UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER, )

)

Plaintiff, ) Civ. No. 18-53 (TSC)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

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

Election Commission (“Commission” or “FEC”) hereby moves to dismiss plaintiff’s Complaint 

challenging the Commission’s alleged failure to act upon an administrative complaint within 120 

days under the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30109(a)(8)(A), and the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). This Court lacks subject matter 

jurisdiction over this matter because plaintiff has failed to allege a concrete and particularized 

injury, and therefore it does not have Article III standing. In addition, plaintiff has failed to state 

a claim under the APA because FECA provides an adequate mechanism for judicial review of 

the FEC’s conduct here, and APA review is thus precluded.

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 1 of 25
2

A supporting memorandum of points and authorities and a proposed order accompany 

this motion.

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley s/ Benjamin A. Streeter III

Associate General Counsel Benjamin A. Streeter III

kdeeley@fec.gov Attorney

bstreeter@fec.gov

 FEDERAL ELECTION COMMISSION

1050 First Street NE

March 19, 2018 Washington, DC 20463

(202) 694-1650

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 2 of 25
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER, )

)

Plaintiff, ) Civ. No. 18-53 (TSC)

)

v. )

) MEMORANDUM IN SUPPORT

FEDERAL ELECTION COMMISSION, ) OF MOTION TO DISMISS

)

Defendant. )

)

MEMORANDUM IN SUPPORT OF DEFENDANT

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley Benjamin A. Streeter III

Associate General Counsel Attorney

kdeeley@fec.gov bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

March 19, 2018 (202) 694-1650

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 3 of 25
TABLE OF CONTENTS

 Page

I. BACKGROUND...........................................................................................................2

A. The Federal Election Commission.....................................................................2

B. FECA’s Reporting Requirements and Contribution Limitations......................2

C. FECA’s Administrative Enforcement Process and Judicial Review

 Standard ........................................................................................................... 3

D. Plaintiff CLC’s Claims in This Matter..............................................................4

II. THIS CASE SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(1)

 BECAUSE PLAINTIFF CLC LACKS ARTICLE III STANDING .............................5

A. Standards of Review ..........................................................................................5

B. CLC’S Effort to Compel the FEC to Determine That Another Party 

 Violated the Law Does Not Present a Legally Cognizable Injury to CLC........7

III. CLC’S APA CLAIM SHOULD BE DIMISSED UNDER RULE 12(b)(6) 

 BECAUSE FECA PROVIDES AN ADEQUATE JUDICIAL REVIEW 

MECHANISM .............................................................................................................12

IV. CONCLUSION............................................................................................................16

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 4 of 25
ii

TABLE OF AUTHORITIES

 Cases Page

All. for Democracy, 362 F. Supp. 2d 138 (D.D.C. 2005) ....................................................9, 10

Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000)..................................................9

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987)..........................................................6

Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) .......................................9

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................5

Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................................5, 12

ASPCA v. Feld Entm’t, Inc., 659 F.3d 13 (D.C. Cir. 2011).......................................................9

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................12

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

Bowen v. Massachusetts, 487 U.S. 879 (1989)........................................................................13

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017).........................................11

 Citizens for Responsibility and Ethics in Wash. (“CREW”) v. U.S. Dep’t of the 

 Treasury, IRS, 21 F. Supp. 3d 25 (D.D.C. 2014)...............................................................9

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

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

CREW v. FEC, 267 F. Supp. 3d 50 (D.D.C. 2017)................................................................8, 9

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017)..................................................................14

CREW v. FEC, 164 F. Supp. 3d 113 (D.D.C. 2015)..........................................................14, 15

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 5 of 25
iii

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011)..................................................................11

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007)........................................................................11

CREW v. DOJ, 846 F.3d 1235 (D.C. Cir. 2017)......................................................................13

FEC v. Akins, 524 U.S. 11 (1998)............................................................................................10

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...............................4

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986)...........................................................................4

Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22 (D.D.C. 2006) ........................5

Freedom Republicans, Inc. v. FEC, 13 F.3d 412 (D.C. Cir. 1994) ...........................................6

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) .............6

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)............................................................5, 6

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

Herron for Congress v. FEC, 903 F. Supp. 2d 9 (D.D.C. 2012)...........................................6, 8

 In re Nat’l Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396 

 (D.C. Cir. Oct. 24, 1984) ...................................................................................................4

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ........................................8, 11

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

Linda R.S. v. Richard D., 410 U.S. 614 (1973) .........................................................................6

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................6, 7, 8

McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936)...................................5

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 6 of 25
iv

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)............................................................................14

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011)...........................................................12

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)................................................................14, 15

 Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 

 454 U.S. 464 (1982)...........................................................................................................6

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013)............................................................9, 10

Warth v. Seldin, 422 U.S. 490 (1975)........................................................................................6

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)............................................................8, 9

Zivotofsky v. Sec’y of State, 444 F.3d 614 (D.C. Cir. 2006)......................................................9

21st Century Telesis Joint Venture v. FCC, 318 F.3d 192 (D.C. Cir. 2003)..............................5

 Statutes and Regulations

5 U.S.C. § 704..........................................................................................................................13

5 U.S.C. § 706(1).......................................................................................................................1

52 U.S.C. § 30104......................................................................................................................2

52 U.S.C. § 30106......................................................................................................................2

52 U.S.C. § 30106(b)(1) ......................................................................................................2, 15

52 U.S.C. § 30106(c) .................................................................................................................3

52 U.S.C. § 30107......................................................................................................................2

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

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 7 of 25
v

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

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

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

52 U.S.C. § 30109(a)(6)(A).......................................................................................................3

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

52 U.S.C. § 30109(a)(8)(A).............................................................................................3, 4, 15

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................4

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

52 U.S.C. § 30116(a) .................................................................................................................2

52 U.S.C. § 30118......................................................................................................................2

52 U.S.C. § 30119......................................................................................................................2

52 U.S.C. § 30119(a) .................................................................................................................2

52 U.S.C. § 30121......................................................................................................................2

11 C.F.R. § 111.4.......................................................................................................................3

Miscellaneous

Fed. R. Civ. P. 12(b)(1) .......................................................................................................2, 12

Fed. R. Civ. P. 12(b)(6) .......................................................................................................2, 12

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 8 of 25
Plaintiff Campaign Legal Center (“CLC”) lacks Article III standing to pursue this suit

seeking relief for alleged failure to act and/or unlawful delay by defendant Federal Election 

Commission (“Commission” or “FEC”) regarding an administrative complaint filed by CLC. 

CLC has not demonstrated any informational or other concrete injury that has stemmed or could 

stem from the Commission’s handling of CLC’s administrative complaint. 

In late 2016, according to the court complaint, CLC and an individual filed an 

administrative complaint with the FEC contending that GEO Corrections Holdings, Inc. (“GC 

Holdings”) was a federal contractor that had made substantial contributions to an independentexpenditure-only political committee in violation of the Federal Election Campaign Act’s

(“FECA” or “Act”) ban on federal contractor contributions. (Compl. for Declaratory and 

Injunctive Relief (Docket No. 1) (“Compl.”) ¶¶ 8, 18-20.) CLC now asserts claims under FECA, 

52 U.S.C. § 30109(a)(8)(A), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1),

that the Commission has unlawfully failed to act or delayed handling this administrative 

complaint. (Compl. ¶¶ 21, 23-24.) But CLC has no Article III standing because it has failed to 

allege or demonstrate any concrete and particularized injury. In particular, CLC cannot establish 

any informational injury because a mere desire for a determination by the FEC that FECA’s ban 

on federal contractor contributions was violated is insufficient. CLC does not allege that such 

contributions resulted in any failure to disclose information in violation of FECA’s reporting 

requirements. Indeed, CLC already knows the nature and source of the contributions about 

which it complains, including through required public reporting made to the FEC by the recipient 

committee. And standing cannot rest on a broad desire to see federal law enforced, because such 

a generalized interest in law enforcement is insufficient to establish an Article III case or 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 9 of 25
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controversy. Thus, CLC’s suit must be dismissed for lack of jurisdiction pursuant to Federal 

Rule of Civil Procedure 12(b)(1).

