UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON and ) No. 1:10-cv-01350-RMC

MELANIE SLOAN, )

)

Plaintiffs, )

)

v. )

) MOTION TO DISMISS

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

FEDERAL ELECTION COMMISSION’S MOTION 

TO DISMISS AMENDED COMPLAINT

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

Federal Election Commission moves to dismiss this case for lack of subject matter 

jurisdiction and failure to state a claim upon which relief can be granted. The grounds for 

the motion are fully set forth in the accompanying memorandum. 

Respectfully submitted,

Phillip Christopher Hughey

Acting General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

/s/ Robert W. Bonham III (D.C. Bar No. 397859)

Robert W. Bonham III 

Senior Attorney

Case 1:10-cv-01350-RMC Document 11 Filed 11/15/10 Page 1 of 2
2

Vivien Clair

Attorney

 

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

November 15, 2010 (202) 694-1650

Case 1:10-cv-01350-RMC Document 11 Filed 11/15/10 Page 2 of 2
1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON and )

MELANIE SLOAN, )

)

Plaintiffs, )

) No. 1:10-cv-01350-RMC

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

FEDERAL ELECTION COMMISSION’S MEMORANDUM

IN SUPPORT OF ITS MOTION TO DISMISS 

PLAINTIFFS’ AMENDED COMPLAINT

Phillip Christopher Hughey

Acting General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel

Robert W. Bonham III (D.C. Bar No. 397859)

Senior Attorney

Vivien Clair

Attorney

FEDERAL ELECTION COMMISSION

999 E Street, N.W. 

Washington, D.C. 20463

November 15, 2010 (202) 694-1650

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 1 of 40
i

TABLE OF CONTENTS

 Page

I. INTRODUCTION ...................................................................................................1

II. BACKGROUND .....................................................................................................2

A. Legal Background........................................................................................2

B. Procedural History .......................................................................................4

1. Plaintiffs’ Administrative Complaint...............................................4

2. Plaintiffs’ First Judicial Complaint..................................................7

3. The Commission’s First Motion to Dismiss....................................8

4. Plaintiffs’ Amended Complaint .......................................................9

III. THE COURT SHOULD DISMISS PLAINTIFFS’ COMPLAINT FOR

LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO

STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED....................10

A. Legal Standards for Motions to Dismiss for Lack of Subject 

Matter Jurisdiction .....................................................................................11

B. Plaintiffs Have Alleged No Injury Sufficient to Support Article III 

Standing to Challenge the Dismissal of Their Administrative 

Complaint in MUR 5908 ...........................................................................11

1. Plaintiffs Must Establish Article III Standing................................11

2. Plaintiffs Fail to Allege a Concrete and Particularized Injury

under Article III .............................................................................13

C. Plaintiffs Cannot Show that the Dismissal of the Complaint in 

MUR 5908 Was Contrary to Law or an Abuse of the 

Commission’s Discretion...........................................................................18

1. Standard of Review under 2 U.S.C. § 437g(a)(8).........................19

2. The Commission’s Dismissal of Plaintiffs’ Administrative

Complaint Was Lawful .................................................................20

D. The Court Lacks Jurisdiction under 2 U.S.C. § 437g(a)(8) to Decide 

Plaintiffs’ Groundless Claim that the Commission Must Provide 

Administrative Complainants 60 Days to File Suit After Notice and 

an Explanation of Dismissals.....................................................................27

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1. Plaintiffs Lack Constitutional and Statutory Standing to Pursue 

Their Generalized “Policy and Practice” Claim on Behalf of 

Themselves and Others..................................................................27

2. Plaintiffs Claim that the Commission Must Provide Notice 

and an Explanation of Administrative Dismissals 60 Days Prior 

to the Deadline for Seeking Judicial Review Is Groundless..........30

E. Plaintiffs Cannot Pursue Their “Policy and Practice” Allegations 

under the Administrative Procedure Act....................................................34

1. Because FECA Forbids the Relief Plaintiffs Seek, the APA 

Cannot Provide the Requested Remedy.........................................34

2. Plaintiffs Lack Prudential Standing to Sue under the APA 

on Behalf of Third Parties..............................................................35

IV. CONCLUSION......................................................................................................37

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I. INTRODUCTION

Defendant Federal Election Commission (“Commission” or “FEC”) moves this Court to 

dismiss the amended complaint of Citizens for Responsibility and Ethics in Washington 

(“CREW”) and Melanie Sloan for lack of subject matter jurisdiction and failure to state a claim 

upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Plaintiffs lack 

standing to pursue their claim that the Commission‟s dismissal of their administrative complaint 

in MUR 5908 was contrary to law because they have alleged no concrete and particularized 

injury. Plaintiffs appear to seek only to have the Commission compel two political committees 

(the leadership committee and presidential campaign committee of Congressman Duncan 

Hunter) to report disbursements for about $10,000 in travel expenses as in-kind contributions. 

However, the D.C. Circuit has held that re-labeling of known activity does not create 

informational injury and cannot support standing. Even if plaintiffs had standing, they could not 

show that the Commission abused its discretion when it found that there was insufficient 

evidence that the disbursements were unlawful; in any case, any potential violation of law was 

de minimis and subject to the agency‟s exercise of its prosecutorial discretion not to proceed.

Plaintiffs also lack standing to pursue their claim that the Commission must provide 

administrative complainants with notice and an explanation of dismissals of their complaints 

60 days before the deadline for them to seek judicial review of the dismissal under 2 U.S.C. 

