UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 ) 

45COMMITTEE, INC., ) 

P.O. Box 710993 ) 

Herndon, VA 20171 ) Civ. No. 22-1749 (APM) 

 ) 

Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

1050 First Street, NE ) 

Washington, DC 20463 ) 

 ) 

 and ) 

 ) 

LISA J. STEVENSON, in her official ) 

capacity as Acting General Counsel of the ) 

Federal Election Commission, ) 

1050 First Street, NE ) 

Washington, DC 20463, ) MOTION TO DISMISS

 ) 

Defendants. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

Pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, the Federal 

Election Commission (“FEC”) hereby moves for an order dismissing all counts in plaintiff’s

complaint, including those that seek relief pursuant to the Administrative Procedure Act, 5 

U.S.C. §§ 702-706, and mandamus, 28 U.S.C. § 1361, for lack of jurisdiction and for failure to 

state a claim upon which relief can be granted. Plaintiff’s claims are precluded in their entirety 

because the judicial review provision of the Federal Election Campaign Act (“FECA”), 52 

U.S.C. § 30109(a)(8), is the exclusive means of challenging the FEC’s handling of 

administrative enforcement matters. Plaintiff also fails to state a claim upon which relief can be 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 1 of 52
2 

granted because it has not challenged a final, discrete agency action, and because the actions it 

does challenge are committed to agency discretion. Finally, plaintiff has so failed to show harm 

to a legally cognizable interest, or that its claims are redressable by a favorable decision from the 

Court, that it lacks standing to pursue its claims. A supporting memorandum and a proposed 

order accompany this motion.1

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 

/s/ Christopher H. Bell 

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

 Attorney

 chbell@fec.gov 

 

FEDERAL ELECTION COMMISSION 

 1050 First Street NE

 Washington, DC 20463 

August 22, 2022 (202) 694-1650 

1

 LCvR 7(n)(1), which generally requires an agency defending an administrative action to 

file a certified list of the contents of the administrative record contemporaneously with the filing 

of a dispositive motion, is not applicable here. For the reasons detailed in the FEC’s 

Memorandum of Points and Authorities in support of this Motion to Dismiss, plaintiff fails to 

challenge any reviewable final agency action, and its claims are precluded by FECA’s exclusive 

judicial review mechanism.

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 2 of 52
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 ) 

45COMMITTEE, INC., ) 

 ) 

Plaintiff, ) Civ. No. 22-1749 (APM) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 and ) 

 ) 

LISA J. STEVENSON, in her official ) MEMORANDUM IN SUPPORT OF

Capacity as Acting General Counsel, ) MOTION TO DISMISS

 ) 

 Defendants. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES 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 

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

 Attorney

 chbell@fec.gov 

 

FEDERAL ELECTION COMMISSION 

 1050 First Street NE

 Washington, DC 20463 

August 22, 2022 (202) 694-1650 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 3 of 52
i

TABLE OF CONTENTS

PAGE

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

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT 

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

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

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

B. This Action.........................................................................................................7

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

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

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

JUDICIAL REVIEW PROVISION IS THE EXCLUSIVE 

PROCEDURE FOR CHALLENGING THE FEC’S HANDLING 

OF ENFORCEMENT PROCEEDINGS .....................................................................11

III. PLAINTIFF ALSO FAILS TO STATE A CLAIM BECAUSE IT 

HAS NOT IDENTIFIED A FINAL, DISCRETE AGENCY ACTION, 

AND THE ACTIONS IT DOES CHALLENGE ARE COMMITTED

TO AGENCY DISCRETION BY LAW.....................................................................19

A. 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 ..............................................19

B. Plaintiff’s Broad “Concealment Policy” Allegations Do Not

Challenge Final Agency Action and Therefore Fail to State Claim

Upon Which Relief Can Be Granted ...............................................................24

IV. PLAINTIFF’S MANDAMUS CLAIM SHOULD BE DISMISSED 

BECAUSE PLAINTIFF CANNOT ESTABLISH A CLEAR AND 

INDISPUTABLE RIGHT TO THAT DRASTIC RELIEF.........................................31

V. PLAINTIFF LACKS STANDING TO PURSUE ITS CLAIMS ................................33

A. Plaintiff Lacks Standing to Pursue its Broad 

“Concealment Policy” Allegations on Behalf of Unnamed 

Third Parties.....................................................................................................33

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ii

B. Plaintiff Lacks Standing Even to Pursue Its Claims 

Regarding MUR 7486......................................................................................37

CONCLUSION........................................................................................................................39

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iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003)................................................ 11

Allen v. Wright, 468 U.S. 737 (1984) ..................................................................................... 34, 36

Am. Fed’n of Gov’t Emps. v. Trump, 929 F.3d 748 (D.C. Cir. 2019)......................................11-12

Am. Hosp. Ass'n v. Burwell, 812 F.3d 183 (D.C. Cir. 2016) .................................................. 31, 32

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987)............................................................. 35

Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................... 11, 24, 30, 32

Ass’n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007).................................... 18, 22

Bark v. U.S. Forest Serv., 37 F. Supp. 3d 41 (D.D.C. 2014).............................................25-26, 29

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004).....................................................................10-11

Beam v. Gonzales, 548 F. Supp. 2d 596 (N.D. Ill. 2008) ................................................. 17, 19, 22

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................... 11, 24, 30, 32

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................... 25, 27, 34, 36

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984)................................................... 13, 14, 16, 17

Bowen v. Massachusetts, 487 U.S. 879 (1988)............................................................................. 12

Bowles v. Russell, 551 U.S. 205 (2007)........................................................................................ 12

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

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

Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice,

846 F.3d 1235 (D.C. Cir. 2017)................................................................................................. 12

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

164 F. Supp. 3d 113 (D.D.C. 2015)............................................................................... 15, 16, 25

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 6 of 52
iv

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

363 F. Supp. 3d 33 (D.D.C. 2018)....................................................................................... 16, 19

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

892 F.3d 434 (D.C. Cir. 2018)....................................................................................... 20, 21, 23

Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Homeland Sec.,

387 F. Supp. 3d 33 (D.D.C. 2019)................................................................................. 26, 27, 29

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

243 F. Supp. 3d 91 (D.D.C. 2017)..................................................................................15-16, 19

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979)........................................................... 12

Coal River Energy, LLC v. Jewell, 751 F.3d 659 (D.C. Cir. 2014).............................................. 14

Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006)............................................... 25, 26, 30, 33

Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) .......................................................... 25, 30, 33

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) .............................................................. 38

Ctr. for Auto Safety v. NHTSA, 452 F.3d 798 (D.C. Cir. 2006).................................................... 25

Ctr. for Biological Diversity v. Brennan, 571 F.Supp.2d 1105 (N.D. Cal. 2007) ........................ 32

Del Monte Fresh Produce N.A., Inc. v. United States,

706 F. Supp. 2d 116 (D.D.C. 2010)............................................................................... 26, 31, 33

Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019)..................................................................... 21

Diamond v. Charles, 476 U.S. 54 (1986) ..................................................................................... 35

FEC v. Akins, 524 U.S. 11 (1998)................................................................................................. 39

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

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992)............................ 28

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

 2007 WL 2351006 (E.D. Mich. Aug. 15, 2007)................................................ 17, 19, 22, 24, 38

Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 2020).................................... 38, 39

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) ...................................................... 38

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 7 of 52
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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).................................... 34

FTC v. Standard Oil Co., 449 U.S. 232 (1980)............................................................................ 16

Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009)........................................................................ 14

Heckler v. Chaney, 470 U.S. 821 (1985).......................................................................... 18, 20, 22

In re Medicare Reimbursement Litig., 414 F.3d 7 (D.C. Cir. 2005)............................................. 31

Inst. for Wildlife Prot. v. Norton, 337 F. Supp. 2d 1223 (W.D. Wash. 2004).............................. 26

Int’l Bhd. of Teamsters v. TSA, 429 F.3d. 1130 (D.C. Cir. 2005)................................................. 34

Jarkesy v. S.E.C., 803 F.3d 9 (D.C. Cir. 2015)............................................................................. 12

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004)..................................................................... 10

Judicial Watch, Inc. v. FEC,

293 F. Supp. 2d 41 (D.D.C. 2003)........................................................................................36-37

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008).............................................................. 10

Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013)................................................................. 13

Kowalski v. Tesmer, 543 U.S. 125 (2004) .................................................................................... 35

