only after a successful vote to close the administrative file. Because a “deadlocked” 

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vote that fails to reach a four Commissioner majority is not a “determination” under FECA, this 

procedure allows the Commissioners to further consider a matter after a single inconclusive vote. 

In fact, the Commission has often held one reason-to-believe or probable-cause-to-believe vote 

that does not pass, only to determine in a later vote that there was in fact reason to believe or 

probable cause to believe on the same claim. See, e.g., FEC MURs 7350, 7351, 7357, and 7382 

(Cambridge Analytica LLC, et al.);4 MUR 6623 (Scalise for Congress, et al.);5 MUR 5754 

(MoveOn PAC, et al.).6 This procedure has the added virtue of ensuring that, when a matter is 

closed and a record provided to the public, this decision will have the endorsement of a majority 

of the Commissioners and hence will be consistent with section 30109(a)(4)(B)(ii)’s use of the 

term “determination,” to the extent that applies. This latter consideration is crucial, as the extent 

of disclosures following the termination of FEC proceedings has been subject to dispute. See, 

e.g., Doe 1, 302 F. Supp. 3d 160. 

4 Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) (Apr. 

12, 2019) (failing, 2-0, to find reason to believe on a series of claims), 

https://www.fec.gov/files/legal/murs/7350/7350_27.pdf. See Certification, MURs 7350, 7351, 

7357 & 7382 (Cambridge Analytica LLC, et al.) (July 30, 2019) (voting 4-0 to find reason to 

believe on several of the same claims), https://www.fec.gov/files/legal/murs/7350/7350_29.pdf; 

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) (Aug. 22, 

2019) (same), https://www.fec.gov/files/legal/murs/7350/7350_37.pdf. 

5 Amended Certification, MUR 6623 (Scalise for Congress, et al.) (July 31, 2012) (voting 

3-3 on whether there was reason to believe one respondent violated FECA and then later voting 

5-1 to find reason to believe regarding that respondent), 

https://eqs.fec.gov/eqsdocsMUR/13044330654.pdf. 

6 Certification, MUR 5754 (MoveOn PAC, et al.) (Sept. 14, 2004) (voting 3-2 on whether 

there was reason to believe), https://www.fec.gov/files/legal/murs/5754/0000590C.pdf; 

Certification, MUR 5754 (MoveOn PAC, et al.) (Sept. 28, 2004) (voting 5-1 to find reason to 

believe), https://www.fec.gov/files/legal/murs/5754/0000590D.pdf. 

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In the many years the Commission has practiced its policy of disclosure following a 

successful vote to close the file, the practice has been largely uncontroversial. In fact, courts 

have repeatedly referenced the Commission’s practice of dismissing matters through the 

inclusion of an explicit vote to close the file. See Citizens for Resp. & Ethics in Wash. v. FEC, 

971 F.3d 340, 346 (D.C. Cir. 2020); Doe, 1 v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019); 

CREW II, 892 F.3d at 441 n.13; Citizens for Resp. & Ethics in Wash. v. FEC, 236 F. Supp. 3d 

378, 388 (D.C. Cir. 2017). The D.C. Circuit has also referenced the date the FEC closes the file 

(rather than the date of any previous vote at the reason-to-believe stage) as “the date of the 

dismissal” that triggers section 30109(a)(8)(B)’s 60-day deadline for a complainant to challenge 

the dismissal. CREW II, 892 F.3d at 436; Jordan v. FEC, 68 F.3d 518, 519 (D.C. Cir. 1995); 

Spannaus v. FEC, 990 F.2d 643, 644 (D.C. Cir. 1993); Citizens for Resp. & Ethics in Wash., 799 

F. Supp. 2d at 83. 

Plaintiff also relies on two FEC regulations, which it claims require the Commission to 

immediately terminate an enforcement proceeding following a single failed reason-to-believe or 

probable-cause-to-believe vote, but that reliance is misplaced. One regulation provides: 

If the Commission makes a finding of no reason to believe or no probable cause to 

believe or otherwise terminates its proceedings, it shall make public such action 

and the basis therefor no later than thirty (30) days from the date on which the 

required notifications are sent to complainant and respondent. 

11 C.F.R. § 111.20. The other states that, “[i]f the Commission finds no reason to believe, or 

otherwise terminates its proceedings, the General Counsel shall so advise both complainant and 

respondent by letter.” 11 C.F.R. § 111.9(b). Both of these regulations describe what happens 

after an agency “terminates” a matter, but they certainly do not mandate that matters be 

terminated every time a reason-to-believe vote does not succeed. 

