Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 1 of 33 

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., ) REPLY IN SUPPORT OF 

) MOTION TO DISMISS 

Defendants. ) 

) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION TO DISMISS 

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 

Greg J. Mueller (D.C. Bar No. 462840) 

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

Attorneys 

gmueller@fec.gov 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

August 12, 2022 (202) 694-1650 
 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 2 of 33 

TABLE OF CONTENTS 

PAGE 

I. PLAINTIFF’S MUR 7516 ALLEGATIONS ARE MOOT BECAUSE 

IT HAS ALL THE INFORMATION IT SEEKS ..........................................................2 

II. PLAINTIFF LACKS STANDING TO CHALLENGE THE ALLEGED 

“CONCEALMENT POLICY,” AND IN ANY CASE FAILS TO STATE 

A CLAIM UPON WHICH RELIEF CAN BE GRANTED AS TO THAT 

CHALLENGE................................................................................................................9 

A. Plaintiff Lacks Standing to Pursue Its Broad “Concealment Policy” 

Allegations Because It Is Not a Party to the Administrative 

Complaints it Challenges, and It Lacks a Cognizable Legal 

Interest in Those Proceedings ............................................................................9 

B. Plaintiff’s Broad “Concealment Policy” Allegations Fail to State a 

Claim Upon Which Relief Can Be Granted.....................................................12 

1. The FEC’s Determination as to When to Terminate 

Enforcement Proceedings Is Not Reviewable Because It Is 

Committed to the Agency’s Discretion by Law ..................................12 

2. Plaintiff Has Failed to Challenge a Discrete Agency Action ..............17 

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

JUDICIAL REVIEW PROVISION IS THE EXCLUSIVE PROCEDURE 

FOR CHALLENGING THE FEC’S HANDLING OF ENFORCEMENT 

PROCEEDINGS..........................................................................................................20 

IV. PLAINTIFF’S MANDAMUS CLAIM SHOULD BE DISMISSED BECAUSE 

PLAINTIFF LACKS STANDING AND CANNOT ESTABLISH A CLEAR AND 

INDISPUTABLE RIGHT TO THAT DRASTIC RELIEF.........................................25 

CONCLUSION........................................................................................................................25 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 3 of 33 

TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Allen v. Wright, 468 U.S. 737 (1984) ........................................................................................... 10 

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013).......................................................................... 7, 8 

Am. Fed’n of Gov’t Emps. v. Trump, 929 F.3d 748 (D.C. Cir. 2019)........................................... 20 

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987)............................................................. 10 

Ascendium Educ. Sols., Inc. v. Cardona, 

Civ. No. 19-03831 (CJN), 2022 WL 558190 (D.D.C. Feb. 24, 2022) ........................................ 4 

Ass’n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007).......................................... 14 

Bark v. U. S. Forest Serv., 37 F. Supp. 3d 41 (D.D.C. 2014)....................................................... 17 

Beam v. Gonzales, 548 F. Supp. 2d 596 (N.D. Ill. 2008) ....................................................... 15, 23 

Belmont Abbey Coll. v. Sebelius, Civ. No. 11-1989, 2012 WL 3861255 (D.D.C. Sept. 5, 2012).. 9 

Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................... 10 

Block v. Community Nutrition Inst., 467 U.S. 340 (1984)...................................................... 22, 23 

Bowles v. Russell, 551 U.S. 205 (2007)........................................................................................ 20 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ...................................................... 12 

Cato Inst. v. Sec. & Exch. Comm’n, 4 F.4th 91 (D.C. Cir. 2021)................................................... 8 

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

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

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

892 F.3d 434 (D.C. Cir. 2018)....................................................................................... 13, 14, 16 

City of Orville v. FERC, 147 F.3d 979 (D.C. Cir. 1998) ................................................................ 9 

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979)........................................................... 20 

Clapper v. Amnesty Int'l, 568 U.S. 398 (2013)............................................................................... 4 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 4 of 33 

Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006)................................................................... 9 

Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) ......................................................................... 9 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ................................................................ 3 

Connectu LLC v. Zuckerberg, 522 F.3d 82 (1st Cir. 2008) ............................................................ 5 

Deakins v. Monaghan, 484 U.S. 193 (1988)................................................................................... 8 

Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019)...................................................... 14, 19 

Diamond v. Charles, 476 U.S. 54 (1986) ..................................................................................... 10 

FEC v. Akins, 524 U.S. 11 (1998)................................................................................................. 12 

Fieger v. Gonzales, 

Civ. No. 07-10533, 2007 WL 2351006 (E.D. Mich. Aug. 15, 2007)..........14, 16, 19-20, 23, 24 

Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 2020)...................................... 3, 12 

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) .................................................... 3, 4 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) ...................................... 7 

FTC v. Standard Oil Co., 449 U.S. 232 (1980) ............................................................................ 23 

Heckler v. Chaney, 470 U.S. 821 (1985) ................................................................................ 13, 14 

In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 

928 F.3d 42 (D.C. Cir. 2019)....................................................................................................... 9 

Jarkesy v. S.E.C., 803 F.3d 9 (D.C. Cir. 2015)............................................................................. 21 

Judicial Watch, Inc. v. FEC, 

293 F. Supp. 2d 41 (D.D.C. 2003)........................................................................................10-11 

Klayman v. Obama, 142 F. Supp. 3d 172 (D.D.C. 2015)............................................................... 4 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 4, 5, 7 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013).......................................................................... 3, 12 

Nat’l Veterans Affs. Council v. Fed. Serv. Impasses Panel, 

Civ. No. 20-00837, 2021 WL 5936407 (D.D.C. Feb. 10, 2021)............................................... 21 

iii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 5 of 33 

Norton v. S. Utah Wilderness, 542 U.S. 55 (2004)....................................................................... 20 

Orlov v. Howard, 523 F. Supp. 2d 30 (D.D.C. 2007)................................................................... 20 

Paging Sys., Inc. v. FCC, Civ. No. 11-1989, 2010 WL 5121962 (D.C. Cir. Aug. 30, 2010)......... 8 

Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ............................................. 7 

Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970)............................................................................. 14 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)........................................................................... 22, 23 

Pub. Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002) ....................................................... 7 

Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006) ............................... 13 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) ....................................................................... 8 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011).................................................... 14, 19, 20 

Stockman v. FEC, 138 F.3d 144 (D.C. Cir. 1998) .......................................................16, 20, 22-24 