Lillemoe v. USDA, Foreign Agriculture Service, 

Civ. No. 15-02047, 2020 WL 1984256 (D.D.C. Apr. 27, 2020)......................................... 27, 29

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)............................................................................ 34

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ..................................................................... 25

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013)........................................................................ 38, 39

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

Civ. No. 20-00837, 2021 WL 5936407 (D.D.C. Feb. 10, 2021)............................................... 12

Norton v. S. Utah Wilderness, 542 U.S. 55 (2004)......................................................18, 25-26, 31

Nyambal v. Mnuchin, 245 F. Supp. 3d 217 (D.D.C. 2017)........................................................... 32

Orlov v. Howard, 523 F. Supp. 2d 30 (D.D.C. 2007)................................................................... 18

Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009)..................................................................... 18

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 8 of 52
vi

Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970)............................................................................. 22

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)........................................................................... 15, 17

Power v. Barnhart, 292 F.3d 781 (D.C. Cir. 2002)................................................................ 31, 32

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) ............................................... 11

Rumber v. District of Columbia, 595 F.3d 1298 (D.C. Cir. 2010) ............................................... 34

Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006)...................................... 20

Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (D.C. Cir. 2005) ................................................. 11

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011).................................................... 13, 18, 21

Singleton v. Wulff, 428 U.S. 106 (1976) ....................................................................................... 35

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)..............................................15, 16-17, 19, 23, 38

Summers v. Earth Island Inst., 555 U.S. 488 (2009) .................................................................... 34

Thunder Basin Coal Company v. Reich, 510 U.S. 200................................................................. 12

United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011).................................................. 31, 32, 33

Warth v. Seldin, 422 U.S. 490 (1975)........................................................................................... 34

Statutes and Regulations

5 U.S.C. § 555............................................................................................................................. 8, 9

5 U.S.C. § 701............................................................................................................. 19, 20, 21, 24

5 U.S.C. § 702............................................................................................................................... 18

5 U.S.C. § 704............................................................................................................. 12, 14, 24, 27

5 U.S.C. § 706....................................................................................................................... 8, 9, 18

28 U.S.C § 1331............................................................................................................................ 12

28 U.S.C. § 1361....................................................................................................................... 9, 31

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 9 of 52
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52 U.S.C. §§ 30101-46 ................................................................................................................... 2

52 U.S.C. § 30106..................................................................................................... 2, 5, 15, 22, 28

52 U.S.C. § 30107........................................................................................................... 2, 5, 22, 28

52 U.S.C. § 30109..................................................................................................................... 2, 24

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

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

52 U.S.C. § 30109(a)(3).................................................................................................................. 4

52 U.S.C. § 30109(a)(4).............................................................................................. 4, 8, 9, 23, 28

52 U.S.C. § 30109(a)(6).............................................................................................................. 2, 4

52 U.S.C. § 30109(a)(8).........................................................................1, 5, 6, 8, 10, 13-16, 17, 19

52 U.S.C. § 30109(a)(12)................................................................................................................ 2

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

11 C.F.R. § 2.4................................................................................................................................ 4

11 C.F.R. § 111.9............................................................................................................ 8, 9, 19, 20

11 C.F.R. § 111.16.......................................................................................................................... 4

11 C.F.R. § 111.20...................................................................................................... 2, 8, 9, 19, 20

11 C.F.R. § 111.21.......................................................................................................................... 2

Miscellaneous

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

81 Fed. Reg. 50,702 (Aug. 2, 2016) ............................................................................................ 5

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

Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007).................... 3, 4

Fed. R. Civ. P. 5(b)(2)(E) ............................................................................................................. 41

Fed. R. Civ. P. 12(b)(1)........................................................................................................... 10, 13

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 10 of 52
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Fed. R. Civ. P. 12(b)(6)..................................................................................................... 11, 13, 18

Symposium on Campaign Finance Enforcement: A Comparative View,

11 J. L. & Pol. 1 (1995)............................................................................................................. 23

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 11 of 52
Plaintiff 45Committee, Inc. (“45Committee”) seeks certain records from a pending

administrative enforcement matter of the Federal Election Commission (“Commission” or 

“FEC”) in which plaintiff is involved, challenging what it claims is an FEC “policy” to conceal 

such records in violation of the Administrative Procedure Act (“APA”) and the mandamus 

statute. In addition, plaintiff seeks to enjoin the FEC’s alleged “policy,” which it claims has 

been applied in a vaguely defined group of seven other enforcement matters, and it seeks a 

sweeping and unprecedented injunction that would alter agency proceedings as they have 

functioned for decades. Plaintiff’s claims cannot succeed, and they should be dismissed. 

Plaintiff’s claims here are precluded because the judicial review provision of the Federal 

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

challenging the FEC’s handling of administrative enforcement matters. Courts have repeatedly 

dismissed comparable APA claims because only FECA review is available.

Plaintiff also fails to state a plausible claim for relief. The agency conduct plaintiff 

challenges, namely decisions as to when to terminate enforcement proceedings, is committed to 

agency discretion and is therefore not reviewable under the APA. Plaintiff’s allegations about

how such matters end are belied by the text of FECA, the agency’s longstanding practices, and 

the deference courts give agencies in the conduct of their law enforcement proceedings. In 

addition, plaintiff’s claims as to the alleged “concealment policy” fail because plaintiff does not 

challenge a final, discrete agency action, as required for APA review, and instead offers the type 

of generalized complaint about agency behavior that courts routinely dismiss. By failing to point 

to more than a small handful of a vaguely defined FEC enforcement matters, plaintiff falls far 

short of reaching the required threshold that it challenge a specific agency action.

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 12 of 52
2

Indeed, plaintiff falls so short in its effort to show that it has a right to the information it 

seeks prior to closure of the administrative file — even in the enforcement proceeding in which it 

is involved, let alone those involving only third parties — that plaintiff lacks standing to pursue 

its claims. 

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

BACKGROUND

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES

The FEC is an independent agency of the United States government with jurisdiction 

over the administration, interpretation, and civil enforcement of FECA, 52 U.S.C. §§ 30101-46. 

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

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

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

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

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

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

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

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

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

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

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

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

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

to notify anyone alleged to have committed such a violation, referred to as a respondent, and to 

provide such persons with an opportunity to demonstrate in writing that no action should be 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 13 of 52
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taken in the Matter Under Review (“MUR”). Id. OGC then prepares a report to the Commission 

known as a General Counsel’s Report. The Report analyzes the allegations in the complaint, 

applies the relevant law to the facts alleged, and sets forth OGC’s recommendations for 

Commission action. The first General Counsel’s Report in an enforcement MUR usually 

includes a recommendation that the Commission take actions regarding the alleged violations, 

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

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

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

respondent regarding its legal obligations. And FEC votes at this stage are frequently on whether 

to take one or more of these courses of action. See FEC, Statement of Policy Regarding 

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

12,545 (Mar. 16, 2007). On the other hand, other types of votes sometimes take place in advance 

of votes on whether there is a reason to believe a violation occurred or to dismiss. Other closed 

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

Senate).1

 

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

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

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

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

(Circulation Vote Procedure) (effective Dec. 1, 2016). Executive Sessions are meetings that are 

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

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

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

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

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 14 of 52
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closed to the public during which Commissioners consider pending enforcement matters and 

other items that must be kept confidential. See 11 C.F.R. § 2.4. During such meetings, the 

Commissioners may, inter alia, discuss OGC’s recommendations and vote on potential actions 

like those described above, including whether there is “reason to believe” that a FECA violation 

has occurred, 52 U.S.C. § 30109(a)(2), or whether to take some other action, as described above. 

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

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

its factual basis, and the agency then ordinarily investigates the allegations. Id. On the other 

hand, if at least four Commissioners determine that there is “no reason to believe” a violation 

occurred or that it is otherwise not appropriate to proceed with an investigation, they may vote to 

dismiss and to close the file in the matter. FEC, Statement of Policy Regarding Commission 

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. at 12,546. 

After an investigation, OGC may recommend that the Commission find that there is 

“probable cause” to believe FECA has been violated. 52 U.S.C. § 30109(a)(3). Respondents are 

entitled to file a responsive brief, id., and OGC prepares a report to the Commission with further 

recommendations, 11 C.F.R. § 111.16. If at least four members of the Commission vote to find 

probable cause to believe that a violation has occurred, the Commission must first attempt to 

resolve the matter by “informal methods of conference, conciliation, and persuasion, and to enter 

into a conciliation agreement” with the respondents. 52 U.S.C. § 30109(a)(4)(A)(i). If informal 

methods of conciliation fail, the Commission may, “upon an affirmative vote of 4 of its 

members,” file a de novo civil enforcement suit in federal district court. Id. § 30109(a)(6)(A). 

