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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 1 of 18 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 23-5216 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BARBARA W. PALMER, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

MOTION FOR SUMMARY AFFIRMANCE 

Lisa J. Stevenson Shaina Ward 

Acting General Counsel Attorney 

lstevenson@fec.gov sward@fec.gov 

Kevin Deeley FEDERAL ELECTION COMMISSION 

Associate General Counsel 1050 First Street NE 

kdeeley@fec.gov Washington, DC 20463 

(202) 694-1650 

January 16, 2024 
 

 

 

 

 

 

 

 

 

USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 2 of 18 

TABLE OF CONTENTS 

INTRODUCTION ............................................................................................... 1 

ARGUMENT ....................................................................................................... 3 

I. PALMER LACKS ARTICLE III STANDING ............................... 3 

A. Summary Affirmance Is Appropriate ........................................ 3 

B. Palmer Fails to Show a Concrete and 

Particularized Injury .................................................................. 5 

II. THE FEC PUBLICLY DISCLOSED ALL NECESSARY 

DOCUMENTS RELATED TO PALMER’S 

ADMINISTRATIVE COMPLAINT ON ITS WEBSITE............... 7 

CONCLUSION.................................................................................................. 10 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 3 of 18 

TABLE OF AUTHORITIES 

Page(s) 

Cases 

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987) ......................................... 4 

Campaign Legal Ctr. v. FEC, 860 F. App’x 1 (D.C. Cir. 2021)................................ 6 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997)....................................... 5, 6 

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

993 F.3d 880 (“New Models”) (D.C. Cir. 2021).................................................... 5 

Dynegy Power Mktg., Inc. v. FERC, 

2004 WL 1920775 (D.C. Cir. Aug. 26, 2004)........................................................ 8 

Freedom Republicans, Inc. v. FEC, 13 F.3d 412 (D.C. Cir. 1994)........................... 4 

Hassan v. FEC, 2013 WL 1164506 (D.C. Cir. Mar 11, 2003).................................. 3 

Lujan v. Defenders of Wildlife, 504 U.S 555 (1992)................................. 1, 3, 4, 5, 6 

Palmer v. FEC, 22-2876 (D.D.C. Jan. 3, 2023)........................................................ 7 

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ........................................................ 4, 6 

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ................................................ 6 

Warth v. Seldin, 422 U.S. 490 (1975)........................................................................ 4 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)................................................ 6 

Wisc. Elec. Power Co. v. Dep’t of Energy, No. 99-1342, 

1999 WL 1125165 (D.C. Cir. Nov. 24, 1999) ....................................................... 8 

Statutes 

52 U.S.C. § 30109(a)(8)(A) ...................................................................................... 5 

52 U.S.C. § 30109(a)(8)(C) ...................................................................................... 5 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 4 of 18 

U.S. Const. Art. III .................................................................................................... 4 

Rules and Regulations 

U.S. District Ct. for the District of Columbia Local Civ. R. 7(n)(1)........................ 7 

FEC, Disclosure of Certain Documents in Enf’t and Other Matters, 

81 Fed. Reg. 50702 (Aug. 2, 2016) ........................................................................ 8 

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GLOSSARY 

Add. Addendum 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 
 

 

 

 

USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 6 of 18 

INTRODUCTION 

This Court should summarily affirm the district court’s order dismissing 

appellant Barbara Palmer’s complaint for lack of Article III standing. In its 

Motion, the Federal Election Commission (“FEC” or “Commission”) demonstrated 

that Palmer failed to establish any personalized injury arising from her allegation 

that grants distributed during the 2020 election by a non-profit corporation gave 

rise to violations of the Federal Election Campaign Act (“FECA”). Rather, Palmer 

merely asserted a general interest in seeing the agency enforce the law against 

others in the way that she desires, which is insufficient to establish a concrete and 

particularized injury in fact to confer standing. 

In her Response to the Commission’s Motion for Summary Affirmance 

(“Resp.”), Palmer makes two main arguments in an attempt to sidestep the 

concrete-injury requirement, both of which fail to rebut the Commission’s Motion. 

First, Palmer argues that the Commission does not “meet the standard” for 

summary affirmance, and that the standard set forth in Lujan v. Defenders of 

Wildlife, 504 U.S. 555 (1992), is somehow inapplicable. In addition to 

misapprehending Lujan, Palmer provides no argument that she has established an 

injury in fact necessary for constitutional standing. Instead, she points to claims 

made in her administrative complaint with the agency that she alleges should have 

been investigated. However, as the district court found, it is not enough for Palmer 
 

 

 

USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 7 of 18 

to allege violations of FECA that the Commission declined to pursue. Rather, 

Palmer must instead identify some concrete and particularized injury that is fairly 

traceable to the Commission and redressable by this Court. Palmer fails to 

establish any personalized injury. 