Stonehill v. IRS, 558 F.3d 534 (D.C. Cir. 2009) ............................................................................. 4 

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)............................................................... 21 

Xie v. Kerry, 780 F.3d 405 (D.C. Cir. 2015)........................................................................... 18, 19 

Statutes and Regulations 

5 U.S.C. § 555(e) .......................................................................................................................... 18 

5 U.S.C. § 701(a)(2).......................................................................................................... 12, 13, 14 

5 U.S.C. § 706(1) .............................................................................................................. 10, 18, 20 

8 U.S.C. § 1153(e)(1).................................................................................................................... 19 

28 U.S.C § 1331............................................................................................................................ 20 

28 U.S.C. § 1361..................................................................................................................... 10, 18 

52 U.S.C. § 30106......................................................................................................................... 15 

52 U.S.C. § 30107................................................................................................................... 15, 24 

iv 
 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 6 of 33 

52 U.S.C. § 30109....................................................................................... 1, 16, 19, 20, 21, 22, 24 

11 C.F.R. § 111.9.......................................................................................................................... 19 

11 C.F.R. § 111.20........................................................................................................................ 19 

Miscellaneous 

Symposium on Campaign Finance Enforcement: A Comparative View, 

11 J. L. & Pol. 1 (1995) ............................................................................................................. 15 

v 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 7 of 33 

Plaintiff Heritage Action for America (“Heritage Action”) has opposed the Federal 

Election Commission’s (“Commission” or “FEC”) Motion to Dismiss (Docket No. 17, “Motion” 

or “Mot.”), but plaintiff has failed to refute the FEC’s showing that the Court lacks jurisdiction to 

consider its claims and that plaintiff has failed to state a claim upon which relief can be granted. 

As an initial matter, this Court lacks jurisdiction to address plaintiff’s claims because they 

are moot. Plaintiff now has all the information it sought with regard to the FEC administrative 

enforcement matter in which it was a respondent, and it has identified no tenable way around that 

mootness. Plaintiff’s brief indicates that it is not a party to any other FEC enforcement 

proceeding, and that there is no concrete reason to suspect it will be in the future. (Plaintiff’s 

Combined Mem. Of P. & A. in Opp’n to the FEC’s Mot. to Dismiss and in Supp. of Pl.’s CrossMot. for Summ. J. (Docket No. 20-1, “Response” or “Resp.”).)1 

Plaintiff’s “concealment policy” claims must also fail. It lacks standing to pursue them 

on behalf of unidentified respondents in the other FEC enforcement matters to which it refers. 

Further, plaintiff has failed to identify any discrete agency action, as required to bring a 

challenge under the Administrative Procedure Act (“APA”). And it also articulates no agency 

“policy” subject to APA challenge, but merely the handling of that small group of other 

enforcement matters, as to which it seeks to override the FEC’s law enforcement discretion and 

overturn decades of agency practice with regard to the termination of such matters. 

In any event, plaintiff’s APA and mandamus claims are precluded by the judicial review 

provision of the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30109(a)(8), which is 

On August 11, 2022, the Commission filed a motion to stay briefing on plaintiff’s 

Cross-Motion for Summary Judgment. (See Docket No. 22.) This filing does not address the 

points and authorities raised in the cross-motion combined with plaintiff’s response to the 

Commission’s Motion to Dismiss, and the Commission reserves the right to respond as necessary 

following the Court’s ruling on the motion to stay. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 8 of 33 

the exclusive means of challenging the FEC’s handling of administrative enforcement matters. 

Contrary to plaintiff’s contentions, that well-established principle applies not only to claims by 

administrative complainants, but to claims by respondents like plaintiff as well. 

For the foregoing reasons, plaintiff’s complaint should be dismissed. 

I. PLAINTIFF’S MUR 7516 ALLEGATIONS ARE MOOT BECAUSE IT HAS ALL 

THE INFORMATION IT SEEKS 

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

voting records and any statement of reasons regarding Matter Under Review (“MUR”) 7516, in 

which plaintiff was the respondent. (Pl.’s Compl. for Declaratory and Injunctive Relief 

(“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. (Mot. at 5-7.) Plaintiff received all this information by June 15, 2022, via 

its Freedom of Information (“FOIA”) request, and the FEC made the entire case file publicly 

available 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, as it is suffering no ongoing harm, nor can this Court redress any harm.2 This Court 

thus lacks jurisdiction to consider these claims. (Mot. at 12-16.) 

In its Response, plaintiff does not dispute that it is currently in possession of all the 

information it sought with respect to MUR 7516. Instead, plaintiff attempts to shift the debate by 

Contrary to plaintiff’s assertions, the FEC does not “conflate[]” standing and mootness. 

(Resp. at 13.) Plaintiff has never had standing as to its “concealment policy” allegations for 

matters where it is not a party. Mot. at 16-19; infra, Part II.A. To the extent plaintiff had 

2 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 9 of 33 

raising a series of claims that are equally unavailing and fail to articulate any ongoing and legally 

cognizable injury for purposes of establishing Article III standing. 

First, plaintiff argues that the FEC’s ongoing “concealment policy” with respect to other 

matters to which plaintiff is not a respondent constitutes a cognizable informational injury 

sufficient to confer standing, but plaintiff’s vague claim of injury on that basis falls short. (Resp. 

at 14-16.) Plaintiff says “such information may help Heritage Action defend against [the] citizen 

suit [brought against it by Campaign Legal Center] by providing ... further proof that the citizen 

suit here was the product of a larger scheme to deceive the courts.”3 (Id. at 15.) 

However, “[n]ot every unrequited demand for information from the FEC is sufficient to 

establish Article III standing.” Free Speech for People v. FEC, 442 F. Supp. 3d 335, 342 

(D.D.C. 2020). “[T]he nature of the information allegedly withheld is critical to the standing 

analysis.” Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (per curiam). “Only if 

the statute grants a plaintiff a concrete interest in the information sought will he be able to assert 

an injury in fact.” Nader v. FEC, 725 F.3d 226, 229 (D.C. Cir. 2013); see Friends of Animals v. 

Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (stating that “the existence and scope of an injury for 

informational standing purposes is defined by Congress”). This is because a plaintiff does not 

have a “justiciable interest in the enforcement of the law.” Common Cause, 108 F.3d at 418. 