After the termination of enforcement matters, the Commission places on the public record 

categories of documents integral to its decision-making process, including certifications of 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 15 of 52
5

Commission votes. FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016).

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

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

to act on the complaint or that its dismissal of the complaint was contrary to law. Defense of 

such cases may only be approved through an affirmative vote of four members of the 

Commission. 52 U.S.C. §§ 30106(c), 30107(a)(6). If a court in a review action declares that a 

Commission dismissal or failure to act is “contrary to law,” the court can order the Commission 

to conform to that declaration within 30 days. Id. § 30109(a)(8)(C). If the Commission fails to 

conform to the declaration within 30 days, the complainant may obtain a private right of action 

against the administrative respondent for the alleged violations. Id.; FEC v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480, 488 (1985). 

II. FACTUAL BACKGROUND

A. Administrative Proceedings Related to this Action

On August 23, 2018, the Campaign Legal Center (“CLC”) filed an administrative 

complaint with the FEC against 45Committee alleging violations of FECA. The FEC designated 

the matter MUR 7486. (Compl. for Declaratory and Injunctive Relief (“Compl.”) ¶ 44 (Docket 

No. 1).) Votes occurred with regard to this matter on June 23, 2020 and December 2, 2021, but

there has been no successful vote to close the Commission’s file in the matter. 45Committee v. 

FEC, Civ. No. 22-502 (D.D.C. February 25, 2022) (Docket No. 18-1, ¶ 6).

On March 24, 2020, CLC sued the FEC, claiming that it had failed to act on CLC’s 

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

30109(a)(8)(A). CLC v. FEC, Civ. No. 20-809 (D.D.C. March 24, 2020) (Compl. for 

Declaratory and Injunctive Relief (Docket No. 1)). On November 8, 2021, after a vote on 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 16 of 52
6

whether to defend the agency in that case had failed to garner the required four votes, the court in 

CLC v. FEC entered default judgment against the FEC pursuant to 52 U.S.C. § 30109(a)(8)(C). 

Id. (Order (Docket No. 16)). On April 21, 2022, the court granted CLC’s motion for an order 

declaring that the FEC had failed to conform to the default judgment order. Id. (Order at 1

(Docket No. 32)). On April 22, 2022, CLC filed a private action against 45Committee alleging 

the FECA violations from its administrative complaint in MUR 7486. CLC v. 45Committee, Civ. 

No. 22-1115 (D.D.C. April 22, 2022) (Compl. for Declaratory and Injunctive Relief (Docket No. 

1)).

Meanwhile, 45Committee sought information regarding MUR 7486 from the FEC 

pursuant to the Freedom of Information Act (“FOIA”). On November 19, 2021, the Commission 

received a FOIA request from 45Committee seeking vote certifications and Commissioner 

statements of reasons regarding MUR 7486. 45Committee v. FEC, Civ. No. 22-502 (D.D.C. 

February 25, 2022) (Docket No. 18-1, ¶ 3). The Commission’s FOIA Service Center partially 

granted plaintiff’s FOIA request on January 5, 2022. Id. ¶ 7. The Service Center identified three

documents responsive to the request: a June 23, 2020 vote certification; a December 2, 2021 vote 

certification; and a December 9, 2021 Statement of Reasons of then-Vice Chairman Allen 

Dickerson. Id. ¶ 6. The Service Center released to plaintiff a substantially redacted copy of the 

June 23, 2020 vote certification, revealing only a vote regarding related litigation. Id. ¶ 9. The 

Statement of Reasons of then-Vice Chairman Dickerson was withheld in full. Id. The FOIA 

Service Center found the statement of reasons and portions of the requested certifications to be 

protected by the Commission’s deliberative process privilege and thus withheld them pursuant to 

FOIA Exemption 5. Id. ¶ 8. 45Committee administratively appealed the FOIA Service Center’s 

determination on January 7, 2022, and on March 8, 2022, the Commission denied the appeal. Id.

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 17 of 52
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¶ 10. Subsequently, the Commission approved the release of a mostly redacted copy of the 

December 2, 2021 vote certification that segregated for release the caption, some introductory 

material, and the attestation. Id. ¶ 7. 

On February 25, 2022, 45Committee filed a complaint with this Court alleging that the 

FEC violated FOIA by wrongfully withholding non-exempt documents regarding MUR 

7486. 45Committee v. FEC, Civ. No. 22-502 (D.D.C. February 25, 2022) (Docket No. 1). The 

FEC and 45Committee have both filed motions for summary judgment in that matter, and those 

motions are currently pending before that court. Id. (Docket Nos. 18, 20).

B. This Action

Plaintiff filed this suit principally asserting APA causes of action on June 17, 2022. 

(Compl. ¶ 1.) Plaintiff claims that it has been harmed by lack of access to the vote certifications 

and statements of reasons in MUR 7486. (Compl. ¶¶ 3-11.) Alongside that relatively confined

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

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

statements of reasons from the respective subjects in otherwise terminated enforcement 

proceedings in violation of the APA. (Compl. ¶¶ 1-3.) Plaintiff alleges that this “concealment 

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

indeterminate period of time. (Compl. ¶¶ 3, 7, 32, 39.)2

 

2 Plaintiff claims that the alleged “concealment policy” has affected at least seven other 

administrative “respondents[.]” (Compl. ¶ 3, 7.) Plaintiff presumably draws this figure from a 

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

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

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

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

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

ed.pdf (“Statement Regarding Concluded Matters”), at 1.

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In support of this theory, 45Committee contends that whenever a motion to find reason to 

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

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

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

the MUR file, and to disclose the voting records and statement of reasons, violates the 

Commission’s legal obligations. (See Compl. ¶¶ 36-38.) Plaintiff alleges that, because FECA 

allows complainants to sue the Commission if it “fail[s] . . . to act” on an administrative 

complaint and then to sue the respondent directly if the FEC still fails to act, 52 U.S.C. § 

30109(a)(8)(A), (C), by failing to close the file the Commission “has left the public and courts

with the false impression that it has not taken action” on the administrative complaint, “thus 

deliberately subjecting the Commission and 45Committee to direct civil lawsuits on false 

pretenses.” (Compl. ¶ 7 (alterations in original).) 45Committee notes that it is a defendant in 

such a private right of action stemming from MUR 7486. (Compl. ¶ 3.) 

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

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

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

withhold information from 45Committee regarding MUR 7486, and therefore to act “[c]ontrary 

to law,” in violation of 5 U.S.C. § 706(2)(A). (Compl. ¶¶ 83-92 (citing 5 U.S.C. § 555(e); 52 

U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a)).) Plaintiff seeks to have the Court 

“hold unlawful and set aside Defendants’ concealment policy[.]” (Compl. ¶ 92.)

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

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

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 19 of 52
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of the Commission’s alleged terminating action regarding MUR 7486 and failing to provide 

plaintiff with voting records. (Compl. ¶¶ 93-98 (citing 11 C.F.R. §§ 111.9(b), 111.20(a)).)

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

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

adopting a new concealment policy” by “treating MUR 7486 differently than similarly situated 

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

to find reason to believe a violation occurred[.]” (Compl. ¶¶ 99-104.) On this basis plaintiff 

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

(Compl. ¶ 104.)

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

notice of the Commission’s alleged terminating action in MUR 7486 and release of its voting 

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

(Compl. ¶¶ 105-13 (citing 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a)).)

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

Commission to “comply with the law” by notifying 45Committee of the alleged termination of

action in MUR 7486 and by releasing the voting records and any statements of reasons in that 

MUR. (Compl. ¶¶ 114-19.) 

In all Counts, plaintiff requests that the Court order defendants to terminate MUR 7486

and release the voting records and statements of reasons to plaintiff. (Compl. ¶¶ 92, 98, 104, 

113, 119.) Plaintiff’s Prayer for Relief requests further sweeping judicial intervention. It seeks

not only “[a]n order compelling Defendants to issue the required notification to 45Committee of 

the Commission’s terminating action in MUR 7486 and publicly release the voting records and 

any statement of reasons,” but also an “injunction requiring Defendants to issue the required 

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

records and statements of reasons in any enforcement matter after the Commission fails to garner 

four votes to initiate an enforcement action based on the complaint.” (Compl. Prayer for Relief, 

paragraphs b, c, d.)