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The terms “finds” and “finding” as used in these regulations are undefined by FECA, 

but context again strongly suggests that the term refers to a decision reached by an affirmative 

vote of at least four Commissioners, as the Commission may “find that a person committed such 

a violation . . . pursuant to the procedures described in paragraphs (1) and (2)[.]” 52 U.S.C. § 

30109(a)(4)(C)(i)(I). Those paragraphs describe “an affirmative vote of 4 of [the agency’s] 

members[.]” 52 U.S.C. § 30109(a)(2). Courts have explicitly held that in the absence of a four 

vote majority, “the Commission did not ‘make a finding of no reason to believe[.]’” Doe 1, 302 

F. Supp. 3d at 172 (citing 11 C.F.R.§ 111.20(a)). The Commission has also exercised its 

authority to “prepare written rules for the conduct of its activities,” 52 U.S.C. § 30106(e), for 

decades by requiring that motions exercising “a duty or power” under FECA have “four votes for 

approval.” FEC, Directive 10, (effective June 8, 1978, amended Dec. 20, 2007), 

https://www.fec.gov/resources/cms-content/documents/directive_10.pdf. This is consistent with 

FECA’s purposes of fostering nonpartisan consensus, and plaintiff makes no challenge to it. The 

FEC directive applies in full to any “finding of no reason to believe,” 11 C.F.R. § 111.20, or any 

motion to close the file, the customary point in matters involving at least one split vote that 

Commissioners agree that consensus will not be achieved. 

Plaintiff argues that “[b]ecause the use of the term ‘otherwise’ indicates that failing to 

find ‘reason to believe’ constitutes a ‘terminat[ion]’ of the matter, the FEC must disclose its 

voting records after ‘a finding of no reason to believe.’” (MSJ at 30 (alterations in original) 

(citing 11 C.F.R. § 111.20(a)).) But an unsuccessful vote to find reason to believe is not the 

same as a successful vote to find “no reason to believe,” which requires four votes. In fact, 

courts have interpreted this language to refer to instances in which a matter was “terminated” by 

an affirmative vote of a majority of the Commissioners. For instance, the court in Doe 1 v. FEC 

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found that a matter had been “otherwise terminated” because the Commission voted 

unanimously to approve a conciliation agreement with respondents. 302 F. Supp. 3d at 173. 

Plaintiff makes no claim that anything similar occurred in the seven unidentified proceedings it 

challenges. 

“Courts defer to an agency’s interpretation of its own regulation if the regulation in 

question is ‘genuinely ambiguous’ and if the agency’s reading is reasonable.” Doe, 28 F.4th at 

1311 (quoting Kisor, 139 S. Ct. at 2415–16). To the extent there is any ambiguity in the relevant 

regulations, it should be resolved in the Commission’s favor in accordance with the Supreme 

Court’s “guiding principles” articulated in Kisor. Doe, 28 F.4th at 1313. The Commission’s 

uninterrupted adherence to a policy of holding a vote to close the administrative file for decades 

is clearly the agency’s “official position.” Kisor, 139 S. Ct. at 2416. The Commission’s 

interpretation also “implicate[s] its substantive expertise[,]” id. at 2417, because the “subject 

matter in dispute here[,]” the consideration and dismissal of administrative complaints regarding 

violations of FECA, “is part and parcel of the [FEC’s] statutorily assigned duties.” Doe, 28 F.4th 

at 1315 (rule regarding whistleblower monetary awards implicated SEC’s substantive expertise). 

Finally, the Commission’s interpretation reflects its “fair and considered judgment[,]” Kisor, 139 

S. Ct. at 2417, as it has consistently applied the practice of holding votes to close the file for 

decades. The Commission’s interpretation is plainly “reasonable,” and thus should be given 

effect. See Wy. Outdoor Council, 165 F.3d at 52 (“So long as an agency’s interpretation of 

ambiguous regulatory language is reasonable, it should be given effect.”). 

Plaintiff has provided no reason why the Commission’s interpretation of 11 C.F.R. §§ 

111.9(b), 111.20(a) is unreasonable. Plaintiff cites no case or other proceeding in which they are 

interpreted in accordance with plaintiff’s reading. This is clearly insufficient to overcome the 

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deference owed to the FEC in its interpretation of its own regulations. See Wyoming Outdoor 

Council, 165 F.3d at 52 (according “substantial deference” to agency’s interpretation of its own 

regulations). 

In sum, the Commission’s approach to the termination of its matters is permissible. 

B. Plaintiff’s APA Claims Fail Because the FEC’s Determination as to When to 

Terminate Enforcement Proceedings Is Committed to the Agency’s Discretion 

The APA, by its explicit terms, does not provide for judicial review “to the extent that . . . 

agency action is committed to the agency discretion by law.” 5 U.S.C. § 701(a)(2). As a result, 

“agency enforcement decisions, to the extent they are committed to agency discretion, are not 

subject to judicial review for abuse of discretion.” CREW II, 892 F.3d at 442. Accordingly, 

under § 701(a)(2), “certain categories of administrative decisions are unreviewable,” among 

them “agency decisions not to institute enforcement proceedings.” Id. at 439 (quoting Secretary 

of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006)). In addition, “§ 701(a)(2) 

bars judicial review when there is no ‘law’ to apply in judging how and when an agency should 

exercise its discretion[.]” Id. at 440 (citing Heckler v. Chaney, 470 U.S. 821, 830 (1985)). 