Plaintiff makes no attempt to show that FECA or any other statute provides plaintiff with 

“a concrete interest in the information sought[.]” Nader, 725 F.3d at 229. Plaintiff provides no 

standing to pursue its allegations with respect to MUR 7516, such claims are moot, for the 

reasons articulated herein. 

As a threshold matter, plaintiff’s attempt to rebut mootness by relying on the FEC’s 

alleged “concealment policy” fails because no such policy exists, and plaintiff is merely 

contesting the exercise of Commissioner discretion on a case-by-case basis, without identifying a 

discrete legal action as required for a challenge under the APA. See infra pp. 12-20. 

3 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 10 of 33 

authority or precedent for the proposition that its generalized interest in understanding “how the 

Commission is enforcing FECA in these matters” or gaining information that would “help 

Heritage Action defend against” hypothetical future legal action confers upon it a legally 

cognizable interest in information about other FEC enforcement proceedings. (Resp. at 13.) 

Plaintiff does not show that Congress intended to provide parties with information to defend 

against such proceedings. Cf. Friends of Animals, 828 F.3d at 992 (“the existence and scope of 

an injury for informational standing purposes is defined by Congress”). Plaintiff suggests that 

“the identity of the requester is irrelevant to whether disclosure is required[,]” but the quoted 

statement is explicitly limited to the FOIA context and insufficient to overcome the precedent 

above. (Resp. at 16 (citing Stonehill v. IRS, 558 F.3d 534, 538–39 (D.C. Cir. 2009) (FOIA)).) 

Even if an interest in defending against unknown future law enforcement proceedings 

were cognizable, plaintiff makes no claim that such proceedings are imminent, and any 

“‘threatened injury must be certainly impending’ to prevent litigation of illusory claims.” 

Klayman v. Obama, 142 F. Supp. 3d 172, 184 (D.D.C. 2015) (emphasis in original) (quoting 

Clapper v. Amnesty Int'l, 568 U.S. 398, 409 (2013)). The fact that the information may be useful 

at some future date is insufficient. See Ascendium Educ. Sols., Inc. v. Cardona, Civ. No. 19-

03831, 2022 WL 558190, at *5 (D.D.C. Feb. 24, 2022) (citing Lujan v. Defs. of Wildlife, 504 

U.S. 555, 564 (1992)) (“‘[S]ome day’ intentions—without any description of concrete plans, or 

indeed any specification of when some day will be—do not support a finding of the ‘actual or 

imminent’ injury that [the Supreme Court’s] cases require.”). Nor does plaintiff articulate how it 

will be harmed if it does not get information about these seven enforcement proceedings prior to 

the time the FEC makes the information public after closure of the administrative file in each 

matter, as the FEC will continue to do consistent with longstanding disclosure policies. 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 11 of 33 

Because plaintiff fails to articulate a legally cognizable “information injury” in the details 

of ongoing third-party enforcement proceedings, there is no possibility that the alleged harm will 

be “redressed by a favorable decision.” Lujan, 504 U.S. at 561. 

Second, plaintiff attempts to establish a surviving “litigation injury” by arguing that “a 

declaratory judgment that the FEC unlawfully concealed its voting records in MUR 7516 . . . 

would help Heritage Action obtain dismissal of [Campaign Legal Center’s (“CLC”)] citizen 

suit.” (Resp. at 16.) However, this argument relies on two premises that cannot withstand 

scrutiny. The first premise is that the FEC’s “concealment policy is the but-for cause of CLC’s 

citizen suit against Heritage Action[.]” (Id. at 17.) Even assuming such a “concealment policy” 

existed (it does not) and was applied in plaintiff’s enforcement proceeding, plaintiff fails to 

establish that the court in CLC v. FEC, Civ. No. 1:21-cv-0406-TJK (D.D.C.), would have 

reached a different result had plaintiff been in possession of the information it sought as to MUR 

7516 when that matter was decided. The second premise is that “a declaratory judgment would 

provide effective relief to Heritage Action to defend against the citizen suit.” (Resp. at 13.) 

Plaintiff makes no effort to define the chain of causation, but presumably “effective relief” 

constitutes the dismissal of CLC v. Heritage Action, Civ. No. 22-01248 (CJN) (D.D.C.). 

Plaintiff fails to show that declaratory judgment in this action will affect that other action, let 

alone provide some form of “effective relief.”4 In fact, a declaration that the Commission acted 

unlawfully in failing to release MUR information would have no bearing on the modes of 

Plaintiff fails to analogize the collateral consequences doctrine cases it cites, which 

have in common the element that the relief sought would have clear and obvious “collateral 

consequences” on other pending legal action, a factual predicate that is not met here. See, e.g., 

Connectu LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008) (appeal not moot when “district 

court’s decision to dismiss the original action for want of subject matter jurisdiction has a 

concrete (and potentially devastating) impact on the second action”). 

5 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 12 of 33 

analysis courts employ in reviewing whether the agency has failed to act in the MUR itself. See 

Giffords v. FEC, Civ. No. 19-1192 (EGS), 2021 WL 4805478, at *8 (D.D.C. Oct. 14, 2021) 

(finding a failure to act even though the court was aware of prior split votes on whether there was 

reason to believe violations of FECA occurred, based on the factors in Common Cause v. FEC, 

489 F. Supp. 738 (D.D.C. 1980) and Telecommunications Research & Action Center v. FCC, 

750 F.2d 70 (D.C. Cir. 1984)). In any event, plaintiff’s recent dispositive filings in both of the 

above-cited actions involving Campaign Legal Center indicate that plaintiff is in possession of 

the information it deems necessary to “defending ongoing legal action” without what would 

amount to an advisory opinion from this Court on FEC conduct.5 (See Mot. at 15.) 

Plaintiff’s claim to “litigation injury” is in part moot and in part fails to present a legally 

cognizable injury for standing, because plaintiff is in possession of the information it sought and 

fails to show that the declaratory judgment it seeks would redress the claimed injury. 

Third, plaintiff appears to argue that the FEC cannot evade judicial review of its alleged 

“policy” by in effect waiving it or making an exception in this particular case. Notably, this 

argument does not allege an independent basis for standing and fails to establish a particular, 

non-moot injury. Instead, the argument is once again entirely contingent upon the existence of 

an unlawful “concealment policy.” But as explained infra and in the FEC’s Motion, plaintiff has 

failed to show the existence of any such policy, as opposed to the Commissioners’ exercise of 

their discretion on a case-by-case basis. See infra Part II.B.1. In each of the cases cited by 

plaintiff, there was no dispute as to the existence of an unlawful agency policy. (Resp. at 18 

For example, on July 8, 2022, plaintiff filed a motion to dismiss the private enforcement 

action initiated against it by the Campaign Legal Center. Defendant’s Mem. of P. & A. in Supp. 

of Mot. to Dismiss, CLC v. Heritage Action, (22-1248) Docket. No. 20-1. This motion attached 

as exhibits and made frequent reference to the MUR 7516 vote certifications and statements of 

reasons. Id. Docket Nos. 20-6, 20-7 (Exhs. E, F). 