In addition, with regard to the APA count in the Complaint, CLC has failed to state a 

claim pursuant to Rule 12(b)(6), because 52 U.S.C. § 30109(a)(8)(A) provides an adequate 

mechanism for judicial review of challenges to alleged FEC inaction or delay. Recent decisions 

of courts in this District have confirmed that FECA’s judicial review provision precludes APA 

claims challenging agency dismissals of administrative complaints, and the same is plainly true 

of purported APA claims alleging agency delay in acting on such complaints. 

I. BACKGROUND

A. The Federal Election Commission 

The FEC is a six-member independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106-07. Congress authorized the Commission, inter alia, to investigate possible 

violations of the Act, id. § 30109(a)(1)-(2), and granted the Commission exclusive jurisdiction to 

initiate civil enforcement actions for violations of the Act in the United States district courts, id.

§§ 30106(b)(1), 30109(a)(6).

B. FECA’s Reporting Requirements and Contribution Limitations 

FECA generally requires candidates, political parties, and political committees to disclose 

publicly the amounts they spend and receive in reports filed with the FEC. See 52 U.S.C. § 

30104. FECA also limits the dollar amounts and permissible sources of contributions such 

persons may receive. 52 U.S.C. §§ 30116(a), 30118-19, 30121. One of those prohibitions is the 

making or knowing solicitation of contributions from federal contractors. 52 U.S.C. § 30119(a). 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 10 of 25
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C. FECA’s Administrative Enforcement Process and Judicial Review Standard

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

alleging a violation. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing the 

complaint and any response filed by the respondent whose conduct is at issue, the Commission 

considers whether there is “reason to believe” that FECA has been violated. 52 U.S.C. 

§ 30109(a)(2). If at least four of the FEC’s Commissioners vote to find such reason to believe, 

the Commission may investigate the alleged violation; otherwise, the Commission dismisses the 

administrative complaint. Id. §§ 30106(c), 30109(a)(2). Any administrative investigation under 

this provision is confidential until the administrative process is complete. Id. § 30109(a)(12). 

If an investigation is conducted, the FEC must then determine whether there is 

“probable cause” to believe that FECA has been violated. Like a reason-to-believe finding, a 

determination to find probable cause to believe that a FECA violation has occurred requires an 

affirmative vote of at least four Commissioners. 52 U.S.C. §§ 30106(c), 30109(a)(4)(A)(i). If 

the FEC makes such a determination, the agency is statutorily required to attempt to remedy the 

apparent violation informally and attempt to reach a conciliation agreement with the respondent. 

Id. § 30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation agreement, FECA

authorizes the agency to institute a de novo civil enforcement action in federal district court. Id. 

§ 30109(a)(6)(A). Entering into a conciliation agreement or instituting a civil action requires an 

affirmative vote of at least four Commissioners. Id. §§ 30106(c), 30109(a)(6)(A).

Administrative complainants may challenge the FEC’s handling of their complaints in 

two limited situations. See 52 U.S.C. § 30109(a)(8)(A). First, a party who has filed an 

administrative complaint may sue the Commission in the event of “a failure of the Commission 

to act on [the administrative] complaint during the 120-day period beginning on the date the

complaint is filed.” Id. This 120-day period is a jurisdictional threshold before which suit may 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 11 of 25
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not be brought, not a timetable within which the Commission must resolve an administrative 

complaint. See, e.g., FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986). The second situation 

in which an administrative complainant may file suit is where the Commission decides to dismiss 

the complaint. In that event, FECA allows the complainant to challenge the dismissal in court. 