In its prior briefing (MTD at 29-31; Reply at 12-17), the Commission detailed why 

plaintiff’s APA claims challenge FEC actions that are committed to its discretion by law, and 

they therefore fail to state a claim for relief. In effect, plaintiff seeks a declaratory judgment and 

order that would prohibit the Commission’s longstanding practice of holding votes to close the 

administrative file in its enforcement matters. (Reply at 13-14.) Such relief would deprive 

Commissioners of the discretion afforded the agency under FECA, which does not specify when 

or how a proceeding must terminate in the absence of a majority vote of the Commissioners to 

do so, leaving it to the Commission to establish these procedures. See supra, Part VI.A. It 

would also conflict with the well-established principle that the decisions to initiate, conduct and 

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terminate law enforcement proceedings are presumptively in the hands of the government and 

not the courts. (Reply at 14;) see CREW II, 892 F.3d at 439, 442. This principle as to agency 

discretion has resulted in the dismissal of APA claims made against the FEC by an 

administrative respondent. See Beam, 548 F. Supp. 2d at 612 (finding that “there is no discrete, 

non-discretionary action to compel in this case”). 

Plaintiff itself acknowledges that “[b]y longstanding policy and practice, the Commission 

has traditionally held an administrative vote to close the enforcement file.” (Compl. ¶ 27.) And as 

noted supra, pp. 27-28, the Commission identified seven MURs, considered between 2004 and 

2019, in which the Commission held a reason-to-believe or probable-cause-to-believe vote that 

did not pass, only to determine in a later vote that there was in fact reason to believe or probable 

cause to believe on the same claim. These examples illustrate that an unsuccessful vote on 

whether to find reason to believe has not customarily been understood to terminate an FEC 

enforcement matter, and Commissioners remain free to reconsider their earlier votes and change 

their minds. 

Plaintiff’s contention that the agency is required to terminate administrative proceedings 

following a single deadlocked vote relies entirely (MSJ at 6, 9, 10, 14, 16 n. 1, 20, 22-24, 29, 32, 

37) on a recent statement by three FEC Commissioners arguing that certain unidentified MURs 

should be considered closed, but that reliance is unavailing. It takes four votes to adopt an FEC 

policy. 52 U.S.C. §§ 30106(c), 30107(a)(8). It has traditionally taken four votes to end an FEC 

enforcement matter, and other FEC commissioners have disagreed with the statement on which 

plaintiff relies. See, e.g., Statement of Commissioner Ellen L. Weintraub On the Opportunities 

Before the D.C. Circuit in the New Models Case To Re-Examine En Banc Its Precedents 

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Regarding “Deadlock Deference” at 2-3, 9-16 (Mar. 2, 2022)7 (“Weintraub Statement”) 

(contending that further Commission action remains possible in matters until there are successful 

motions to close the file).8 

Plaintiff’s claims fail for the additional reason that there is no “law” to apply in judging 

how the agency should exercise its discretion. CREW II, 892 F.3d at 440. As noted supra, Part 

VI.A, FECA is silent regarding when and how a matter is terminated in the absence of four 

Commissioner votes for dismissal. In the absence of explicit standards, there is no clear 

guidance for the courts, and uncertainties abound. For instance, it would not be clear if a 3-3 

vote would be required, or if some lower number of votes could be sufficient to dismiss a matter. 

The APA prohibits judgments against agencies in the absence of such standards precisely 

because the agencies themselves are better equipped to navigate these issues. Where a statute is 

silent, it is presumptively for the agency to fill in the gaps. See Stockman, 138 F.3d at 152 

(noting that FECA “does not create a deadline in which the FEC must act or create a private 

cause of action to enforce this provision.”); Fieger, 2007 WL 2351006, at *9 (“The Court finds 

7 https://www.fec.gov/resources/cms-content/documents/2022-03-02-ELW-New-ModelsEn_Banc.pdf 

8 An exchange from decades ago demonstrates a previous understanding that it would be 

possible for Commissioners to have a series of votes in a MUR without a successful vote to close 

the file. In 1995, at an American Bar Association symposium, it was noted that a “previous 

General Counsel of the Commission [had been] asked the question on a case that looked like it 

was heading for a 3-3 split.” Symposium on Campaign Finance Enforcement: A Comparative 

View, 11 J. L. & Pol. 1, 12 (1995) (quoting then-FEC General Counsel Lawrence M. Noble). 