6 

5 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 13 of 33 

(citing Payne Enters., Inc. v. United States, 837 F.2d 486, 494–95 (D.C. Cir. 1988); Pub. Citizen 

v. Dep’t of State, 276 F.3d 634, 641 (D.C. Cir. 2002)).) Because plaintiff’s “concealment 

policy” claims fail as a matter of law, they fail to provide an independent basis on which to avoid 

mootness here. 

Fourth, plaintiff mischaracterizes the standard by which the potential for future harm 

may constitute an injury in fact. It is true that the party asserting mootness bears a “heavy” 

burden where “[t]he only conceivable basis for a finding of mootness in th[e] case is [the 

respondent’s] voluntary conduct.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

528 U.S. 167, 189 (2000) (emphasis added). However, “once it is ‘absolutely clear’ that 

challenged conduct cannot ‘reasonably be expected to recur,’ . . . the fact that some individuals 

may base decisions on ‘conjectural or hypothetical’ speculation does not give rise to the sort of 

‘concrete’ and ‘actual’ injury necessary to establish Article III standing.” Already, LLC v. Nike, 

Inc., 568 U.S. 85, 97 (2013) (citing Friends of the Earth, 528 U.S. at 190; Lujan, 504 U.S. at 

560). In other words, if there is no reasonable basis to believe the challenged conduct will recur, 

mootness is established, even if it was the result of a defendant’s voluntary conduct. 

Here, the Commission has provided plaintiff with the vote certifications and statement of 

reasons it sought via its standard FOIA response process and the procedures which follow from 

the closure of the enforcement case file. Plaintiff provides no evidence to support its assertion 

that the documents were disclosed in response to this lawsuit, hence the Commission’s 

“voluntary conduct” is plainly not the “only conceivable basis” for finding mootness, and the 

“heavy” burden plaintiff cites does not apply. Friends of the Earth, 528 U.S. at 189. 

There is also no risk that the Commission could resume the “harmful” conduct plaintiff 

has alleged; plaintiff has all the documents it sought regarding MUR 7516, and the Commission 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 14 of 33 

can no longer withhold these records from plaintiff even if it were inclined to do so. Even where 

a party must meet a heightened burden to show mootness due to its voluntary cessation of 

conduct, a claim is still moot where the underlying conduct could not be resumed in “this or any 

subsequent action[,]” because it is entirely “speculative” that any similar claim would arise in the 

future. Deakins v. Monaghan, 484 U.S. 193, 200, n. 4 (1988) (dismissing matter as moot 

because the challenged action, pursuing a claim in court, could not be resumed in “this or any 

subsequent action,” as opposed to one in which a defendant is “free to return to his old ways.”). 

Furthermore, plaintiff’s assertions as to its future litigation risk are simply “conjectural or 

hypothetical speculation.” Already, 568 U.S. at 97. Plaintiff has provided the Court with no 

evidence or reason to suspect it will be the target of future enforcement proceedings, other than 

statements in attorney briefs that it is a politically engaged 501(c)(4) organization, much less that 

the Commission would unlawfully withhold records from it in those hypothetical proceedings. 

(Resp. at 19-20.) As a result, its allegations do not “give rise to the sort of ‘concrete’ and 

‘actual’ injury necessary to establish Article III standing[.]” Already, 568 U.S. at 102 (internal 

citations omitted) (dismissing as moot movant’s counterclaim where it was “absolutely clear” 

that manufacturer could not reasonably be expected to resume its enforcement efforts against 

competitor). See also Paging Sys., Inc. v. FCC, Civ. No. 10-1097, 2010 WL 5121962, at *1 

(D.C. Cir. Aug. 30, 2010) (per curiam) (concluding that “[b]are allegations are insufficient . . . to 

establish . . . standing to seek judicial review of administrative action” and granting motion to 

dismiss) (citing Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)); Cato Inst. v. Sec. & 

Exch. Comm’n, 4 F.4th 91, 96 (D.C. Cir. 2021) (per curiam) (affirming dismissal for lack of 

standing and noting that “[w]hen assessing standing at any stage of the litigation, we do not 

accept inferences that are unsupported by the facts alleged in the complaint.”) (citing In re U.S. 

8 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 15 of 33 

Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (per curiam)); 

Belmont Abbey Coll. v. Sebelius, Civ. No. 11-1989, 2012 WL 3861255, at *3 (D.D.C. Sept. 5, 

2012) (“The threat of future litigation is inadequate to satisfy the imminent-injury component of 

the standing doctrine.”) (citing City of Orville v. FERC, 147 F.3d 979, 987 (D.C. Cir. 1998)). 

Because plaintiff now has the information it sought in this lawsuit, its claims are moot. 

II. PLAINTIFF LACKS STANDING TO CHALLENGE THE ALLEGED 

“CONCEALMENT POLICY,” AND IN ANY CASE FAILS TO STATE A CLAIM 

UPON WHICH RELIEF CAN BE GRANTED AS TO THAT CHALLENGE 

In addition to seeking records as to MUR 7516, plaintiff makes a sweeping challenge to 

what it claims is an agency “concealment policy” with regard to such records. However, 

plaintiff lacks standing to pursue such a claim involving respondents in FEC matters in which 

plaintiff is not involved. In any event, plaintiff fails to state a claim upon which relief can be 

granted under the APA, because it has failed to identify any “policy” that would be reviewable as 

discrete agency action, but instead merely complains about discretionary agency actions in a 

handful of unidentified FEC enforcement matters. The relief plaintiff seeks, however, would 

reverse decades of agency practice as to when and how FEC enforcement matters end and 

contravene the court’s obligation to “allow [the agency] to exercise its discretion and utilize its 

expertise in complying with broad statutory mandates.” Cobell v. Kempthorne, 455 F.3d at 301, 

307 (D.C. Cir. 2006) (citing Cobell v. Norton, 240 F.3d 1081, 1099, 1106 (D.C. Cir. 2001)). 