52 U.S.C. § 30109(a)(8)(A). 

If a court finds that a Commission dismissal or failure to act was “contrary to law,” it 

may order the Commission to conform to the court’s decision within 30 days. 52 U.S.C. 

§ 30109(a)(8)(C); see In re Nat’l Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396, at *1 

(D.C. Cir. Oct. 24, 1984) (per curiam); Rose, 806 F.2d at 1084. If the Commission fails to 

conform within that time period, the administrative complainant may bring a civil action to 

remedy the violation alleged in the administrative complaint. 52 U.S.C. § 30109(a)(8)(C); see 

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

D. Plaintiff CLC’s Claims in This Matter

Plaintiff’s court complaint alleges that on November 1, 2016, CLC and Catherine 

Hinckley Kelley filed an administrative complaint with the FEC seeking “enforcement for

apparent violation of the ban on federal contractor donations.” (Compl. ¶ 18.) CLC claims that, 

as detailed in that administrative complaint as well as a supplement filed on December 20, 2016, 

GC Holdings was a federal contractor that unlawfully contributed $225,000 to Rebuilding 

America Now, an independent-expenditure-only political committee or “super PAC.” (Id. ¶¶ 1, 

18, 20.)

A little more than a year later, on January 10, 2018, CLC filed this suit seeking 

declaratory and injunctive relief against the FEC. (Compl. ¶ 1.) Plaintiff asks the Court to 

declare that the FEC’s failure to act on its administrative complaint within 120 days was contrary 

to law under 52 U.S.C. § 30109(a)(8)(A) and constituted unreasonable delay under 5 U.S.C. § 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 12 of 25
5

706(1). (Compl. ¶¶ 24, 26; Requested Relief ¶¶ 1, 2.) Plaintiff also asks the Court “to order the 

FEC to conform with [such] declaration within 30 days.” (Compl., Requested Relief ¶ 3.)

II. THIS CASE SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(1) 

BECAUSE PLAINTIFF CLC LACKS ARTICLE III STANDING 

A. Standards of Review

“Article III, section 2 of the Constitution limits federal courts to deciding actual ongoing 

controversies.” 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003) 

(internal citations omitted). There is no such controversy when a plaintiff lacks standing. 

Plaintiff CLC bears the burden of establishing this Court’s subject matter jurisdiction, including 

showing that CLC has constitutional standing. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 

2015). “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . .

clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the 

dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (citations and internal 

quotation marks omitted). 

To survive the FEC’s motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(1), the judicial complaint “must contain sufficient factual matter, accepted as true, to ‘state 

a claim [of standing] that is plausible on its face.’” Arpaio, 797 F.3d at 19 (alteration in original)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A plaintiff “must allege in his pleading 

the facts essential to show jurisdiction,” McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 

U.S. 178, 189 (1936), and “the necessary factual predicate may not be gleaned from the briefs 

and arguments,” FW/PBS, 493 U.S. at 235 (internal quotation marks omitted). However, this 

Court “may look beyond the allegations contained in the complaint” to “materials outside the 

pleadings” to determine whether a plaintiff can show standing. Flores ex rel. J.F. v. District of 

Columbia, 437 F. Supp. 2d 22, 28-29 (D.D.C. 2006) (internal quotation marks omitted). 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 13 of 25
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Although the elements of standing cannot be “reduced to a one-sentence or oneparagraph definition,” Valley Forge Christian Coll. v. Ams. United for Separation of Church and 

State, Inc., 454 U.S. 464, 471 (1982), CLC must show a reasonable chance of “obtaining a 

tangible benefit from winning,” Herron for Congress v. FEC, 903 F. Supp. 2d 9, 16 (D.D.C. 

2012). To demonstrate Article III standing, a plaintiff must specifically establish that: “(1) [the 

plaintiff] 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. 