The previous General Counsel had been asked, “[w]hat happens if the Commissioners split 3-3, 

and just turn to you and say we’re not going to close the file?” Id. The General Counsel in 1995 

explained that in that eventuality he “would just send the case back up every week until 

something happens.” Id. He further noted that (as of that time) “in practice what happens after a 

3-3 vote is that the Commission then votes unanimously to close the file and make the matter 

public.” Id. 

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that nothing in section [30109] or any other provision of the Act imposes any deadline for the 

Commission to take particular investigatory actions.”). 

In addition, the Commission’s past practice is informed by prudential concerns that this 

Court should take into account. If this Court were to accept plaintiff’s position and find the 

agency has no discretion as to file closure, the result would be hazardous to the customary 

functioning of the FEC’s enforcement process. For one thing, it could result in dismissals of 

enforcement matters when that was not the will of a majority of Commissioners, and even when 

a motion to dismiss a matter had not passed with the vote of four Commissioners. Indeed, three 

Commissioners could effectively dismiss a matter at any time, even if three other Commissioners 

disagreed, which would be contrary to FEC policy and practice. If FEC enforcement matters 

automatically terminated when a Commission vote to find reason to believe did not reach the 

four-vote threshold, it could end the ability of Commissioners to further consider matters and 

inhibit commissioners’ ability to develop their views and to reach consensus following 

deadlocked votes, as described above. 

Plaintiff has failed to meet its burden to prove that the decision of when and how to 

terminate an administrative proceeding, in the absence of a majority vote of the Commissioners 

to do so, is not committed to the agency’s discretion by law under 5 U.S.C. § 701(a)(2). 

C. Plaintiff’s APA Claims Fail Because It Has Not Challenged any Final, Discrete 

Agency Action 

In its Motion to Dismiss, the Commission comprehensively explained that plaintiff’s 

“concealment policy” claims also fail because an alleged “on-going program or policy is not, in 

itself, a ‘final agency action’ under the APA.” (MTD at 20 (citing Bark v. U.S. Forest Serv., 37 

F. Supp. 3d 41, 50 (D.D.C. 2014).) Plaintiff fails to identify any discrete agency action, let alone 

one that is final. The Commission previously detailed the history of its enforcement 

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proceedings, contrasted with the anecdotes offered by plaintiff to establish a general 

“concealment policy.” (See MTD at 23-24.) The Commission showed that what plaintiff 

challenges is not a policy at all. Indeed, in the roughly four years since the administrative 

complaint against plaintiff in MUR 7516 was filed, the agency has closed at least 594 MURs.

9 

Plaintiff alleges — without sufficient evidence — that seven MURs have been wrongly held 

open, but even assuming the truth of that claim, seven matters out of 594 is clearly insufficient to 

establish a general “policy” to challenge under the APA. Further, the Commission’s file closures 

have included a number of matters that were the subject of cases alleging unlawful delay.10 

In response to the FEC’s demonstration of the full scope of its administrative 

enforcement activity, plaintiff appears to engage in a tactical retreat with regard to the relief it 

seeks as to the alleged “policy.” In its Complaint, plaintiff sought “[a]n injunction requiring 

Defendants to issue the required notifications to complainants and respondents and to publicly 

release Commission’s voting records and statements of reasons in any enforcement matter after 

the Commission fails to garner four votes to initiate an enforcement action based on the 

complaint[.]” (Compl. at 28 (prayer for relief) (emphasis added).) However, in its Motion 

plaintiff seeks only “an order ‘compel[ling]’ the FEC to issue the required notifications to the 

parties in the eight enforcement matters and publicly release its voting records and any 

9 FEC, STATUS OF ENFORCEMENT – FISCAL YEAR 2022, SECOND QUARTER (01/01/22-

03/31/22) 4, https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_Second_Quarter_2022_05-06-22_Redacted.pdf 

(reflecting matters closed in the agency’s fiscal years 2019-21 and first two quarters of fiscal 

year 2022). 

10 See, e.g., MUR 7207, https://www.fec.gov/data/legal/matter-under-review/7207/ 

(handling of matter challenged in Free Speech for People, et al. v. FEC, Civ. No. 21-3206 

(D.D.C.); MUR 7422, https://www.fec.gov/data/legal/matter-under-review/7422/ (handling of 

matter challenged in CREW v. FEC, Civ. No. 19-2753 (D.D.C)). 