ARGUMENT

Plaintiff’s complaint should be dismissed for lack of jurisdiction and failure to state a 

claim upon which relief can be granted. FECA’s judicial review provision, 52 U.S.C. §

30109(a)(8), is the only means to challenge the agency’s handling of administrative enforcement 

matters. Plaintiff’s sweeping challenge to the agency’s handling of its enforcement proceedings

also fails to state a claim under the APA. Such proceedings are legally committed to the 

agency’s sound discretion, and plaintiff’s challenge to the alleged “concealment policy” falls far 

short of the basic requirement that APA challenges identify a final, discrete agency action, as 

opposed to a generalized complaint about agency behavior. Indeed, plaintiff falls so short of

showing a legally cognizable interest in the information it seeks with regard to MUR 7486, not to 

mention the other matters it describes, that it has failed to establish even Article III standing. 

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over 

the subject matter” of claims asserted in the Complaint. The party claiming subject matter 

jurisdiction bears the burden of demonstrating that jurisdiction exists. Khadr v. United States,

529 F.3d 1112, 1115 (D.C. Cir. 2008). When reviewing a motion to dismiss for lack of subject 

matter jurisdiction, each court has “‘an affirmative obligation to insure that it is acting within the 

scope of its jurisdictional authority.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004)

(citation omitted). In evaluating such motions, courts review the complaint liberally and grant 

plaintiffs the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 21 of 52
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370 F.3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over a claim, the 

court may consider materials outside the pleadings. Settles v. U.S. Parole Comm’n, 

429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter 

jurisdiction on a federal court because subject matter jurisdiction is both a statutory requirement 

and a constitutional requirement under Article III. Akinseye v. District of Columbia, 

339 F.3d 970, 971 (D.C. Cir. 2003). 

Dismissal of a complaint is also appropriate under Rule 12(b)(6) where, accepting the 

factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s 

favor, the complaint fails as a matter of law to state a claim on which relief can be granted. Fed. 

R. Civ. P. 12(b)(6); Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012) (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to “state a claim to relief that is plausible on its face. A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 

(citing Twombly, 550 U.S. at 570). A claim must be dismissed “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 

558. 

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

REVIEW PROVISION IS THE EXCLUSIVE PROCEDURE FOR 

CHALLENGING THE FEC’S HANDLING OF ENFORCEMENT 

PROCEEDINGS

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

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 22 of 52
12

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

laws of the United States, 28 U.S.C § 1331, but Congress may preclude district court 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 

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.”). 

To decide whether 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 

*27 (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., at *27-28 (quoting Jarkesy v. S.E.C., 803 F.3d 9, 15 (D.C. 

Cir. 2015)).

At the same time, judicial review of agency action under the APA is available only where 

“made reviewable by statute” and where there is “no other adequate remedy” for final agency 

action. 5 U.S.C. § 704. “Congress did not intend the general grant of review in the APA to 

duplicate existing procedures for review of agency action.” Bowen v. Massachusetts, 487 U.S. 

879, 903 (1988). Thus, the APA “does not provide additional judicial remedies in situations 

where the Congress has provided special and adequate review procedures.” Id. (internal 

quotation marks omitted); see Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice, 846 F.3d 

1235, 1244-45 (D.C. Cir. 2017) (same). To determine the proper basis for judicial review, courts 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 23 of 52
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examine the relevant statute’s language, structure, and legislative history. See Block v. Cmty. 

Nutrition Inst., 467 U.S. 340, 349 (1984) (explaining that a “detailed mechanism for judicial 

consideration of particular issues at the behest of particular persons” may demonstrate that other 

forms of judicial review are “impliedly precluded”); Klayman v. Obama, 957 F. Supp. 2d 1, 20 

(D.D.C. 2013) (concluding that the Foreign Intelligence Surveillance Act precluded plaintiffs’ 

claim for judicial review pursuant to the APA).

Plaintiff’s complaint challenges the Commission’s handling of MUR 7486, specifically 

alleging that the agency failed to dismiss the matter following a failed vote to find reason to 

believe a violation occurred and failed to provide plaintiff with related voting records. (See

Compl. ¶ 10.) However, no separate APA or mandamus claim exists to pursue those challenges 

because FECA provides an adequate and exclusive judicial review mechanism. Even in cases 

such as this one, where FECA itself does not permit review of plaintiff’s claims because the suit 

is not authorized by FECA’s judicial review provision, FECA still precludes plaintiffs’ APA and 

mandamus claims, which should therefore be dismissed pursuant to Rule 12(b)(6).

3

In section 30109(a)(8), Congress delineated the scope of judicial review available in an 

action challenging alleged FEC impropriety in handling an administrative complaint. Congress 

explicitly provided that only FEC administrative complainants may seek judicial review and that 

they may do so only in two narrow circumstances. FECA states that when a complainant is 

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

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

3 Plaintiff’s APA claim could alternatively be dismissed for a lack of subject matter 

jurisdiction pursuant to Rule 12(b)(1) rather than Rule 12(b)(6) on this ground, as courts have 

“not always been consistent in maintaining the[] distinctions” between the two rules. Sierra 

Club v. Jackson, 648 F.3d 848, 853 (D.C. Cir. 2011) (internal quotation marks omitted).

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 24 of 52
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complaint is filed [the complainant] may file a petition with the United States District Court for 

the District of Columbia.” 52 U.S.C. § 30109(a)(8)(A). As noted, this review is available only 

as to “a complaint filed by such party,” i.e. the administrative complainant. Id.

FECA provides the exclusive mechanism for judicial review of allegations that the 

Commission unlawfully failed to act on a complaint or that its dismissal of a complaint was 

contrary to law. The statute specifies that (a) the statutory cause of action is available only to a 

complainant (b) whose complaint was dismissed or who alleges a failure to act; (c) any petition 

for judicial review must be filed in the United States District Court for the District of Columbia; 

(d) the available relief is a judicial declaration that the failure to act or dismissal of the complaint 

is contrary to law and an order “direct[ing] the Commission to conform with such declaration”; 

and (e) the safety valve in the event the agency fails to conform with such an order is a private 

right of action by the complainant. 52 U.S.C. § 30109(a)(8)(C). 

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

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

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

forms of judicial review, including review under the APA. See Block, 467 U.S. at 349. Where, 

as here, Congress has “fashion[ed] . . . an explicit provision for judicial review” of certain 

agency action or failure to take action and has “limit[ed] the time to raise such a challenge,” the 

Court of Appeals has found that “it is ‘fairly discernible’ that Congress intended that particular 

review provision to be exclusive.” Coal River Energy, LLC v. Jewell, 751 F.3d 659, 664 (D.C. 

Cir. 2014); see Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009). In addition, FOIA 

represents a further avenue for interested parties to seek the disclosure of agency records, and 

one that plaintiff here has in fact availed itself of to seek the very enforcement records at issue. 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 25 of 52
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See 45Committee v. FEC, Civ. No. 22-502 (D.D.C. February 25, 2022) (Docket No. 1). Thus, 

while FECA is clearly an “adequate remedy” for judicial review of the handling of FEC 

enforcement proceedings, it is not plaintiff’s exclusive remedy, and plaintiff has not shown that 

these remedies are inadequate.

FECA’s overall structure and legislative history further confirm Congress’s intent to limit 

the scope of judicial review of matters within the FEC’s area of responsibility. FECA grants the 

Commission “exclusive jurisdiction with respect to the civil enforcement” of the Act, 52 U.S.C. 

§ 30106(b)(1), and it establishes a specific system of judicial review that “funnels all challenges 

to the FEC’s handling of complaints through the U.S. District Court for the District of 

Columbia,” Citizens for Resp. & Ethics in Wash. v. FEC, 164 F. Supp. 3d 113, 119 (D.D.C. 