(TOC), Inc., 528 U.S. 167, 180-181 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-

561 (1992)). Particularized means that “the injury must affect the plaintiff in a personal and 

individual way.” Lujan v. Defs. of Wildlife, 504 U.S. at 560 n.1. And when, as here, “a 

plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of 

regulation) of someone else,” standing is “substantially more difficult” to establish. Id. at 562. 

Accord Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997); see also Linda R.S. v. 

Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest 

in the prosecution or nonprosecution of another.”) Standing “focuses on the complaining party 

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

of particular issues.’” Am. Legal Found. v. FCC, 808 F.2d 84, 88 (D.C. Cir. 1987) (quoting 

Warth v. Seldin, 422 U.S. 490, 498 (1975)). Thus, courts “may not entertain suits alleging 

generalized grievances that agencies have failed to adhere to the law.” Freedom Republicans, 

Inc. v. FEC, 13 F.3d 412, 415 (D.C. Cir. 1994). 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 14 of 25
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B. CLC’s Effort to Compel the FEC to Determine That Another Party Violated 

the Law Does Not Present a Legally Cognizable Injury to CLC

Plaintiff CLC cannot establish Article III standing because the only purported injury it 

has alleged is a generalized desire to see the FEC apply the law against someone else. CLC fails 

to allege that it has suffered any concrete or particularized injury from allegedly illegal 

contributions by GC Holdings. Rather, CLC simply wishes to have the FEC determine whether 

the alleged activities it complains of constitute a violation of FECA and to compel the agency to 

enforce the law against the alleged violator. Such concerns cannot be the basis for standing

because there is “no justiciable interest in having the Executive Branch act in a lawful manner.” 

Common Cause, 108 F.3d at 419.

CLC’s court complaint makes only a nominal effort to show any connection between 

CLC itself and the contributions about which it complains. CLC describes itself as a 

nonpartisan, nonprofit organization working to strengthen American democracy by efforts to 

“ensure that the public has access to information” regarding campaign finances. (Compl. ¶ 3.) 

CLC further claims that it advances its interests by research, authoring reports, and its 

involvement in litigation. (Id.) Among these activities are CLC’s filing of “FEC complaints 

requesting that enforcement actions be taken” and “suits in federal court when the FEC fails to 

comply with the provisions of FECA.” (Id.) In this case, CLC alleges that it filed an 

administrative complaint asserting that GC Holdings violated FECA’s ban on federal contractor 

contributions by making two contributions to Rebuilding America Now during the 2016 election 

campaign. A little more than a year later, CLC filed this suit alleging unlawful delay. See supra

p. 4.

CLC has failed, however, to allege any discrete injury that affects CLC “in a personal and 

individual way.” Lujan, 504 U.S. at 560 n. 1. It makes no claim that its efforts to strengthen 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 15 of 25
8

American democracy are hindered in any concrete or specific way by the FEC’s alleged failure 

to act in this matter. This is not a situation where a plaintiff asserts a conjectural or hypothetical 

injury-in-fact; here, CLC’s court complaint makes no allegation at all that it has suffered any 

injury, and thus CLC cannot obtain “any tangible benefit from winning” this suit. Herron, 903 

F. Supp. 2d at 16. See Citizens for Responsibility and Ethics in Wash. (“CREW”) v. FEC, 267 F. 

Supp. 3d 50, 53 (D.D.C. 2017) (“easily” dismissing claims that the FEC had failed to investigate 

allegations, inter alia, of unlawful contributions from a source prohibited by FECA).

What CLC does seek is “a legal conclusion that carries certain law enforcement 

consequences” for others. Wertheimer v. FEC, 268 F.3d 1070, 1075 D.C. Cir. 2001). But 

“[w]hile ‘Congress can create a legal right . . . the interference with which will create an Article 

III injury,’ . . . Congress cannot . . . create standing by conferring ‘upon all persons . . . an 

abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures 

required by law.’” Common Cause, 108 F.3d at 418 (quoting Lujan, 504 U.S. at 573) (emphasis 

in original, internal citation omitted). In this case, there can be little doubt that CLC’s complaint 

seeks only to have the FEC pursue GC Holdings for alleged violations of the federal contractor 

contribution ban. That is not enough to support standing.