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statements of reasons.” (MSJ at 39 (citing 5 U.S.C. § 706(1); 28 U.S.C. § 1361).) This change 

is reflected in plaintiff’s discussion of the APA’s discreteness requirement, where it now claims 

that it “challenges the FEC’s discrete failure to act in ‘eight enforcement matters,’ including 

MUR 7516.” (Id. at 22 (citing Statement Regarding Concluded Enforcement Matters 2, 5; 

Compl. ¶¶ 3, 7, 32).) Plaintiff again provides no details as to these matters, and plainly relies 

entirely on the three-Commissioner statement. (Id.) 

The party moving for summary judgment bears the burden of proof, and the court must 

view the record in the light most favorable to the party opposing the motion, giving the nonmovant the benefit of all favorable inferences that can reasonably be drawn from the record and 

the benefit of any doubt as to the existence of any genuine issue of material fact. Def’s. of 

Wildlife, 311 F. Supp. 2d at 53. Here the Commission has provided evidence demonstrating that 

it has considered and closed hundreds of MURs in the time since MUR 7516 was filed. Plaintiff 

has not even alleged that the Commission has adopted a formal or written policy to withhold 

records, but even if it had, such unsupported assertions are insufficient to carry plaintiff’s burden 

at this stage. Plaintiff has vaguely identified a handful of matters, out of hundreds, and claimed 

that its speculation about their handling constitutes a reviewable agency policy. 

Finally, as the Commission has explained (MTD at 25), plaintiff seeks relief that it is 

beyond the power of the judiciary to provide. Based on its speculative allegations of a 

“concealment policy,” plaintiff would have the Court issue an injunction “requiring Defendants 

to issue the required notifications to complainants and respondents and to publicly release 

Commission’s [sic] voting records and statements of reasons in any enforcement matter after the 

Commission fails to garner four votes to initiate an enforcement action based on the 

complaint[.]” (Compl. at 28 (Prayer for Relief).) The imprecision of the phrase “fails to garner” 

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illustrates well why a court may not “require the agency to follow a detailed plan of action” and 

“may not prescribe specific tasks for [the agency] to complete[.]” Cobell v. Kempthorne, 455 

F.3d 301, 307 (D.C. Cir. 2006). Rather, “it must allow [the agency] to exercise its discretion and 

utilize its expertise in complying with broad statutory mandates.” Id. (citing Cobell v. Norton, 

240 F.3d 1081, 1099, 1106 (D.C. Cir. 2001)). The requirement that challenges to agency 

“policy” identify a discrete and formally adopted plan exists so that courts are not required to 

engage in the “management of the agency’s business[,]” Del Monte v. U.S., 706 F. Supp. 2d 

116, 119 (D.D.C. 2010), which here would require the court to substitute its judgment for that of 

the Commissioners and the agency to dismiss matters when it deems appropriate. 

Plaintiff failed to identify, let alone prove with record evidence, a final, discrete agency 

action adopting a “concealment policy.” 

D. Plaintiff Has Not Proven that the Commission Acted Contrary To Law, Nor That Its 

Actions Were Arbitrary And Capricious Under the APA 

Even if reviewable, plaintiff’s claims that the Commission acted “contrary to law” 

(Count I) and “arbitrarily and capriciously” (Counts II and III) with regard to its disclosure of the 

administrative enforcement materials at issue must fail. These claims rely entirely on plaintiff’s 

unproven assertion that FECA and the FEC’s regulations require the dismissal of administrative 

proceedings following a single failed reason-to-believe vote. See Orlov, 523 F. Supp. 2d at 37 

(quoting Norton, 542 U.S. at 64) (“‘a claim under § 706(1) can proceed only where a plaintiff 

asserts that an agency failed to take a discrete agency action that it is required to take.’”). 

Lacking a developed factual record in this proceeding, plaintiff argues in effect that the 

Commission’s failure to publicly disclose the records in seven “terminated” proceedings 

constitutes a per se violation of the APA, irrespective of the facts in those matters. 

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However, as detailed supra, Part VI.A, plaintiff’s interpretation is simply not required 

by the text of FECA, and it is contradicted by the Commission’s own reasonable interpretation of 

the law. And as explained above, the FEC’s interpretation of FECA and its regulations is 

entitled to considerable deference, particularly in light of the Commission’s longstanding 

practice that has been implicitly confirmed by the federal courts. Id. 

In its Motion for Summary Judgment, plaintiff provides the Court with no basis to 

overcome the “presum[ptive] validity of agency action.” Yeutter, 917 F.2d at 596. Plaintiff 

argues that a four-vote threshold to terminate a proceeding is an “extra-statutory requirement[,]” 

(MSJ at 30), but the Commission has shown that its accepted practice is fully consistent with the 

statutory framework. And in the absence of a clear statutory mandate, the agency’s 

interpretation of its implementing laws and regulations is entitled to deference, particularly 

where its decisions concern when and how to initiate or terminate law enforcement proceedings. 