2015) (“CREW 2015”) (citing 52 U.S.C. § 30109(a)(8)(A)). “The legislative history of [FECA] 

confirms that ‘[t]he delicately balanced scheme of procedures and remedies set out in the Act is 

intended to be the exclusive means for vindicating the rights and declaring the duties stated 

therein.’” Stockman v. FEC, 138 F.3d 144, 154 (5th Cir. 1998) (alteration in original) (quoting 

120 Cong. Rec. 35,314 (1974) (remarks of Rep. Hayes, Conference Committee Chairman)). 

Every court that has considered the nature of the judicial-review procedures in section 

30109(a)(8) has found that those FECA procedures are exclusive, including with respect to APA 

claims challenging FEC administrative proceedings. In fact, the D.C. Circuit has confirmed that 

section 30109(a)(8) is “as specific a mandate as one can imagine” and accordingly concluded 

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.” Perot 

v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per curiam). More recently, this District Court has 

repeatedly held that the review procedure in section 30109(a)(8) precludes an APA claim for 

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16

dismissal of an administrative complaint. Citizens for Responsibility & Ethics in Wash. v. FEC, 

243 F. Supp. 3d 91, 104 (D.D.C. 2017) (FECA provides an adequate remedy so there is no 

parallel claim for relief under the APA); CREW 2015, 164 F. Supp. 3d at 120 (“This [section 

30109(a)(8) judicial review mechanism] precludes review of FEC enforcement decisions under 

the APA.”); Citizens for Resp. & Ethics in Wash. v. FEC, 363 F. Supp. 3d 33, 44 (D.D.C. 2018)

(“for the same reasons that judicial review of the challenged enforcement actions is precluded by 

FECA, it is precluded under APA: because the statute expressly limits review to the two 

circumstances identified in 52 U.S.C. § 30109(a)(8)(A)”).

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

administrative enforcement complaints extends not just to claims by administrative 

complainants, but also to claims by administrative respondents such as plaintiff. 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 

first noted the “substantial evidence that Congress set forth the exclusive means for judicial 

review under [FECA]” in section 30109(a)(8). Id. at 156. The court then 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, 467 U.S. at 349). The court 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 

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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.”).

In another case brought by administrative respondents, Fieger v. Gonzales, the plaintiffs 

alleged, inter alia, that the FEC had failed to conduct an investigation of plaintiffs as required by 

FECA and therefore the agency was in violation of the APA and the mandamus statute. Civ. No. 

07-10533, 2007 WL 2351006, at *8 (E.D. Mich. Aug. 15, 2007), aff’d sub nom. Fieger v. U.S. 

Atty. Gen., 542 F.3d 1111 (6th Cir. 2008).

4

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

Under this precedent, plaintiff’s claims here are clearly precluded. 52 U.S.C. 

§ 30109(a)(8) permits only claims by administrative complainants. 45Committee is indisputably 

an administrative respondent with respect to MUR 7486. (Compl. ¶ 44.) Congress therefore 

intended to bar its claims from judicial review. See Fieger, 2007 WL 2351006, at *10 (“[T]he 

Court must assume Congress intended to deny anyone other than an administrative complainant 

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

Justice.

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(including administrative respondents, such as Plaintiffs) the right to petition for judicial 

review.”) (citing Block, 467 U.S. at 349). 

The APA does not provide an avenue for plaintiff to circumvent the clear intent of 

Congress to make FECA’s judicial review provisions exclusive to certain administrative 

complainants. The APA provides that “[a] person suffering legal wrong because of agency 

action, or adversely affected or aggrieved by agency action within the meaning of a relevant 

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Excluded from this court’s 

review, however, are agency actions that are ‘committed to agency discretion by law.’” Ass’n of 

Irritated Residents v. EPA, 494 F.3d 1027, 1030 (D.C. Cir. 2007). “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.” Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). In fact, 

“‘a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a 

discrete agency action that it is required to take.’” Orlov v. Howard, 523 F. Supp. 2d 30, 37 

(D.D.C. 2007) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)). “[A]

complaint seeking review of agency action ‘committed to agency discretion by law’ has failed to 

state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6).” Sierra 

Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (internal citation omitted); id. at 855 (“[I]n 

cases that involve agency decisions not to take enforcement action, we begin with the 

presumption that the agency’s action is unreviewable.”); see also Oryszak v. Sullivan, 576 F.3d 

522, 526 (D.C. Cir. 2009) (holding that the APA provides no cause of action to review an 

agency’s revocation of an employee’s security clearance where that decision is “committed to 

agency discretion by law”). 

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At issue here is the Commission’s alleged failure to terminate MUR 7486 (and a handful 

of additional administrative proceedings) and disclose the records in those proceedings following 

a failed reason-to-believe or probable-cause-to-believe vote. Plaintiff does not dispute that any 

Commission obligation to disclose records from an enforcement proceeding comes into play only 

when the Commission “terminates its proceedings[.]” (Compl. ¶ 26 (citing 11 C.F.R. §§ 

111.9(b); 111.20(a)).) Yet while plaintiff clearly objects to the MUR 7486 file not being closed

at a particular time, the decision to close an administrative matter falls squarely within the 

agency’s discretion. See infra, Part III.A. 

Plaintiff’s claims regarding the FEC’s handling of these enforcement matters are not 

meaningfully distinguishable from the many instances in which courts have found that APA 

claims challenging such proceedings were precluded by FECA, and plaintiff has provided no 

reason why this Court should buck this precedent. See, e.g., Citizens for Resp. & Ethics in 

Wash., 243 F. Supp. 3d at 104 (complainants); CREW 2015 (complainant); Citizens for Resp. & 

Ethics in Wash., 363 F. Supp. 3d at 44 (complainant); Stockman, 138 F.3d at 146 (respondent);

Fieger, 2007 WL 2351006, at *8 (respondent); Beam, 548 F. Supp. 2d at 610-12 (respondent).

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

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

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

limitations Congress established with FECA. And because plaintiff’s complaint relies entirely

on the APA and the mandamus statutes, it fails to state a claim and should be dismissed.

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 30 of 52
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III. PLAINTIFF ALSO FAILS TO STATE A CLAIM BECAUSE IT HAS NOT

IDENTIFIED A FINAL, DISCRETE AGENCY ACTION, AND THE ACTIONS IT 

DOES CHALLENGE ARE COMMITTED TO AGENCY DISCRETION BY LAW 

A. 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, 

“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 Wash. 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 Sec’y 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. at 830).

Here, while plaintiff is ultimately seeking “information,” it is in effect challenging the 

Commission’s failure to consider enforcement proceedings terminated following any vote that 

fails to find reason to believe a FECA violation occurred. Plaintiff does not dispute that any 

Commission obligation to disclose the record in an enforcement proceeding follows only when 

the Commission “terminates its proceedings[.]” (Compl. ¶ 26 (citing 11 C.F.R. §§ 111.9(b); 

111.20(a)).) And 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

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(“Commissioners Walther, Broussard, and Weintraub have refused to vote to administratively 

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

Critically, the history of the agency’s enforcement process belies plaintiff’s claim that the 

vote to close the administrative file is “a purely ministerial and legally insignificant act[.]” 

(Compl. ¶ 30.) In fact, the Commission has often held one reason-to-believe or probable-causeto-believe vote that does not pass, only to determine in a later vote that there was in fact reason 

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

7357, and 7382 (Cambridge Analytica LLC, et al.);5 MUR 6623 (Scalise for Congress, et al.);6

MUR 5754 (MoveOn PAC, et al.).7 While plaintiff cites five individual MURs in which the 

Commission did vote to close the file following a failed reason-to-believe vote, (Compl. ¶ 30,) 

these examples only serve to underline the fact that Commissioners view each such vote 

differently, and they exercise their discretion in light of the facts in each case. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The agency’s longstanding practices demonstrate 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 Wash., 892 F.3d at 441 (citing 5 U.S.C. § 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, as noted supra p. 20, 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, 648 F.3d at 855 (“[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, 494 F.3d at 1030 (“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. at 830) (“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, 2007 WL 2351006, at *10 (“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)). And as 

explained above, supra pp. 15-18, this principle as to agency discretion has resulted in the 

dismissal of APA claims an administrative respondent made against the FEC. See Beam v. 

Gonzales, 548 F. Supp. 2d 596, 612 (N.D. Ill. 2008). Rejecting those claims, the court in Beam

explained that it “agree[d] that there is no discrete, non-discretionary action to compel in this 

case.” Id.

Recent public statements by FEC Commissioners demonstrate that the legal significance 

of a failed reason-to-believe vote in a MUR is a contested one, undermining plaintiff’s claim that 

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23

the Commissioners’ duty to close the file in such cases is “ministerial and non-discretionary[.]” 