As the D.C. Circuit has confirmed, a plaintiff cannot “establish injury in fact merely by 

alleging that he has been deprived of the knowledge as to whether a violation of [FECA] has 

occurred.” Common Cause, 108 F.3d at 418 (explaining that such a holding “would be 

tantamount to recognizing a justiciable interest in the enforcement of the law”). “[T]he 

government’s alleged failure to ‘disclose’ that certain conduct is illegal by itself does not give 

rise to a constitutionally cognizable injury.” Wertheimer, 268 F.3d at 1074; see also Judicial 

Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 46 (D.D.C. 2003) (stating that “an injury that occurs 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 16 of 25
9

when a person is deprived of information that a law has been violated” is not legally 

cognizable.); Vroom v. FEC, 951 F. Supp. 2d 175, 178-79 (D.D.C. 2013). In sum, what a 

plaintiff in such cases really “desires is for the Commission to ‘get the bad guys,’ rather than 

disclose information. [Plaintiff] has no standing to sue for such relief.” Common Cause, 108 

F.3d at 418.

An Article III injury can arise when a statute has “‘explicitly created a right to 

information,’” Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 97 (D.D.C. 2000) (quoting Animal 

Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 1994)), but CLC does not make such a 

claim here. “For a plaintiff to successfully claim standing based on an informational injury, he 

must allege that he is directly deprived of information that must be disclosed under a statute.”

CREW v. U.S. Dep’t of the Treasury, IRS, 21 F. Supp. 3d 25, 32 (D.D.C. 2014); ASPCA v. Feld

Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (“For purposes of informational standing, a 

plaintiff ‘is injured-in-fact . . . because he did not get what the statute entitled him to receive.’”) 

(quoting Zivotofsky v. Sec’y of State, 444 F.3d 614, 618 (D.C. Cir. 2006)). However, “[n]othing 

in the FECA requires that information concerning a violation of the Act as such be disclosed to 

the public.” All. for Democracy v. FEC, 362 F. Supp. 2d 138, 148 (D.D.C. 2005). CLC makes 

no claim to deprivation of any statutorily required disclosure. Courts in comparable FEC cases 

have repeatedly emphasized that plaintiffs seeking determinations of illegality lack standing to 

maintain their claims. See, e.g., Wertheimer, 268 F.3d at 1075 (holding that plaintiffs lacked 

standing to seek a legal determination that certain transactions constitute coordinated 

expenditures); CREW, 267 F. Supp. 3d at 54 (holding that advocacy group lacked standing to 

challenge FEC dismissal of alleged violation of FECA’s “prohibition on pass-through 

contributions” because “nothing in the statute or regulatory regime” would have required the 

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10

alleged violator to disclose information); Vroom, 951 F. Supp. 2d at 178-79 (holding that 

plaintiff lacked standing to seek a legal determination that certain political committees were 

affiliated).

Alleged violations of FECA’s reporting violations can suffice to provide an informational 

injury, see, e.g., FEC v. Akins, 524 U.S. 11 (1998), but here plaintiff claims that already 

disclosed contributions were unlawful, not that contributions failed to be disclosed. CLC has 

already received key information about the allegedly improper contributions here directly from 

mandatory FEC disclosure reports filed by Rebuilding America Now, data which is also readily

available to the general public. See Compl. ¶¶ 8 n.4, 18 n.14; Rebuilding America Now, Report 

of Receipts & Disbursements at 13, FEC Form 3X (filed Dec. 8, 2016), 

http://docquery.fec.gov/cgi-bin/fecimg/?201612089039950752; Rebuilding America Now, 

Report of Receipts & Disbursements at 33, FEC Form 3X (filed Oct. 15, 2016), 

http://docquery.fec.gov/cgi-bin/fecimg/?201610159032869693. This reporting shows the nature 

and extent of GC Holdings’s support for Rebuilding America Now, regardless of whether the

contributions were lawful under FECA. “[N]o informational injury has been sustained here 

because the information required to be disclosed by the statute has already been disclosed.” All.

for Democracy, 362 F. Supp. 2d at 147. 