See supra, Part VI.B. It is plaintiff who attempts to read into FECA an extra-statutory 

requirement regarding termination, as FECA is silent as to when a matter is dismissed absent the 

affirmative votes of four Commissioners. 

Plaintiff also makes the conclusory and unsupported allegation that “the FEC’s failure 

to garner four votes to enforce an administrative complaint represents final agency action[.]” 

(MSJ at 30 (citing Bennett, 520 U.S. at 177–78.) This assertion ignores the Commission’s 

showing that an unsuccessful vote to find reason to believe may be followed by a successful one. 

Indeed, one court has noted that a deadlocked reason-to-believe vote “did not ‘make a finding of 

no reason to believe,’” but instead “all the Commission did with respect to plaintiffs was decline 

to make a finding that there was reason to believe[.]” Doe 1, 302 F. Supp. 3d at 165 (emphasis 

added). Nor is the issuance of a statement of reasons by less than four Commissioners in an 

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administrative proceeding a dispositive indication of final agency action. As the Commission 

has explained, a group of three Commissioners is “controlling” only for purposes of judicial 

review of a final decision not to pursue investigative or enforcement actions. See FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). FECA requires that any 

affirmative Commission action to investigate or formally advance enforcement against alleged 

violations be approved by a vote of at least four Commissioners, 52 U.S.C. §§ 30106(c), 

30107(a), and three Commissioners may not establish Commission policy. 

In addition, contrary to its claim, plaintiff has not identified any “settled D.C. Circuit 

precedent” requiring the dismissal of an administrative proceeding following a split vote to find 

reason to believe a violation occurred. (MSJ at 31.) Not one of the cases plaintiff cites actually 

supports plaintiff’s interpretation of FECA: that a deadlocked vote requires the automatic and 

immediate termination of an administrative proceeding. Plaintiff instead relies on out of context 

interpretations of general observations about FEC proceedings, for instance that “[i]f at least four 

Commissioners vote yes, the Commission will investigate; otherwise, the complaint is 

dismissed.” (MSJ at 31 (citing Campaign Legal Ctr. v. FEC, 31 F.4th 781, 785 (D.C. Cir. 

2022)).) The Commission does not dispute that without four affirmative votes the Commission 

cannot proceed with an investigation, and that matters often are dismissed after unsuccessful 

votes to proceed. However, none of these citations support the notion that an FEC matter must 

be automatically terminated after a single deadlocked vote at the reason-to-believe stage, nor that 

the failure to publicly disclose the proceeding records following such a vote constitutes a per se 

violation of the APA. The amount of time that is appropriate for the agency to consider a 

particular matter depends on the facts of each case, see infra, pp. 42-44, facts that are not present 

here with respect to the seven proceedings plaintiff challenges. 

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Plaintiff’s citations to the positions the Commission has taken in court in unrelated 

matters are likewise unpersuasive. As with the courts, the Commission has also made the 

uncontroversial observation that, for instance, “[i]f at least four of the FEC’s six Commissioners 

vote to find such reason to believe, the Commission may investigate the alleged violation; 

otherwise, the Commission dismisses the administrative complaint.” (MSJ at 32 (citing FEC’s 

Motion to Dismiss at 11, CREW v. FEC, 164 F. Supp. 3d 113 (D.D.C. 2015) (No. 14-cv-1419), 

Dkt. No. 5).) This does not constitute an “admission,” tacit or otherwise, that matters are 

terminated following a single deadlocked vote at any stage. And remarkably, while making this 

very argument, plaintiff asserts that an “agency’s ‘past practice’ informs statutory interpretation” 

(MSJ at 32 (citing Nat’l Ass’n for Better Broad. v. Fed. Commc’ns Comm’n, 830 F.2d 270, 277 

(D.C. Cir. 1987)), while failing to acknowledge the Commission’s actual practice of over forty 

years of holding votes to close the administrative file, or the instances in which the 

Commissioners have deadlocked on a merits vote only to determine in a later vote that there was 

in fact reason to believe or probable cause to believe on the same claim. See supra, pp. 27-28. 

Nor does the Commission’s longstanding practice with regard to closure of MUR files 

“thwart[] FECA’s judicial-review process.” (MSJ at 32.) As the Commission has explained, the 

fact that the Commissioners may take multiple votes on the merits of an administrative 

proceeding at the reason-to-believe stage does not mean that the matter is left open 

“indefinitely[.]” (Id. at 33.) The courts have repeatedly observed that FECA imposes no precise 

deadline for the agency to conclude its administrative proceedings. See infra pp. 42-44. Of 

course, this does not mean that any delay in file closure would be justified, but it does mean that 

parties alleging unlawful delay must present more than the threadbare and conclusory allegations 

plaintiff is armed with here, particularly when requesting an order that would alter established 

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agency procedures for handling matters. Plaintiff’s further suggestion that the Commissioners 