Second, Palmer asserts that the district court erred in dismissing her 

complaint because it purportedly did not have access to Palmer’s administrative 

record. Palmer claims that because the Commission moved to defer transmission 

of the certified administrative record to the district court prior to the court ruling on 

the Commission’s motion to dismiss, that the district court lacked the ability to 

dismiss her complaint. Palmer’s assertions are simply wrong. The necessary 

record documents were provided to Palmer, publicly available on the 

Commission’s website, and were indeed relied upon by the district court in its 

opinion. As such, Palmer’s claim that these documents were not available is 

without merit. Nor does Palmer point to any record evidence that she claims 

would have altered the district court’s determination that she lacked standing. 

Because Palmer cannot show any basis for Article III standing, there is no 

jurisdiction for Palmer’s claims. This Court should summarily affirm. 

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ARGUMENT 

I. PALMER LACKS ARTICLE III STANDING 

A. Summary Affirmance is Appropriate 

As an initial matter, Appellant misconstrues the standard for summary 

affirmance. Summary affirmance is appropriate where “[t]he merits of the parties’ 

positions are so clear as to warrant summary action.” Hassan v. FEC, No. 12-

5335, 2013 WL 1164506, at *1 (D.C. Cir. Mar 11, 2003) (per curiam). Where a 

“sound basis” exists for summary disposition, parties are “particularly encouraged 

to file dispositive motions,” since the “result can be a major savings of time, effort, 

and resources for the parties, counsel, and the Court.” D.C. Circuit Handbook of 

Practice and Internal Procedures 28 (Mar. 16, 2021). 

Appellant relatedly asserts, without support, that the Supreme Court’s 

seminal decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which 

outlines the requirements for Article III standing “is not applicable in this case” 

because “Lujan did not involve constitutional issues of due process or the 

fundamental right to vote.” (Resp. at 14, 15.) Although Appellant might take 

issue with the requirements of Article III standing that the Supreme Court defined 

in Lujan, Appellant provides no basis for her argument to disregard Lujan and it is 

nevertheless applicable here. Indeed, all plaintiffs must demonstrate that they have 

suffered an injury in fact that have caused an injury “in a personal and individual 

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way.” Lujan, 504 U.S. at 560 n.1. Standing “focuses on the complaining party to 

determine ‘whether the litigant is entitled to have the court decide the merits of the 

dispute or of particular issues.’” Am. Legal Found. v. FCC, 808 F.2d 84, 88 (D.C. 

Cir. 1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Thus, courts “may 

not entertain suits alleging generalized grievances that agencies have failed to 

adhere to the law.” Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 415 (D.C. 

Cir. 1994). The injury, in short, must be specific to the plaintiff. And as the 

district court explained, Palmer alleged no such personalized interest. In fact, 

Palmer “failed to plead any personal stake affected by, or a close relationship to 

any harm resulting from, the FEC dismissal” of her administrative complaint. 

(Add. 11.) 

Nor is it the case that, as Appellant states, the Commission has “disavowed 

federal courts’ jurisdiction to hear challenges to its pre-investigation dismissals of 

administrative complaints” and that courts can “arbitrarily dismiss cases seeking 

judicial review” of Commission decisions as a result of Lujan. (Resp. at 15, 16.) 

Constitutional standing requirements derive from the grant of jurisdiction in the 

United States Constitution to federal courts over “actual cases and controversies,” 

U.S. Const. art. III; Lujan, 504 U.S. at 560. The standing requirement “confine[s] 

the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 578 U.S. 330, 

338 (2016). Furthermore, Appellant, as “[t]he party invoking federal jurisdiction 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 10 of 18 

bears the burden of establishing these elements” of standing. Lujan, 504 U.S. at 

561. 

B. Palmer Fails to Show a Concrete and Particularized Injury 

Appellant’s response falls far short of establishing the essential elements of 

constitutional standing. Although Palmer does not dispute that she bears the 

burden of showing that she has standing, or that she must show “a discrete injury 

flowing from the alleged violation of FECA,” Common Cause v. FEC, 108 F.3d 

413, 419 (D.C. Cir. 1997) (internal quotation marks omitted), Palmer appears to 

erroneously focus on the citizen-suit provision in FECA as a mechanism to provide 

Article III standing. (Resp. at 18.).1 

Palmer filed her complaint in the district court under 52 U.S.C. § 

30109(a)(8)(A), (C) of FECA, which provides a cause of action for a “party 

aggrieved by an order of the Commission dismissing [an administrative] complaint 

filed by such a party,” for a determination that the Commission’s dismissal was 

Appellant also voices a concern with “tie-votes,” and the Commission’s use 

of “prosecutorial discretion,” in the Commission’s review of administrative 

complaints, referring to the D.C. Circuit’s opinion in Citizens for Resp. & Ethics in 

Wash. v. FEC, 993 F.3d 880 (“New Models”) (D.C. Cir. 2021). (Resp. at 19.) 