A. Plaintiff Lacks Standing to Pursue its Broad “Concealment Policy” Allegations 

Because It Is Not a Party to the Administrative Complaints It Challenges, and It 

Lacks a Cognizable Legal Interest in Those Proceedings 

Plaintiff concedes that it “is not attempting to sue on behalf of third parties,” but instead 

it claims to be “seeking the information in the other MURs to redress its own informational 

injuries.” (Resp. at 16 n.1.) However, plaintiff’s alleged “injury” as to information in unrelated 

third-party proceedings is an insufficient basis to establish Article III standing. 

9 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 16 of 33 

In particular, plaintiff attempts 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[.]” (Resp. at 16.) Plaintiff’s sole source of knowledge as to 

these matters appears to be a public statement made by three FEC Commissioners. (See Resp. 

Exh. A (Docket No. 20-2).) As with its Complaint, plaintiff’s Response does not (i) identify 

these matters, (ii) identify the respondents, or (iii) provide any details as to factual similarities of 

the matters with each other or with the matter in which plaintiff was a respondent. Nonetheless, 

plaintiff seeks “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 statements of 

reasons.” (Resp. at 39 (alteration in original) (citing 5 U.S.C. § 706(1); 28 U.S.C. § 1361).) 

In this situation, plaintiff has offered no basis to overcome the “judicially self-imposed 

limits on the exercise of federal jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162 (1997) 

(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). “[T]he 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. FCC, 808 F.2d 84, 91 (D.C. Cir. 1987) (quoting Diamond v. Charles, 476 

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

This Court has 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. In Judicial Watch, Inc. v. Federal Election 

Commission, 293 F. Supp. 2d 41, 43 (D.D.C. 2003), a nonprofit legal organization that acted as 

counsel for an individual contributor to a United States Senate campaign, and the contributor 

himself, brought an action under FECA’s judicial review provision alleging that the Commission 

10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 17 of 33 

had failed to respond to or investigate an administrative complaint the contributor had filed 

against the campaign committee. Both plaintiffs alleged that this resulted in informational 

injury, as they had been deprived of information they sought when the administrative complaint 

was filed. Id. The court found that the non-profit, despite serving as counsel to the contributor, 

was not an administrative complainant and therefore was precluded from seeking judicial review 

under FECA. Id. at 44-45. The court also found that the contributor had “not suffered a concrete 

and particularized injury cognizable by this Court, and therefore lack[ed] standing[.]” Id. at 45. 

The court rejected the contributor’s arguments (1) that he had been deprived of information 

uncovered during the FEC investigation of his administrative complaint as they pertained to his 

own contributions; (2) that he might become himself, in the future, a potential respondent in an 

FEC investigation of the recipient committee and such information would assist in his defense; 

and (3) that the FEC’s delay constituted, in and of itself, an injury in fact. Id. at 45-48. 

Here, plaintiff does not allege that it is a complainant or respondent in any of the seven 

other proceedings to which it refers, and for that reason alone it lacks standing to challenge FEC 

actions in those proceedings. See supra, Part I; Jud. Watch, Inc., 293 F. Supp. 2d at 48 (counsel 

to contributor “is precluded from bringing suit here because it was not a party to the underlying 

administrative complaint”). In addition, the possibility that plaintiff “may be a potential 

defendant in a future investigation” is insufficient because plaintiff “has put forth no evidence 

that an investigation of [its conduct] is ongoing; [it] merely states that one is possible. Future, 

speculative injury does not satisfy the test for standing as articulated by the Supreme Court in 

Lujan.” Jud. Watch, Inc., 293 F. Supp. 2d at 47-48. Nor would the Commission’s “delay in 

acting on [plaintiff’s] administrative complaint” constitute “an injury in fact,” because there is 

simply “no basis in the law” to find that such a delay is sufficient. Id. at 48. 

11 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 18 of 33 

Plaintiff’s claims of informational injury related to proceedings to which it has no 

connection are similar to but even weaker than unsuccessful past claims about the FEC’s 

handling of enforcement matters. See, e.g., Free Speech for People, 442 F. Supp. 3d at 343 

(non-profit had no informational interest in obtaining evidence of illegal campaign contributions 

by Trump campaign); Nader, 725 F.3d at 229 (former presidential candidate did not have 

sufficiently concrete interest in information that might show various organizations violated 

election laws to keep him off the ballot). 

Plaintiff’s claims also stand in stark contrast to situations in which courts have found 

informational injury. FEC administrative complainants have been able to establish such standing 

in limited situations where they could show their allegations, if successfully pursued, would 

result in the disclosure of specific information that FECA required to be disclosed by 

administrative respondents and show that such information would be useful to the complainants 

in their programmatic activities. See, e.g., Campaign Legal Ctr. v. FEC, 31 F.4th 781, 783 (D.C. 

Cir. 2022) (finding that “FECA-required factual information about the amounts of the contested 

coordinated, in-kind contributions ... “ ‘would help [administrative complainants] ... to evaluate 

candidates for public office, ... and to evaluate the role that [respondents’] financial assistance 

might play in a specific election.’”) (quoting FEC v. Akins, 524 U.S. 11, 21 (1998)). Plaintiff is 

not an administrative complainant, and it has not attempted to make such a showing. 

B. Plaintiff’s Broad “Concealment Policy” Allegations Fail to State a Claim Upon 

Which Relief Can Be Granted 

1. The FEC’s Determination as to When to Terminate Enforcement 

Proceedings Is Not Reviewable Because It Is Committed to the Agency’s 

Discretion by Law 

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, 

12 
 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 19 of 33 

“agency enforcement decisions, to the extent they are committed to agency discretion, are not 

subject to judicial review for abuse of discretion.” Citizens for Resp. & Ethics in Washington v. 

FEC, 892 F.3d 434, 442 (D.C. Cir. 2018). 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)). 

Here, while plaintiff is ultimately seeking “information,” it appears to also challenge the 

failure to consider enforcement proceedings terminated following any vote that fails to find 

reason to believe a FECA violation occurred. Plaintiff does not challenge the FEC’s practice of 

holding votes to close the administrative file. Indeed, plaintiff acknowledges that “[b]y 

longstanding policy and practice, the Commission has traditionally held an administrative vote to 

close the enforcement file.” (Compl. ¶ 27.) What plaintiff objects to is the way in which certain 

Commissioners have voted (i.e., exercised their discretion) in this regard in a small number of 

matters. (Compl. ¶ 32) (“Commissioners Walther, Broussard, and Weintraub have refused to 

vote to administratively close the files in eight enforcement matters before the Commission[.]”). 