(Compl. ¶ 10.) In its Complaint plaintiff refers to the recent statement by three FEC 

Commissioners arguing that certain unidentified MURs should be considered closed. (Compl. 

¶ 35 (referencing Statement Regarding Concluded Matters).) However, the votes of three 

Commissioners are insufficient to adopt FEC policy, which takes four affirmative votes. 52 

U.S.C. §§ 30106(c), 30107(a)(8). It has also 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)8 (“Weintraub Statement”) 

(contending that further Commission action remains possible in matters until there are successful 

motions to close the file).

9

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

how the agency should exercise its discretion here. Citizens for Resp. & Ethics in Wash., 892 

F.3d at 440. Plaintiff points to certain statutory requirements that constrain the FEC’s discretion, 

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

9

 An exchange from decades ago demonstrates a previous understanding that it would be 

possible for Commissioners to have a series of votes in a MUR without a successful vote to close 

the file. In 1995, at an American Bar Association symposium, it was noted that a “previous 

General Counsel of the Commission [had been] asked the question on a case that looked like it 

was heading for a 3-3 split.” Symposium on Campaign Finance Enforcement: A Comparative 

View, 11 J. L. & Pol. 1, 12 (1995) (quoting then-FEC General Counsel Lawrence M. Noble). 

The previous General Counsel had been asked, “[w]hat happens if the Commissioners split 3-3, 

and just turn to you and say we’re not going to close the file?” Id. The General Counsel in 1995 

explained that in that eventuality he “would just send the case back up every week until 

something happens.” Id. He further noted that (as of that time) “in practice what happens after a 

3-3 vote is that the Commission then votes unanimously to close the file and make the matter 

public.” Id. 

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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[.]” (Compl. ¶ 26.) 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, 138 

F.3d at 152 (noting that FECA “does not create a deadline in which the FEC must act or create a 

private cause of action to enforce this provision.”); Fieger, 2007 WL 2351006, at *9 (“The Court 

finds that nothing in section [30109] or any other provision of the Act imposes any deadline for 

the Commission to take particular investigatory actions.”).

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 

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

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

Because the closure of the administrative file is subject to the discretion of the 

Commission and the vote of individual Commissioners, the challenged “agency action is 

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25

committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Plaintiff has therefore failed to 

“state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (citing Twombly, 

550 U.S. at 570).

B. Plaintiff’s Broad “Concealment Policy” Allegations Do Not Challenge Final Agency 

Action and Therefore Fail to State a Claim Upon Which Relief Can Be Granted

Plaintiff has identified no “policy” that can be considered final agency action subject to 

APA review, and instead it merely points to the handling of a small and vaguely defined group of 

unidentified FEC enforcement matters. To be reviewable, a challenged agency action must 

“either (1) reflect ‘final agency action,’ 5 U.S.C. § 704, or (2) ‘constitute a de facto rule or 

binding norm that could not properly be promulgated absent the notice-and-comment rulemaking 

required by § 553 of the APA.’”10 Ctr. for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir.

2006). An agency action is final if it is both “the consummation of the agency’s decisionmaking 

process” and a decision by which “rights or obligations have been determined” or from which 

“legal consequences will flow[.]” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Therefore, 

the APA authorizes challenges to “discrete” federal agency action; it does not contemplate 

entangling the courts in managing the day-to-day business of the agencies. Norton v. S. Utah 

Wilderness All., 542 U.S. 55, 64 (2004); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 

891 (1990) (stating that, under the APA, a plaintiff “must direct its attack against some particular 

‘agency action’ that causes it harm”).

10 Plaintiff does not challenge the alleged “concealment policy” as a de facto regulation 

issued in violation of APA’s notice-and-comment requirements, and in any event such a 

challenge would be meritless. See CREW 2015, 164 F. Supp. 3d at 118 (finding that even if a 

repeated interpretation by several FEC Commissioners in MURs were assumed to have become a 

broad policy of the agency, new principles announced through adjudication are not treated as 

regulations for purposes of judicial review).

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Plaintiff cannot meet these standards. It clearly objects to what it perceives to be a 

practice in the handling of certain FEC enforcement matters, but the court’s jurisdiction “does 

not extend to reviewing generalized complaints about agency behavior.” Bark v. U.S. Forest 

Serv., 37 F. Supp. 3d 41, 50 (D.D.C. 2014) (citing Cobell v. Kempthorne, 455 F.3d 301, 307 

(D.C. Cir. 2006) (rejecting challenge to “a generalized, unwritten administrative ‘policy’”). This 

is because even “an on-going program or policy is not, in itself, a ‘final agency action’ under the 

APA.” Id. (quoting Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001)). As a result, the 

APA requires plaintiffs to challenge a “discrete agency action” rather than launching “a broad 

programmatic attack” on an agency’s compliance with a statutory scheme. Citizens for Resp. & 

Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 387 F. Supp. 3d 33, 49 (D.D.C. 2019) (citing 

Norton v. S. Utah Wilderness All., 542 U.S. at 64). See also Del Monte Fresh Produce N.A., Inc. 

v. United States, 706 F. Supp. 2d 116, 119 (D.D.C. 2010) (granting motion to dismiss where 

importer’s claim that FDA “pattern and practice” of delay in produce inspections was not 

justiciable under the APA); Inst. for Wildlife Prot. v. Norton, 337 F. Supp. 2d 1223, 1226-27

(W.D. Wash. 2004) (dismissing plaintiffs’ claims that an agency engaged in a pattern and 

practice of delay in responding to citizen petitions under the Endangered Species Act, in 

violation of the APA).

Courts have rejected claims similar to plaintiff’s claims here. For example, in Bark v. 

United States Forest Service, plaintiffs challenged the U.S. Forest Service’s issuance of several 

special use permits, along with its overall “policy and practice” of issuing such permits, on the 

grounds that the permits allowed concessioners to charge unlawful fees without proper review.

37 F. Supp. 3d at 49. The court granted summary judgment to the Forest Service, finding that 

the plaintiffs had failed to articulate a justiciable final agency action. Id. at 50. Plaintiffs had 

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pointed to “no written rules, orders, or even guidance documents of the Forest Service that set 

forth the supposed policies challenged,” and they could not attach a “‘policy’ label to their own 

amorphous description” of the agency’s practices. Id. Rather, “the Forest Service’s alleged 

‘policy’ . . . [was] found in no authoritative text, and [was] instead a ‘generalized complaint 

about agency behavior’ that gives rise to no cause of action.” Id. at 51 (citing Cobell v. 

Kempthorne, 455 F.3d at 307). Like the Bark plaintiffs, plaintiffs here have pointed to “no 

written rules, orders, or even guidance documents” articulating an agency policy, and rather 

“appear to have attached a ‘policy’ label to their own amorphous description of the 

[Commission’s] practices.” Id. at 50.

Similarly, in Lillemoe v. United States Department of Agriculture, Foreign Agriculture

Service, plaintiffs claimed that the Foreign Agricultural Service (“FAS”) violated the APA by 

selectively applying its program regulations and policies. Civ. No. 15-02047, 2020 WL 

1984256, at *1 (D.D.C. Apr. 27, 2020). However, “[r]ather than challenging any one decision 

by FAS, the plaintiffs . . . [challenged] FAS’s alleged de facto policy as a whole.” Id. at *7. The 

plaintiffs put forward evidence of four actions by FAS against plaintiffs that allegedly proved 

“FAS maintained a ‘policy’ of singling them out[.]” Id. The court found this evidence 

insufficient, noting that, “[a]part from these four, discrete adverse actions, the plaintiffs [were]

unable to identify, and the record [did] not contain, any evidence that FAS had an overarching 

policy,” and that “plaintiffs [had] failed to establish the existence of a de facto policy of arbitrary 

treatment towards them.” Id. As a result, “there [was] no final agency action for the Court to 

review.” Id. n.4 (citing 5 U.S.C. § 704; Bennett, 520 U.S. at 177–78). Here again, 45Committee

has made allegations about the handling of a number of other matters to which it objects, but 

offered no evidence of an “overarching policy” subject to APA review.

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And in Citizens for Responsibility & Ethics in Washington v. United States Department of 

Homeland Security, the plaintiffs alleged that the Department of Homeland Security had violated

the Federal Records Act by maintaining a deficient records management program. 387 F. Supp. 