CLC also does not allege that any FEC investigation in this matter would elicit new 

information that is legally required to be disclosed. 52 U.S.C. § 30119 merely prohibits the 

making of certain contributions, and it is distinct from FECA’s reporting requirements at 52 

U.S.C. § 30104. Thus, even if the Commission were to investigate plaintiff’s allegations of 

unlawful federal contractor contributions, plaintiff would not learn the identity of any donor of 

whom it is currently unaware. CLC already alleges that GC Holdings is the true source of the 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 18 of 25
11

funds. (Compl. ¶¶ 1, 8, 18.) In circumstances like this where any information claimants may 

purport to seek is already available to them, those claimants lack standing to maintain their 

claims. See, e.g., Judicial Watch, 293 F. Supp. 2d at 46-47 (holding that a plaintiff who had 

alleged reporting violations regarding his own contributions to a candidate lacked standing 

because he was “already aware of the facts underlying his own alleged contributions” and his 

lawsuit was unlikely to produce additional facts of which he was not already knowledgeable); 

CREW v. FEC, 799 F. Supp. 2d 78, 88-89 (D.D.C. 2011) (holding that plaintiffs lacked a 

cognizable informational injury where they sought a legal determination that certain expenses 

were in-kind contributions but failed to “allege any specific factual information . . . that [wa]s 

not already publicly available”); see also CREW v. FEC, 475 F.3d 337, 339-40 (D.C. Cir. 2007) 

(holding that plaintiffs lacked standing in part because “any citizen who wants to learn the details 

of the transaction . . . can do so by visiting the Commission’s website, which contains the 

[sought after] list and a good deal more”).

In fact, a recent case CLC itself brought against the FEC underlines the lack of 

cognizable injury where a plaintiff already has the relevant information that FECA requires to be 

disclosed. See Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 125-27 (D.D.C. 2017). In 

that challenge to the dismissal of several administrative complaints, the court found no 

informational injury and thus no standing as to complaints that amounted to efforts to have the 

FEC reclassify known, publicly reported contributions as illegal, that is, to have the FEC make a 

legal determination. (Id. at 125-26.) By contrast, the court found that CLC did have standing to 

pursue claims — unlike those here — alleging missing information about the true source of 

contributed funds. (Id. at 127.) 

In this case, CLC may have a general interest in learning whether known contributions 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 19 of 25
12

made by GC Holdings were unlawful, but CLC lacks standing to seek that information because 

there is no general statutory requirement that a violation of the Act be disclosed as such to the 

public. CLC’s desire “for the Commission to ‘get the bad guys’” is not a legally cognizable 

interest, Common Cause, 108 F.3d at 418, and CLC has thus failed to plead or show any 

particularized injury sufficient to give it standing. This case should be dismissed for lack of 

jurisdiction.

III. CLC’S APA CLAIM SHOULD BE DISMISSED UNDER RULE 12(b)(6) 

BECAUSE FECA PROVIDES AN ADEQUATE JUDICIAL REVIEW 

MECHANISM

Plaintiff CLC’s claim pursuant to the Administrative Procedure Act should be dismissed. 