While acknowledging that the vote to close the file constitutes “longstanding policy and 

practice” at the FEC, plaintiff simultaneously argues that it is a “purely ministerial and legally 

insignificant act[.]” (Compl. ¶ 30.) But in its Response, plaintiff completely fails to engage with 

the detailed history of the agency’s enforcement process provided in the Commission’s Motion, 

which belies plaintiff’s claim that such immediate dismissals are automatic or required. (Mot. at 

24-25.) In its Motion the Commission identified seven MURs, considered between 2004 and 

13 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 20 of 33 

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. (Id.) Plaintiff attempts (Resp. at 33-34 n.4) to distinguish 

those MURs, but the fact remains that they illustrate that an unsuccessful vote on whether to find 

reason to believe has not customarily been considered to terminate an FEC enforcement matter. 

The unrebutted evidence in the Commission’s Motion shows that votes on whether to 

close the administrative file are a textbook exercise of an agency’s discretion in enforcement 

proceedings. See Citizens for Resp. & Ethics in Washington, 892 F.3d at 441 (citing § 

701(a)(2)). Indeed, the very fact that the action is subject to a vote is evidence of the discretion 

inherent in the decision. Thus, whether to continue or conclude enforcement proceedings falls 

squarely within the “areas traditionally committed to agency discretion.” Dep’t of Com. v. New 

York, 139 S. Ct. 2551, 2568 (2019); see Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 

2011) (“[I]n cases that involve agency decisions not to take enforcement action, we begin with 

the presumption that the agency’s action is unreviewable.”); Ass’n of Irritated Residents v. EPA, 

494 F.3d 1027, 1030 (D.C. Cir. 2007) (“Excluded from this court’s review, however, are agency 

actions that are ‘committed to agency discretion by law.’”); id. (quoting Heckler v. Chaney, 470 

U.S. 821, 830 (1985)) (“Enforcement actions” generally fall within this reviewability exclusion 

because “‘a court would have no meaningful standard against which to judge the agency’s 

exercise of discretion’ in deciding how to enforce the statutory provisions”); Fieger v. Gonzales, 

Civ. No. 07-10533, 2007 WL 2351006, at *10 (E.D. Mich. Aug. 15, 2007), aff’d sub nom. 

Fieger v. U.S. Atty. Gen., 542 F.3d 1111 (6th Cir. 2008) (“It is well settled that the question of 

whether and when prosecution is to be instituted is within the discretion” of the authorized 

government officials) (quoting Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970)). 

14 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 21 of 33 

This principle as to agency discretion has resulted in the dismissal of APA claims made 

against the FEC by an administrative respondent. See Beam v. Gonzales, 548 F. Supp. 2d 596, 

612 (N.D. Ill. 2008). Rejecting those claims, the court explained that it “agree[d] that there is no 

discrete, non-discretionary action to compel in this case.” Id. 

In arguing that the vote to close the file is ministerial, plaintiff relies heavily (Resp. 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 Regarding “Deadlock Deference” at 2-3, 9-

16 (Mar. 2, 2022)6 (“Weintraub Statement”) (contending that further Commission action remains 

possible in matters until there are successful motions to close the file).7 

6 https://www.fec.gov/resources/cms-content/documents/2022-03-02-ELW-New-ModelsEn_Banc.pdf 

7 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. 

15 
 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 22 of 33 

Plaintiff’s claims fail for the additional reason that there is no “law” to apply in judging 

how the agency should exercise its discretion. Citizens for Resp. & Ethics in Wash., 892 F.3d at 

440. Plaintiff points to certain statutory requirements that constrain the FEC’s discretion, 

including 52 U.S.C. § 30109(a)(4)(B)(ii), which requires the FEC to “make public” a 

“determination” that “a person has not violated [the] Act[.]” (Resp. at 27.) However, no statute 

plaintiff cites states that such actions must occur prior to closure of an enforcement file, nor that 

an enforcement matter must be considered closed following a single failed reason-to-believe 

vote. Indeed, such an interpretation is contradicted by years of agency practice. Courts have 

rejected other, similar attempts to read deadlines and mandates into FECA. See Stockman v. 

FEC, 138 F.3d 144, 152 (5th Cir. 1998) (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.”). 

Finally, prudential concerns caution against plaintiff’s reading. 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 

16 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 23 of 33 

Commissioners to further consider matters and inhibit commissioners’ ability to develop their 

views and to reach consensus following deadlocked votes, as described above. 

2. Plaintiff Has Failed to Challenge a Discrete Agency Action 

In its Motion, 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.”8 (Mot. at 20 (citing Bark v. U.S. Forest Serv., 37 F. Supp. 3d 

41, 50 (D.D.C. 2014).) In particular, the Commission detailed the history of its enforcement 

proceedings, contrasted with the anecdotes offered by plaintiff to establish a general 

“concealment policy.” (See Mot. 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 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 

8 Contrary to plaintiff’s assertion, (Resp. at 25 n. 2,) the Commission did argue in its 

Motion that there was no “final agency action.” (Mot. at 1, 19, 20-23.) The Commission further 

argued that plaintiff failed to challenge a discrete agency action, an antecedent to an action being 

final. The Commission has not waived a challenge to finality. 

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)). 

17 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 24 of 33 

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 Response 

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 

statements of reasons.” (Resp. at 39 (citing 5 U.S.C. § 706(1); 28 U.S.C. § 1361).) This change 

is reflected in plaintiff’s discussion of the 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.) But plaintiff’s own lack of facts regarding the seven 

proceedings inevitably hinders its ability to show that it has challenged discrete agency actions.11 

To the extent it addresses the merits of the Commission’s Motion, plaintiff emphasizes 

that it has “‘point[ed] to a precise section of’ federal law ‘that clearly reins in the agency’s 

discretion’ by directing the FEC to timely disclose its voting records and statements of reasons 

following a dismissal, Xie, 780 F.3d at 408; Compl. ¶¶ 82–83 (citing 5 U.S.C. § 555(e); 52 

Plaintiff’s footnote discussing the lack of a need for an administrative record in this 

matter also appears to belie its “concealment policy” allegations, as it fails to identify any 

documents that reflect the enactment of a “policy,” and instead refers to only a portion of its 

case, stating that “the FEC has released the file in MUR 7516 ... which would be the 

administrative record.” (Resp. at 28 n.3.) 