This is irrelevant. There was no “tie vote” or use of prosecutorial discretion in this 

matter. As explained by the district court, the Commission determined by a 

unanimous vote of 6-0 that there was no reason to believe a violation of FECA had 

occurred and dismissed Palmer’s administrative complaint. (Add. 9 (citing FEC, 

MUR 7946 Certification, htps://www.fec.gov/files/legal/murs/7946/7946_23.pdf).) 

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“contrary to law.” Id. However, as the district court determined, “FECA’s citizensuit provision ‘confers a right to sue upon parties who otherwise already have 

standing.’” (Add. 10) (quoting Common Cause, 108 F.3d at 419). Thus, “Article 

III standing requires a concrete injury even in the context of a statutory violation.” 

Spokeo, Inc., 578 U.S. at 341. And “[t]he Supreme Court has ruled repeatedly that 

the ‘deprivation of a procedural right’ alone, like an agency’s failure to process an 

administrative complaint, ‘is insufficient to create Article III standing.’” 

Campaign Legal Ctr. v. FEC, 860 F. App’x 1, 4 (D.C. Cir. 2021) (per curiam) 

(quoting Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). Instead, the 

plaintiff must identify “some concrete interest that is affected by the [procedural] 

deprivation[.]” Id. (alterations in original); see also Spokeo, Inc., 578 U.S. at 342 

(a plaintiff “cannot satisfy the demands of Article III by alleging a bare procedural 

violation.”); Lujan, 504 U.S. at 573 n.8 (rejecting claims of Article III standing 

grounded solely on “a ‘procedural right’ unconnected to the plaintiff’s own 

concrete harm”). Therefore, although Palmer argues that the Commission 

allegedly “failed to investigate” certain claims against respondents made in her 

administrative complaint (Resp. at 20), Palmer has no Article III right to seek “a 

legal conclusion that carries certain law enforcement consequences” for others 

absent a showing of a personalized injury. Wertheimer v. FEC, 268 F.3d 1070, 

1075 (D.C. Cir. 2001). See also Lujan, 504 U.S. at 556 (“This Court has 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 12 of 18 

consistently held that a plaintiff claiming only a generally available grievance 

about government, unconnected with a threatened concrete interest of his own, 

does not state an Article III case or controversy.”) 

II. THE FEC PUBLICLY DISCLOSED ALL NECESSARY 

DOCUMENTS RELATED TO PALMER’S ADMINISTRATIVE 

COMPLAINT ON ITS WEBSITE. 

Appellant’s next argument is that summary affirmance is inappropriate 

because “there was no record produced for the lower court to be able to reach the 

merits of Palmer’s claims,” and “[t]here is, therefore, no record for this Court to 

review the merits of Appellee’s arguments.” (Resp. at 1.) Here too, Appellant is 

mistaken. 

Concurrent with the Commission’s motion to dismiss, the Commission filed 

with the district court a motion to defer transmission of the administrative record 

and the filing of a certified list of the same. (See Federal Election Commission’s 

Motion to Defer Transmission of the Administrative Record and Filing of Certified 

List, Palmer v. FEC, 22-2876 (D.D.C. Jan. 3, 2023) (Docket No. 7).)2 As the 

Commission explained, the district court could appropriately determine the 

threshold issue of Palmer’s Article III standing based on her judicial complaint, the 

In cases seeking judicial review of administrative actions such as this, the 

district court’s Local Rules generally require an agency to file a certified list of the 

contents of the administrative record contemporaneously with the filing of a 

dispositive motion, “unless otherwise ordered by the Court.” U.S. Dist. Ct. for the 

Dist. of Columbia Local Civ. R. 7(n)(1). 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 13 of 18 

documents incorporated by reference, and publicly available documents on the 

FEC’s website upon which Palmer’s complaint necessarily relies. See, e.g., Wisc. 

Elec. Power Co. v. Dep’t of Energy, No. 99-1342, 1999 WL 1125165, at *1 (D.C. 

Cir. Nov. 24, 1999) (per curiam) (granting motion to defer filing the certified index 

pending resolution of motion to dismiss); see also Dynegy Power Mktg., Inc. v. 