Dismissal of a claim is appropriate where, accepting the factual allegations in the complaint as 

true and drawing all reasonable inference in the plaintiff’s favor, the allegation fails as a matter 

of law to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 

556 U.S. at 678; Sierra Club v. Jackson, 648 F.3d. 848, 854 (D.C. Cir. 2011). A claim must be 

dismissed “when the allegations in a complaint, however true, could not raise a claim of 

entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). In this case, CLC

purports to rely on the APA as a separate and independent basis for challenging the

Commission’s alleged delay, asserting that “[b]y failing to act on plaintiff’s administrative 

complaint within 120 days of its filing, the FEC unlawfully withheld and unreasonably delayed 

agency action under 5 U.S.C. § 706(1).” (Compl. ¶ 26.) However, no separate APA claim exists 

because FECA provides an adequate judicial review mechanism. Thus, CLC’s purported APA 

claim should be dismissed.1

 

 1

 In the alternative, CLC’s APA claim could be dismissed for a lack of subject matter 

jurisdiction pursuant to Rule 12(b)(1) rather than Rule 12(b)(6); courts have “not always been 

consistent in maintaining the[] distinctions” between the two rules. Sierra Club, 648 F.3d at 853. 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 20 of 25
13

52 U.S.C. § 30109(a)(8) provides the exclusive mechanism for judicial review of any 

FEC dismissal of an administrative complaint and any claimed failure to act on such a complaint. 

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.; see CREW v. DOJ, 846 F.3d 1235, 1244-

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

the relevant statute’s language, structure, and legislative history. See Block v. Cmty. Nutrition 

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

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

judicial review are “impliedly precluded”); 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).

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

action challenging alleged FEC delay in handling an administrative complaint. The statute 

specifies that (a) the statutory cause of action is available only to a complainant (b) whose 

complaint was not acted on within 120 days; (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 . . . 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. § 

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14

30109(a)(8). 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). 

Although this issue has mostly arisen in the context of administrative complaint 

dismissals rather than alleged delay, every court that has considered the nature of the judicialreview procedures in section 30109(a)(8) has found that those FECA procedures are exclusive. 

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). 

The Fifth Circuit similarly found “substantial evidence that Congress set forth the exclusive 

means for judicial review under [FECA]” in section 30109(a)(8). Stockman v. FEC, 138 F.3d 

144, 156 (5th Cir. 1998). More recently, this District Court has twice held that the review 

procedure in section 30109(a)(8) precludes an APA claim for dismissal of an administrative 

complaint. CREW 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 v. FEC, 164 F. Supp. 3d 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 22 of 25
15

113, 120 (D.D.C. 2015) (“This [section 30109(a)(8) judicial review mechanism] precludes 

review of FEC enforcement decisions under the APA.”).

FECA’s overall structure and legislative history 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,” CREW, 164 F. Supp. 3d at 119 (citing section 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, 138 F.3d at 154 (alteration in original) (quoting 120 Cong. 

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

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

Commission’s dismissal or delay of administrative complaints and limits the scope of relief 

available to plaintiff CLC in this action. The portions of plaintiff’s complaint that purport to rely 

on the APA or seek relief beyond what is permitted in section 30109(a)(8) thus fail to state a 

claim and should be dismissed. 

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 23 of 25
16

IV. CONCLUSION

For all the foregoing reasons, the Court should dismiss plaintiff’s Complaint. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley /s/ Benjamin A. Streeter III

Associate General Counsel Benjamin A. Streeter IIII

kdeeley@fec.gov Attorney

bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

1050 First Street NE

March 19, 2018 Washington, DC 20463

(202) 694-1650

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 24 of 25
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER, )

)

Plaintiff, ) Civ. No. 18-cv-0053 (TSC)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) PROPOSED ORDER

)

Defendant. )

)

[PROPOSED] ORDER

Upon consideration of defendant Federal Election Commission’s Motion to Dismiss and

any opposition filed by plaintiff Campaign Legal Center, it is hereby

ORDERED that the Federal Election Commission’s Motion to Dismiss is GRANTED, 

and Campaign Legal Center’s Complaint is DISMISSED WITH PREJUDICE.

Dated: _______________, 2018 ____________________________

The Honorable Tanya S. Chutkan 

United States District Judge

Case 1:18-cv-00053-TSC Document 16 Filed 03/19/18 Page 25 of 25