“deliberately created” this “misconception” to avoid judicial review is meritless, as “[a]n 

administrative official is presumed to be objective [and] mere proof that [he or] she has taken a 

public position, or has expressed strong views, or holds an underlying philosophy with respect to 

an issue in dispute cannot overcome that presumption.” United Steelworkers v. Marshall, 647 

F.2d 1189, 1208 (D.C. Cir. 1980). Indeed, in one matter in which a court had issued multiple 

orders finding agency dismissals contrary to law and for which there have been no subsequent 

public notification that the agency’s MUR file had been closed, a Commissioner explicitly 

explained more than four years ago that she was exercising her discretion to enable a private 

plaintiff rather than the Commission to pursue enforcement. Statement of Vice Chair Ellen L. 

Weintraub Regarding CREW v. FEC & American Action Network, Apr. 19, 2018.11 That is far 

from an improper concealment, as plaintiff alleges has occurred in certain matters. And plaintiff 

fails to establish that the Commissioner’s reasoning to enable a specific provision of FECA, the 

private right of action fail safe, is somehow contrary to FECA. 

Finally, plaintiff asserts that the Commission has acted arbitrarily and capriciously by 

“depart[ing] from longstanding agency precedent” and failing to “administratively clos[e] the file 

of an enforcement matter when fewer than four Commissioners vote to find reason to believe a 

violation of FECA occurred based on a complaint and there are no further enforcement questions 

presented.” (MSJ at 33.) However, as the Commission has repeatedly explained, it is simply 

incorrect to say that the agency has always voted to close the file immediately following a single 

deadlocked vote. In fact, the Commissioners have deadlocked on a merits vote only to determine 

https://www.fec.gov/resources/cms-content/documents/2018-04-19-ELWstatement.pdf. 

41 

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in a later vote that there was in fact reason to believe or probable cause to believe on the same 

claim. See supra, pp. 27-28. The fact that the Commissioners have on other occasions voted to 

close the file after a deadlocked vote merely underscores that they evaluate each matter on its 

own merits, exercising the discretion that committed to them by law. See supra, Part VI.B. 

E. Plaintiff Has Not Proven that the Commission Unlawfully Withheld or 

Unreasonably Delayed in the Disclosure of Records 

Plaintiff’s “unreasonable delay” claim (Count IV) fails. Plaintiff provides no baseline by 

which the Court might judge how long any of the matters plaintiff describes have been delayed, 

except to claim that seven proceedings were voted on more than one year ago and have not yet 

been terminated. (MSJ at 36.) However, plaintiff does not identify (1) the matters, (2) the 

respondents, (3) the underlying facts, or (4) any procedural history. Plaintiff has not sought from 

the Commission nor offered this Court any further information on these proceedings, and instead 

has moved for summary judgment without anything resembling the evidence required to support 

that relief. See supra p. 11. Without more, the Court has no basis to rule in plaintiff’s favor. 

Even if the Court were to take at face value plaintiff’s assertion that these seven 

proceedings have been pending for more than one year following Commissioner votes on the 

merits, there is no per se rule as to when a matter has been unreasonably delayed under FECA. 

The Court of Appeals has made clear that FECA does not impose some particular time period 

within which FEC administrative enforcement matters must be fully resolved. See, e.g., FEC v. 

Rose, 806 F.2d 1081, 1091-92 & n.17 (D.C. Cir. 1986) (citing the Court of Appeals’s 

“unequivocal[] reject[ion]” of the argument that FECA required the FEC to act on an 

administrative complaint within 120 days and embracing the FEC’s “entirely correct” view that 

“the Commission’s handling of a complaint should be judged under the deferential standards of 

review prescribed in the APA”); In re Nat’l Cong. Club, 1984 WL 148396, at *1 (rejecting 

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presumption that the Commission has acted contrary to law whenever it fails to resolve a 

complaint within the two-year period between elections); accord Perot v. FEC, 97 F.3d 553, 559 

(D.C. Cir. 1996) (explaining the Congressional understanding that some complaints would not be 

investigated or reviewed by the judiciary until after the election at issue); Stockman, 138 F.3d at 

152 (noting that FECA “does not create a deadline in which the FEC must act or create a private 

cause of action to enforce this provision.”); Fieger, 2007 WL 2351006, at *9 (“The Court finds 

that nothing in section [30109] or any other provision of the Act imposes any deadline for the 

Commission to take particular investigatory actions.”). 