FERC, Nos. 04-1034, et al., 2004 WL 1920775, at *1 (D.C. Cir. Aug. 26, 2004) 

(per curiam) (granting motion to defer filing the certified index after appellants 

moved to dismiss). The district court granted the Commission’s motion to dismiss, 

and therefore determined that production of the certified list of the administrative 

record was not necessary to resolve Palmer’s lack of standing. Thus, it denied the 

Commission’s motion to defer transmission of the administrative record as moot. 

(Add. 7.) 

Palmer claims that, “[t]he FEC did not provide any of the supporting 

documents for its decision to Appellant in September, 2022,” (Resp. at 3), 

however, the documents were provided to Appellant within 30 days of the closing 

of her administrative case, pursuant to the Commission’s standard disclosure 

policy. The Commission discloses documents determined to be “integral to [the 

FEC’s] decision making process.” FEC, Disclosure of Certain Documents in Enf’t 

and Other Matters, 81 Fed. Reg. 50702, 50703 (Aug. 2, 2016). Such documents 

include, inter alia, FEC General Counsel’s Reports that make recommendations 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 14 of 18 

regarding whether there is reason to believe or probable cause to believe violations 

occurred, memoranda and reports from the Office of General Counsel prepared in 

connection with a specific Matter Under Review and formally circulated for 

Commission consideration and deliberation, and statements of reasons issued by 

the Commissioners. Id. at 50702. All such documents related to Palmer’s 

enforcement matter were disclosed on the FEC’s website, and indeed the district 

court specifically referred to them in its opinion. (Add. 8-9.) See also Closed 

Matters Under Review, MUR 7946, https://www.fec.gov/data/legal/matter-underreview/7946/. 

Palmer separately refers to an “improvident” letter that the Commission 

mailed to the United States Election Assistance Commission (“EAC”), and she 

quibbles with the Commission “combin[ing]” her enforcement matter with another 

similar matter under review during the Commission’s review process. (See Resp. 

at 6, 7.) Both points are irrelevant and without merit. The notification letter that 

the Commission mailed to Palmer did explain that the EAC and its employees were 

not proper respondents under FECA, and that therefore the Commission made no 

findings related to them. (Resp. Ex. B, Doc. No. 2034655, at ECF 53 n.1.) And in 

any event, the letter that the Commission sent to the EAC noting that they were not 

proper respondents was separately provided to Appellant. Additionally, the fact 

that the Commission reviewed the allegations in Palmer’s administrative complaint 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 15 of 18 

along with allegations against some of the same respondents in a separate 

complaint, does not alter the Commission’s unanimous decision finding no reason 

to believe that a violation of FECA occurred. More to the point, Palmer does not 

assert how either of her concerns would have altered the district court’s standing 

determination, or otherwise demonstrate a concrete and particularized injury. 

Instead, Appellant appears to have wanted the district court to delve into the 

underlying factual claims she made before the agency in her administrative 

complaint. Yet, as explained above, this is not what the constitutional standing 

question addresses. 

CONCLUSION 

The Commission’s Motion demonstrated that Palmer fails to establish a 

concrete and particularized injury sufficient for article III standing, and Appellant’s 

response does not plausibly dispute this. For the foregoing reasons, this Court 

should summarily affirm the district court’s order granting the Commission’s 

motion to dismiss Palmer’s complaint. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

/s/ Shaina Ward 

Shaina Ward 

Attorney 

sward@fec.gov 

kdeeley@fec.gov FEDERAL ELECTION 

COMMISSION 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 16 of 18 

January 16, 2024 1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

11 
 

 

 

USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 17 of 18 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this 16th day of January, 2024, that: 

1. This document complies with the word limit of Fed. R. App. P. 

32(a)(7) because, excluding the parts of the document exempted by Fed. R. 

App. 32(f) and Circuit Rule 32(e), this document contains 2231 words. 

2. This document complies with the typeface requirements of Fed. 

R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) 

because this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2013 in a 14-point Times New Roman font. 

/s/ Shaina Ward 

Shaina Ward 

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USCA Case #23-5216 Document #2035778 Filed: 01/16/2024 Page 18 of 18 

CERTIFICATE OF SERVICE 

I hereby certify that on this 16th day of January 2024, I electronically filed 

the foregoing document with the Clerk of the United States Court of Appeals for 

the D.C. Circuit by using the Court’s CM/ECF system. All participants are 

registered CM/ECF users and will be served by the appellate CM/ECF system. 

/s/ Shaina Ward 

Shaina Ward 

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