18 

11 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 25 of 33 

U.S.C. § 301109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a)).” (Resp. at 22.) But as the FEC 

has shown, dismissal has not customarily occurred until a MUR file is closed by a vote, and 

when to do that is within the discretion of the agency. See supra Part III.B.1. 

In addition, plaintiff’s heavy reliance on Xie v. Kerry, 780 F.3d 405, 407 (D.C. Cir. 

2015), is misplaced. As plaintiff states, the court in that matter found that the plaintiff had 

properly identified discrete agency action that the Department of State was required to take, 

namely “a specific principle of temporal priority[.]” Id. at 408. The provision at issue was 

straightforward, mandating a simple rule for the agency to follow. See id. at 406 (“Immigrant 

visas . . . shall be issued to eligible immigrants in the order in which a petition in behalf of each 

such immigrant is filed”) (citing 8 U.S.C. § 1153(e)(1)). 

Plaintiff can point to no similar statutory mandate that applies here. The only statutory 

language it cites as requiring the disclosure of FEC MUR records provides that “[i]f 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). But the agency has for years conducted its proceedings in a way that 

construes this language and other relevant provisions to require the disclosure of certain records 

only after a matter has ended through a close-the-file vote. See supra, Part III.B.1; Mot. at 23-

25. This approach avoids the problems that would arise if every reason-to-believe vote had to be 

made public when it was taken, or if the first failed reason-to-believe vote ended a matter, 

preventing Commissioners from later reaching a different result. (Mot. at 24.) Furthermore, the 

agency’s practice is entitled to substantial deference, as it goes to the heart of the authority to 

manage and terminate its law enforcement proceedings. Dep’t of Com., 139 S. Ct. at 2568; 

Sierra Club, 648 F.3d at 855; Fieger, 2007 WL 2351006, at *10. Similar attempts to read 

19 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 26 of 33 

temporal deadlines into the language of FECA have been repeatedly rejected. See Stockman, 138 

F.3d at 152 (declining to order an investigation concluded and noting that FECA “provides a 

strong basis for scrupulously respecting the grant by Congress of ‘exclusive jurisdiction’ to the 

FEC”); Fieger, 2007 WL 2351006, at *9 (concluding that the statute “provides no time limit for 

completing any investigative action”). Plaintiff fails to show that section 30109(a)(4)(B)(ii) must 

be interpreted in a manner that is contrary to longstanding agency practice. See Orlov v. 

Howard, 523 F. Supp. 2d 30, 37 (D.D.C. 2007) (“‘[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.’”) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)). 

Because plaintiff has failed to identify a discrete agency action, and rather seeks court 

supervision of proceedings “committed to agency discretion by law[,]” plaintiff “has failed to 

state a claim under the APA, and therefore [its complaint] should be dismissed under Rule 

12(b)(6)[.]” Sierra Club, 648 F.3d at 854. 

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

REVIEW PROVISION IS THE EXCLUSIVE PROCEDURE FOR 

CHALLENGING THE FEC’S HANDLING OF ENFORCEMENT 

PROCEEDINGS 

As the FEC explained (Mot. at 25-31), plaintiff cannot bring APA or mandamus claims to 

challenge the FEC’s handling of administrative enforcement complaints. “Within constitutional 

bounds, Congress decides what cases the federal courts have jurisdiction to consider.” 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)). “District courts have jurisdiction over civil actions arising under the 

Constitution and federal laws, 28 U.S.C § 1331, but Congress may preclude that jurisdiction by 

establishing an alternative statutory scheme for administrative and judicial review.” Id. See also 

City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979) (“If ... there exists a special 

20 
 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 27 of 33 

statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be 

the exclusive means of obtaining judicial review in those cases to which it applies.”).

12 

To decide if a statutory review procedure is exclusive, courts “use the two-step 

framework set forth in Thunder Basin Coal Company v. Reich, 510 U.S. 200 [] (1994).” Nat’l 

Veterans Affs. Council v. Fed. Serv. Impasses Panel, Civ. No. 20-00837, 2021 WL 5936407, at 

*5 (D.D.C. Feb. 10, 2021). Under that case, “Congress intended that a litigant proceed 

exclusively through a statutory scheme ... when (i) such intent is ‘fairly discernible in the 

statutory scheme,’ and (ii) the litigant's claims are ‘of the type Congress intended to be reviewed 

within [the] statutory structure.’” Id. (quoting Jarkesy v. S.E.C., 803 F.3d 9, 15 (D.C. Cir. 

2015)). 

As the Commission showed in its Motion, FECA provides the exclusive mechanism for 

judicial review of any FEC dismissal of an administrative complaint and any claimed failure to 

act on such a complaint, precluding each of plaintiff’s claims pursuant to the APA and the 

mandamus statute. (Mot. at 25-31.) This is evidenced by the text of FECA, and the fact that 

every court that has considered the nature of the judicial-review procedures in 52 U.S.C. § 

30109(a)(8) has found that those FECA procedures are exclusive. (Id.) 

In response, plaintiff offers a reductive misreading of this argument. Plaintiff wrongly 

asserts that “the FEC makes the baffling claim that APA review is unavailable here because 

Heritage Action also cannot obtain review of the concealment policy under FECA.” (Resp. at 

25.) This claim misses the mark. Congress explicitly provided that only FEC administrative 

complainants may seek judicial review, and that they may do so only in two narrow 

As the FEC noted, this preclusion could be considered to result in a lack of subject 

matter jurisdiction or a failure to state a claim upon which relief can be granted. (Mot. at 26 n.8.) 

21 

12 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 28 of 33 

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 [a] 120-day 

period[.]” 52 U.S.C. § 30109(a)(8)(A). Federal courts have uniformly concluded that this 

judicial review mechanism is the exclusive one for challenges to the FEC’s handling of 

administrative complaints. (Mot. at 27-29.) Plaintiff’s APA and mandamus claims are thus 

precluded not “because” Heritage Action cannot obtain review under FECA (Resp. at 25), but 

because this was the intent of Congress, regardless of whether review would be available to 

plaintiff under FECA or not. See Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per curiam) 

(noting that section 30109(a)(8) is “as specific a mandate as one can imagine” and concluding 

that “the procedures it sets forth — procedures purposely designed to ensure fairness not only to 

complainants but also to respondents — must be followed before a court may intervene.”). 