3d at 42. The court found that plaintiffs did not challenge a final agency action and granted the 

government’s motion to dismiss. Id. at 44. The court first distinguished between an agency’s 

blanket refusal to comply with a statutory mandate and discrete instances of non-compliance, 

finding plaintiffs’ claims fit in the latter category and were therefore not justiciable. Id. at 53. 

The court then rejected the plaintiffs’ claim that the agency had a policy of refusing to 

memorialize its decision-making process, finding that the claim “supported by two examples of 

purported bad conduct by a subcomponent agency [was] too vague and conclusory to plausibly 

assert a ... claim[.]” Id. at 55 (internal citations omitted). 

Here, plaintiff’s challenge to the Commission’s alleged “concealment policy” is 

particularly meritless because the votes or other actions of three Commissioners do not — and 

by statute cannot — establish any enforcement policy on behalf of the Commission. Because 

FECA requires that any affirmative Commission action to investigate or formally advance 

enforcement against alleged violations be approved by a vote of at least four Commissioners, 52 

U.S.C. §§ 30106(c), 30107(a), a group of three Commissioners is “controlling” only for purposes 

of judicial review of a decision not to pursue such investigative or enforcement actions. See 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1475-76 (D.C. Cir. 1992). But three 

Commissioners cannot establish any policy or regulation on behalf of the agency. 52 U.S.C. 

§ 30106(c) (“All decisions of the Commission with respect to the exercise of its duties and 

powers under the provisions of this Act shall be made by a majority vote of the members of the 

Commission.”). Tellingly, plaintiff provides few details on how the alleged policy was 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 39 of 52
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implemented by the three Commissioners, arguing only that they “have forced the Commission 

to follow a new policy and practice of refusing to administratively close an enforcement matter 

file after the Commissioners failed to find reason to believe a violation occurred” in eight 

enforcement proceedings, only one of which (MUR 7486) is identified. (Compl. ¶¶ 32, 34.) By 

failing to identify any legal basis by which these Commissioners could have imposed such a 

“policy” upon the agency, plaintiff’s complaint fails to state a plausible claim for relief.

Even assuming three Commissioners could establish such a policy, plaintiff’s sweeping 

but vague “concealment policy” allegations fail to provide sufficient evidence of the challenged 

“policy” and thus do not state a claim upon which relief can be granted. While plaintiff 

references eight enforcement matters (Compl. ¶¶ 3, 7), plaintiff identifies only one specific 

instance of the Commission carrying out its alleged “policy”: MUR 7486. Courts have 

repeatedly found that substantially more detailed evidence of agency practices nevertheless 

failed to articulate a “final agency action” as opposed to “generalized complaints about agency 

behavior.” See, e.g., Lillemoe, 2020 WL 1984256, at *7 (four actions against plaintiffs); Bark, 

37 F. Supp. 3d at 50 (issuing five permits to defendant-intervenors); Citizens for Resp. & Ethics 

in Wash. v. U.S. Dep't of Homeland Sec., 387 F. Supp. 3d at 55 (offering two examples of 

purported bad conduct by a subcomponent agency was “too vague and conclusory” and failed to 

plausibly assert an “overall agency culture of resist[ance]”). 

Plaintiff claims that the alleged “concealment policy” “depart[s] from [the FEC’s]

longstanding policy and practice” (Compl. ¶ 31), citing instances where the Commission did vote 

to close the administrative file following a failed vote to find reason to believe a violation of 

FECA occurred. (Compl. ¶ 29.) Again, however, the history of the agency’s enforcement 

process belies plaintiff’s claim that such immediate dismissals are automatic or required. As 

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detailed supra, pp. 20-21, the Commission has often held one reason-to-believe or probablecause-to-believe vote that does not pass, only to determine in a later vote that there was in fact 

reason to believe or probable cause to believe on the same claim. 

Moreover, in the roughly four years since the administrative complaint against plaintiff in 

MUR 7486 was filed, the agency has closed at least 594 MURs.

11 Plaintiff alleges that eight

MURs have been wrongly held open, but even assuming the truth of that claim, eight 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. See, e.g., MUR 7207, https://www.fec.gov/data/legal/matter-underreview/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)). Plaintiff provides 

this Court with only anecdotes directly contradicted by a more complete review of FEC 

enforcement practices, and it has thus failed to “state a claim to relief that is plausible on its 

face.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). 

Finally, even assuming plaintiff was challenging a justiciable Commission policy, the 

relief plaintiff seeks is untenable. Plaintiff would have the Court “set[] aside Defendants’ new 

concealment policy” and issue an injunction “requiring Defendants to issue the required 

notifications to complainants and respondents and to publicly release Commission’s voting 

11 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). 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 41 of 52
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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 29 (Prayer for 

Relief) (emphasis added).) However, the Court may not “require the agency to follow a detailed 

plan of action” and “may not prescribe specific tasks for [the agency] to complete[.]” Cobell v. 

Kempthorne, 455 F.3d at 307. Rather, “it must allow [the agency] to exercise its discretion and 

utilize its expertise in complying with broad statutory mandates.” Id. (citing Cobell v. Norton, 

240 F.3d at 1099, 1106). Plaintiff here would have the Court supersede the discretion 

Commissioners have exercised for decades, requiring them to dismiss matters irrespective of the 

facts in any particular proceeding, and even though in some matters, like those cited above, the 

agency could hold a later vote to go forward with the matter following further deliberation. This 

would inevitably result in just the sort of “entanglement” in the “management of the agency’s 

business that the Supreme Court has instructed is inappropriate” for the federal judiciary to 

undertake. Del Monte, 706 F. Supp. 2d at 119. 

Because plaintiff has failed to challenge a “final” and “discrete” agency action, Norton,

542 U.S. at 64, it has failed to state a claim pursuant to the APA, and its “concealment policy” 

claims should be dismissed.

IV. PLAINTIFF’S MANDAMUS CLAIM SHOULD BE DISMISSED BECAUSE 

PLAINTIFF CANNOT ESTABLISH A CLEAR AND INDISPUTABLE RIGHT 

TO THAT DRASTIC RELIEF

Plaintiff’s Count V seeks “an order compelling Defendants to comply with the law by 

notifying 45Committee of the Commission’s terminating action in MUR 7486 and releasing its 

voting records and any statement of reasons.” (Compl. ¶ 119.) 45Committee seeks a writ 

pursuant to 28 U.S.C. § 1361, which grants the district courts jurisdiction over “any action in the 

nature of mandamus to compel an officer or employee of the United States or any agency thereof 

to perform a duty owed to plaintiff.” Clearly there is no basis for such relief here. 

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The “remedy of mandamus is a drastic one, to be invoked only in extraordinary 

circumstances.” Am. Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016) (citing Power 

v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)) (internal quotation marks omitted). To show 

entitlement to mandamus, a plaintiff 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. United States v. Monzel, 641 F.3d 528, 534 (D.C. Cir. 2011). These 

three threshold requirements are jurisdictional; unless all are met, a court must dismiss the claim

for lack of jurisdiction. See Burwell, 812 F.3d at 189 (citing In re Medicare Reimbursement 

Litig., 414 F.3d 7, 10 (D.C. Cir. 2005)). As with any cause of action, an action for mandamus 

requires the plaintiff to demonstrate standing as a predicate to the federal court’s exercise of its 

jurisdiction. See Nyambal v. Mnuchin, 245 F. Supp. 3d 217, 222 (D.D.C. 2017). “Where the 

relief the plaintiff is seeking is identical under either the APA or the mandamus statute, 

proceeding under one as opposed to the other is insignificant.” Id. at 223 n.5 (quoting Ctr. for 

Biological Diversity v. Brennan, 571 F.Supp.2d 1105, 1124 (N.D. Cal. 2007)).

As with its claims pursuant to the APA, plaintiff’s request for mandamus relief fails 

because it has failed to allege claims that are “plausible on [their] face[,]” let alone establish a 

clear duty to act. Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Plaintiff has 

pointed to no law requiring the Commission to release MUR proceeding records prior to a 

successful vote to close the administrative file; this vote is a clear exercise of the 

Commissioners’ discretion, entitled to the deference customarily afforded to agency law 

enforcement investigations. See supra, Part III.A. This fatally undermines any suggestion that 

the Commission is “violating a clear duty to act[.]” Monzel, 641 F.3d at 534. 