Lacking any facts which might support its unreasonable delay claim, plaintiff’s 

evaluation of the factors courts use to evaluate such claims is deficient, and in any event is 

derivative of its misreading of FECA, and does not provide an independent basis for this Court to 

rule in its favor. First, plaintiff simply fails to address the factors identified in Common Cause, 

489 F. Supp. at 744, that are used to evaluate such claims. 

Plaintiff does address the TRAC factors, see 750 F.2d at 80, but its arguments are 

unavailing. Plaintiff’s argument regarding the first two TRAC factors is that the Commission’s 

failure to publicly release the records in the seven other matters it has identified within 30 days 

“is in plain violation of the timetable required by regulation.” (MSJ at 36.) As explained supra, 

Part VI.A, however, plaintiff has failed to demonstrate that these matters are in fact terminated. 

With regard to the second TRAC factor, Congress has in fact provided no timetable for the 

agency to conclude enforcement proceedings, weighing strongly against any finding of 

unreasonable delay in this case. See Fieger, 2007 WL 2351006, at *9 (“[N]othing in section 

[30109] or any other provision of the Act imposes any deadline for the Commission to take 

particular investigatory actions.”). With regard to the fifth factor, plaintiff simply asserts that the 

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“interests prejudiced by delay” include its “First Amendment rights” (MSJ at 36), but it does not 

explain how any delay as to unidentified respondents in other matters could have that effect. 

The third TRAC factor calls on the Court to consider whether the regulation at issue is 

more akin to “economic regulation[,]” where delay is more reasonable, versus situations where 

“human health and welfare are at stake[.]” 750 F.2d at 80. Plaintiff asserts that “[t]he 

Commission’s actions do not relate to any ‘economic regulation’” (MSJ at 36), but in fact, courts 

have concluded that cases involving FEC enforcement proceedings are not cases in which 

“human health and welfare are at stake[.]” Rose, 806 F.2d at 1091 n.17. 

Plaintiff’s argument with regard to the fourth factor is that the release of records in 

terminated proceedings “will not have any impact on the Commission’s priorities” (MSJ at 37), 

but again, there is no evidence these matters are closed, and in any case, the setting of agency 

priorities and use of agency resources in this law enforcement context is committed to the 

agency’s discretion. “[R]espect for the autonomy and comparative institutional advantage of the 

executive branch has traditionally made courts slow to assume command over an agency’s 

choice of priorities.” In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C. Cir. 1991) (citing In re 

Monroe Communications Corp., 840 F.2d 942, 946 (D.C.Cir.1988)). 

Because the record in this case falls far short of the particular facts needed to establish an 

unreasonable delay claim, plaintiff’s Count IV fails as a matter of law. 

VII. PLAINTIFF’S MANDAMUS CLAIM FAILS AS A MATTER OF LAW BECAUSE 

PLAINTIFF CANNOT ESTABLISH A CLEAR AND INDISPUTABLE RIGHT 

TO THAT DRASTIC RELIEF 

Plaintiff offers a brief argument in support of its mandamus claim (MSJ at 37-38), but it 

fails to show that such extraordinary relief is warranted. (See MTD at 31-33; Reply at 25.) The 

parties agree that “[t]o show entitlement to mandamus, plaintiffs must demonstrate (1) a clear 

and indisputable right to relief, (2) that the government agency or official is violating a clear duty 

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to act, and (3) that no adequate alternative remedy exists.” (MTD at 31; MSJ at 37.) The FEC 

showed that plaintiff’s mandamus claim is moot with respect to MUR 7516, and that an order 

providing broad relief as to its “concealment policy” claim would be unjustified, with no 

showing of a “clear and indisputable” right to relief or that the agency is violating a “clear duty 

to act.” (MTD at 32-33.) In response, plaintiff repeats its assertion that the “sources of federal 

law” it cites “contain mandatory, non-discretionary duties” (MSJ at 37), but as explained above, 

no such duties apply in situations where FEC enforcement files have not been closed in the 

customary way. See supra, Part VI.A. As previously explained, “[d]isagreements between 

Commissioners about the termination of certain administrative proceedings demonstrate the 

disputability of the issues plaintiff raises.” (MTD at 33.) Plaintiff discounts that point, but 

plaintiff itself relies heavily on Commissioner statements (e.g., MSJ at 6, 9, 10, 14, 20, 22-24, 

29, 32, 37), and what is really “indisputable” here is that Commissioners’ views on this aspect of 

FECA implementation differ. 

CONCLUSION 

For the foregoing reasons, plaintiff’s Motion for Summary Judgment should be denied. 

Respectfully submitted, 

Lisa Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

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/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

COUNSEL FOR DEFENDANTS 

FEDERAL ELECTION COMMISSION ET AL. 

1050 First Street NE 

Washington, DC 20463 

August 26, 2022 (202) 694-1650 

46 
 

Case 1:22-cv-01422-CJN Document 26 Filed 08/26/22 Page 56 of 56 

CERTIFICATE OF SERVICE 

I hereby certify that on August 26, 2022, I served the foregoing pursuant to Fed. R. Civ. 

P. 5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

47