Plaintiff’s other central response is that the precedent cited by the FEC is inapposite 

because, according to plaintiff, the cases on which the FEC relies address only claims by 

administrative complainants. (Id. at 26.) But one of the appellate opinions in the Commission’s 

Motion was brought by an administrative respondent. (Mot. at 28-29 (citing Stockman, 138 F.3d 

144).) In Stockman, a congressman sued to enjoin the FEC from further investigation of his 

campaign, alleging that the FEC unduly delayed in its investigation in violation of FECA and the 

APA. 138 F.3d at 146. After the district court dismissed the matter on the merits, the 

congressman appealed, and the Fifth Circuit held that FECA precluded judicial review of the 

delay claim. Id. at 152. The court observed that “when a statute provides a detailed mechanism 

for judicial consideration of particular issues at the behest of particular persons, judicial review 

of those issues at the behest of other persons may be found to be impliedly precluded.” Id. at 

154 (quoting Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984)). The court 

22 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 29 of 33 

determined that “[p]rudential considerations and the nature of FEC investigations also 

support[ed] [its] holding” as “allowing the person under investigation to bring suit in district 

court any time he felt aggrieved by the investigation could compromise the ability of the agency 

to investigate and enforce the Act.” Id. at 154-55 (citing FTC v. Standard Oil Co., 449 U.S. 232, 

242–43 (1980)) (“Judicial review of the averments in the Commission’s complaints should not 

be a means of turning prosecutor into defendant before adjudication concludes.”). 

Other courts have found that FECA precluded challenges not just by administrative 

complainants, but by administrative respondents as well. In one, the plaintiffs alleged, inter alia, 

that the FEC had failed to conduct an investigation of plaintiffs as required by FECA and 

therefore in violation of the APA and the mandamus statute. Fieger, 2007 WL 2351006, at *8.13 

The court rejected these claims, concluding that “Congress generally has deprived federal courts 

of jurisdiction to review the Commission's handling of its administrative complaints[,]” citing 

Stockman, 138 F.3d at 153, and Perot, 97 F.3d at 559. Id. at *10. After noting that FECA’s 

“two narrow exceptions” did not apply to the respondent’s claims, the court concluded that it 

“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.” Id. (citing Block, 467 U.S. at 349) (emphasis in original). The judge in a third case 

brought by a respondent reached the same conclusion. Beam, 548 F. Supp. 2d at 610-12. 

Plaintiff offers no reason why its claims in this case should be exempt from the 

unanimous judgment of the courts, in this Circuit and elsewhere, that FECA provides the 

exclusive avenue for judicial review of the Commission’s enforcement proceedings with regard 

Plaintiff there sought to dismiss a related investigation by the U.S. Department of 

Justice. 

23 

13 
 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 30 of 33 

to administrative complainants and respondents alike. See Stockman, 138 F.3d at 152; Fieger, 

2007 WL 2351006, at *8. Plaintiff’s APA and mandamus claims are precluded. 

Furthermore, while Congress is entitled to bar categories of claimants and claims from 

judicial review, it is not true that a respondent like plaintiff has “no other adequate remedy.” 

(Resp. at 25.) As the court noted in Stockman, “[h]ad [respondent] truly wanted to prod the FEC 

into completing its investigation more expeditiously, he could have filed a complaint with the 

FEC.” 138 F.3d at 156 (citing what is now 52 U.S.C. § 30109(a)(1)). “Consistent with the 

structure and intent of the FEC's ‘exclusive jurisdiction,’ this would have given the FEC the first 

opportunity to resolve Stockman’s claims before he sought judicial interference.” Id. (citing 

what is now 52 U.S.C. § 30107). “Then, if the FEC dismissed the administrative complaint or 

failed to act upon it, and Stockman was ‘aggrieved’ by the FEC's failure to act, he could file a 

petition in the federal court for the District of Columbia.” Id. (citing what is now 52 U.S.C. § 

30109(a)(8)). Moreover, plaintiff could have sought to raise its concerns as an intervening 

defendant in the section 30109(a)(8) delay case that the administrative complainant filed, but it 

failed to do so in a timely manner. Order at 2, CLC v. FEC, Civ. No. 21-0406 (TJK) (D.D.C.) 

(Docket No. 34) (“because Heritage Action’s motion [to intervene] is not timely, the Court will 

deny it”). And to any extent that plaintiff’s concerns about the FEC administrative process could 

affect the private suit that has been filed, plaintiff has already raised them there. Def’s Mem. of 

P. & A. in Supp. of Mot. to Dismiss, CLC v. Heritage Action, Civ. No. 22-1248 (Dkt. 20-1). 

Administrative respondents have multiple avenues available to vindicate their interests. 

Because Congress established FECA as the exclusive avenue for judicial review of FEC 

enforcement proceedings, plaintiff’s claims pursuant to other statutes should be dismissed. 

24 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 31 of 33 

IV. PLAINTIFF’S MANDAMUS CLAIM SHOULD BE DISMISSED BECAUSE 

PLAINTIFF LACKS STANDING AND CANNOT ESTABLISH A CLEAR AND 

INDISPUTABLE RIGHT TO THAT DRASTIC RELIEF 

Plaintiff offers a brief argument in support of its mandamus claim (Response at 37-38), 

but once again it fails to respond in a meaningful way to the Commission’s arguments. 

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 to act, and (3) that no adequate alternative remedy exists.” (Mot. at 31; Resp. 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.” (Mot. at 32-33.) In response, plaintiff repeats its assertion that the “sources of federal 

law” it cites “contain mandatory, non-discretionary duties” (Resp. 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 II.B.1. Far from waiving the argument, as plaintiff alleges 

(Resp. at 38), the FEC went on to note that “[d]isagreements between Commissioners about the 

termination of certain administrative proceedings demonstrate the disputability of the issues 

plaintiff raises.” (Mot. at 33.) Plaintiff discounts that point, but plaintiff itself relies heavily on 

Commissioner statements (e.g., Resp. 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 complaint should be dismissed in its entirety. 

25 
 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 32 of 33 

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 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Christopher H. Bell 

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

Attorney 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

August 12, 2022 (202) 694-1650 

26 
 

 

 

Case 1:22-cv-01422-CJN Document 23 Filed 08/12/22 Page 33 of 33 

CERTIFICATE OF SERVICE 

I hereby certify that on August 12, 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 

27