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 43 of 52
33

The party seeking mandamus also “has the burden of showing that its right to issuance 

of the writ is clear and indisputable.” Burwell, 812 F.3d at 189 (citing Power v. Barnhard, 292 

F.3d 781, 784 (D.C. Cir. 2002)) (internal quotation marks omitted). However, as explained 

above, plaintiff fails to identify a “policy” the agency has adopted to conceal records as it 

alleges. See supra Part III.B. In fact, the agency has often held one reason-to-believe or 

probable-cause-to-believe vote that does not pass, only to make such a determination in a later 

vote on the same claim. See supra pp. 20-21. Moreover, in the roughly four years since the 

administrative complaint against plaintiff in MUR 7486 was filed, the agency has closed at least

594 MURs. See supra pp. 29-30. And of course, disagreements between Commissioners about 

the termination of certain administrative proceedings demonstrate the disputability of the issues 

plaintiff raises. Compare Statement Regarding Concluded Matters with Weintraub Statement. 

Therefore, plaintiff cannot demonstrate a “clear and indisputable right to relief[.]” Monzel, 641 

F.3d at 534.

Finally, an order that such an individual official provide the broad relief plaintiff seeks 

would be an unprecedented intrusion into FEC affairs. The mandamus statute notwithstanding, 

the Court may not “require the agency to follow a detailed plan of action” and “may not 

prescribe specific tasks for [the agency] to complete[.]” Cobell v. Kempthorne, 455 F.3d at 307. 

Rather, “it must allow [the agency] to exercise its discretion and utilize its expertise in 

complying with broad statutory mandates.” Id. (citing Cobell v. Norton, 240 F.3d at 1099, 

1106). The actions at issue here are clearly subject to some dispute, and they implicate 

significant parts of the agency’s administrative enforcement process. It is for good reason that 

courts avoid such “entanglement” in the “management of the agency’s business” so that such 

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34

disputes can be resolved by those with expertise and a stake in the outcome. Del Monte, 706 F. 

Supp. 2d at 119.

Accordingly, plaintiff’s Count V should be dismissed.

V. PLAINTIFF LACKS STANDING TO PURSUE ITS CLAIMS

Plaintiff falls so short in its effort to challenge the FEC’s failure to release certain vote 

certifications and statements of reasons with respect to MUR 7486 and several other unidentified 

administrative proceedings, as shown above, that it has not even shown a legally cognizable 

injury that is redressable by this Court.

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

Behalf of Unnamed Third Parties

To establish Article III standing a plaintiff must demonstrate that: “(1) it has suffered an 

‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural 

or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) 

it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 

decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-181 (2000) 

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Where a plaintiff asserts a 

procedural right, he must show that he has suffered a personal and particularized injury that 

impairs one of his concrete interests. Int’l Bhd. of Teamsters v. TSA, 429 F.3d. 1130, 1135 (D.C. 

Cir. 2005). “[D]eprivation of a procedural right without some concrete interest that is affected 

by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing.” 

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). In addition, the federal courts 

generally prohibit a party from raising the rights or interests of third persons in challenging 

allegedly illegal governmental action. See Warth v. Seldin, 422 U.S. 490, 499-500 (1975); 

Rumber v. District of Columbia, 595 F.3d 1298, 1301 (D.C. Cir. 2010) (per curiam). This 

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prohibition is a “judicially self-imposed limit[ ] 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)). 

As explained above (supra pp. 7-10), plaintiff claims that the alleged harm it has suffered 

stems from an FEC “concealment policy” to convey a “false impression” that the FEC has not 

yet taken action on administrative complaints in its enforcement matters and to manipulate the 

courts into permitting private enforcement of FECA against respondents, a “policy” that plaintiff 

claims has also affected respondents in unidentified other administrative matters. (Compl. ¶¶ 2,

3.) Plaintiff points to no written expression of this supposed FEC “policy” and provides no 

specific information as to these other proceedings. See supra, Part III.B. Yet plaintiff seeks 

“[a]n order setting aside Defendants’ new concealment policy” and “[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 28-29 (Prayer for Relief) (emphasis added).) 

Plaintiff’s Complaint does not explain how any alleged “concealment policy,” as applied 

in unidentified administrative proceedings where plaintiff is neither complainant nor respondent, 

has caused plaintiff any cognizable injury-in-fact that an order of this Court could redress. Its 

attempt to pursue this claim violates a basic tenet of American legal jurisprudence, namely that

“the decision to seek review must be placed in the hands of those who have a direct stake in the 

outcome . . . , not . . . in the hands of concerned bystanders,” who may “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) (internal quotation marks omitted) (quoting Diamond v. Charles, 476 U.S. 54, 62 (1986)

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(other citation omitted)). Plaintiff lacks that direct stake as to other enforcement proceedings and 

therefore fails to establish standing under Article III.

There are limited exceptions to the prudential rule against third-party standing, but 

45Committee cannot meet them. A party seeking third-party standing must demonstrate both a 

“close” relationship with the person whose interests or rights are at issue and a “hindrance” to 

that person’s ability to protect his or her own interests. See, e.g., Kowalski v. Tesmer, 543 U.S. 

125, 129-30 (2004). 45Committee does not qualify for these exceptions. It has not alleged a 

“close” relationship with subjects of other FEC enforcement proceedings, nor could it do so, 

without even naming and describing these individuals or organizations. Plaintiff also fails to 

provide any basis to conclude that it has a greater ability to litigate the alleged rights of other 

FEC enforcement subjects than those subjects themselves. See Singleton v. Wulff, 428 U.S. 106, 

114 (1976) (plurality opinion of Blackmun, J.) (“[T]hird parties themselves usually will be the 

best proponents of their own rights.”). In the absence of any relationship — let alone a “close” 

one — plaintiff fails to establish third-party standing. 

Even if plaintiff’s “concealment policy” allegations were construed as applying only to 

the “seven administrative proceedings” referenced in the Complaint (although no such limitation 

is apparent in the Prayer for Relief), plaintiff fails to establish that it has any legally cognizable 

interest at stake in the outcome of those matters. (Compl. ¶¶ 3, 7.) In its Complaint plaintiff 

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 is a 

respondent. Indeed, plaintiff’s sole source of knowledge as to these matters appears to be a 

public statement made by three FEC Commissioners. (See Compl. ¶ 35 (referencing Statement 

Regarding Concluded Matters).) This dearth of information regarding these seven proceedings 

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provides 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)). 

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. For instance, 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 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.

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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. 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.” Id. 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.

B. Plaintiff Lacks Standing Even to Pursue Its Claims Regarding MUR 7486

Plaintiff also lacks standing with respect to MUR 7486, the administrative proceeding in 

which it is a respondent. Plaintiff clearly has a more “direct” stake in whatever action(s) the 

Commission ultimately decides to take in that MUR, but it does not have a cognizable interest in 

the relief it seeks here, namely “[a]n order compelling Defendants to issue the required 

notification to 45Committee of the Commission’s terminating action in MUR 7486 and publicly

release the voting records and any statement of reasons[.]” (Compl. at 29 (Prayer for Relief).) 

“Not 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 

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989, 992 (D.C. Cir. 2016) (stating that “the existence and scope of an injury for informational 

standing purposes is defined by Congress”). 

Plaintiff’s “interest in the information sought” is limited to any “concrete interest” 

granted by statute, in this case FECA. Nader, 725 F.3d at 229. Plaintiff points to only one 

provision of FECA that allegedly grants such a concrete interest, which provides that the FEC is

to “make public” a “determination” that “a person has not violated [the] Act[.]” (Compl. ¶ 26 

(citing 52 U.S.C. § 30109(a)(4)(B)(ii)).) Yet as explained supra, Part III.A, neither this 

provision nor any other plaintiff cites requires that any disclosure 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. Plaintiff’s interpretation is also contradicted by years of agency 

practice. See supra pp. 20-21. And courts have rejected similar attempts to read deadlines and 

mandates into FECA. See Stockman, 138 F.3d at 152; Fieger, 2007 WL 2351006, at *9. 

Plaintiff simply has not established a concrete interest in the information it seeks regarding MUR 

7486.

Plaintiff’s claims of informational injury are similar to but weaker than unsuccessful past 

claims about the FEC’s handling of enforcement matters brought by the administrative 

complainants to those proceedings. 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 

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40 

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 any similar showing. 

CONCLUSION

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

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 

/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 22, 2022 (202) 694-1650

Case 1:22-cv-01749-APM Document 16 Filed 08/22/22 Page 51 of 52
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CERTIFICATE OF SERVICE

I hereby certify that on August 22, 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

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