§ 437g(a)(8), a provision of the Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA” 

or “Act”). Plaintiffs have alleged no specific and concrete injury from not having had 60 days in 

which to review these materials in deciding whether to seek judicial review in MUR 5908. Even 

if plaintiffs could establish an injury in fact, they cannot show redressability. They have already 

brought their claims to court twice, and the Court can do nothing now to provide plaintiffs 

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2

additional relief regarding the time they had to consider the Commission‟s reasons for dismissing 

their administrative complaint. Moreover, plaintiffs lack standing to pursue their “policy and 

practice” claims on behalf of others under section 437g(a)(8), which permits complainants to 

seek review only of the dismissals of their own complaints. On the merits, plaintiffs‟ “policy and 

practice” allegation fails to state a claim upon which relief can be granted under section 

437g(a)(8) or the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA”), because 

plaintiffs‟ claim is contrary to FECA‟s plain language and D.C. Circuit precedent. 

For all these reasons, plaintiffs‟ complaint is not justiciable and should be dismissed for 

lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. 

II. BACKGROUND

A. Legal Background

The Federal Election Commission is an independent agency of the United States 

government with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of FECA. See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Congress

authorized the Commission to “formulate policy” under FECA, see, e.g., 2 U.S.C. § 437c(b)(1), 

and to make rules and issue advisory opinions. 2 U.S.C. §§ 437d(a)(7), (8); 437f; 438(a)(8). See 

also Buckley v. Valeo, 424 U.S. 1, 110-111 (1976). The Commission is also authorized to 

institute investigations of possible violations of the Act, 2 U.S.C. §§ 437g(a)(1)-(2), and has 

exclusive jurisdiction to initiate civil enforcement actions in the United States district courts. 

2 U.S.C. §§ 437c(b)(1), 437d(a)(6), 437d(e), 437g(a)(6).

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

alleging violations of the Act. 2 U.S.C. § 437g(a)(1); see also 11 C.F.R. § 111.4. The complaint 

can lead to Commission enforcement proceedings and possible civil suit by the agency with 

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respect to the alleged violations. See generally 2 U.S.C. §§ 437g(a)(2)-(6). However, before the 

agency may file suit, the Act requires that it take the following steps: find “reason to believe” a 

violation has occurred; conduct an investigation of the matter; find “probable cause to believe” a 

violation has occurred; and lastly, attempt to resolve the matter through conciliation. See id. 

Under 2 U.S.C. § 437g(a)(12), Commission enforcement activity generally must remain 

confidential until the relevant matter is closed, after which materials related to the matter are 

placed on the public record.

Section 437g(a)(8)(A) authorizes only limited judicial review of FEC enforcement 

decisions. Specifically, administrative complainants must satisfy standing and other 

jurisdictional requirements to file suit to challenge “a failure of the Commission to act on such 

complaint[s]” within 120 days after the complaint was filed or to challenge the dismissal of their 

complaints by the Commission. 2 U.S.C. § 437g(a)(8)(A). See, e.g. CREW v. FEC, 401 F. 

Supp. 2d 115 (D.D.C. 2005) (section 437g(a)(8) suit dismissed on standing grounds), aff’d, 

475 F.3d 337 (D.C. Cir. 2007). A complainant must file a dismissal suit “within 60 days after 

the date of the dismissal.” 2 U.S.C. § 437g(a)(8)(B). 

“A court may not disturb a Commission decision to dismiss a complaint unless the 

dismissal was based on an „impermissible interpretation of the Act . . . or was arbitrary or 

capricious, or an abuse of discretion.‟” Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 

1997) (quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)). The sole remedy the 

district court may grant in such a case is a declaration “that the dismissal of the complaint or the 

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

declaration within 30 days.” 2 U.S.C. § 437g(a)(8)(C). See Perot v. FEC, 97 F.3d 553, 557-558 

(D.C. Cir. 1996). If the Commission fails to conform to the court‟s declaration, the

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administrative complainant “may bring, in the name of such complainant, a civil action to 

remedy the violation involved in the original complaint.” 2 U.S.C. § 437g(a)(8)(C). 

When the Commission follows the recommendation of its General Counsel and dismisses 

an administrative complaint, the General Counsel‟s report to the Commission provides the basis 

for judicial review. FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 

38 & n.19 (1981) (rationale for the Commission‟s action may be gleaned by the reviewing court 

from the staff reports). See also CREW, 475 F.3d at 338-339. However, when the Commission 

rejects the General Counsel‟s recommendation to pursue a possible violation of the Act, the 

reasoning of the Commissioners who voted to dismiss the complaint, sometimes described as the 

“declining-to-go-ahead” Commissioners or the “controlling group,” provides the basis for 

judicial review. Common Cause, 108 F.3d at 415-416; FEC v. National Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992); Common Cause v. FEC, 842 F.2d 436, 439 

(D.C. Cir. 1988). That reasoning is generally explained in a statement of reasons. 

B. Procedural History

1. Plaintiffs’ Administrative Complaint

In March 2007, plaintiffs filed an administrative complaint with the Commission alleging 

that Peace Through Strength Political Action Committee (“PTS PAC”) and its treasurer violated 

various provisions of FECA and its implementing regulations.1 The administrative complaint 

alleged that PTS PAC, the leadership PAC of Congressman Duncan Hunter,2financed both 

travel by Congressman Hunter and television advertisements in early primary and caucus states 

 

1 Administrative Complaint, MUR 5908 (Mar. 14, 2007) (“Admin. Compl.”), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274374.pdf.

2 A “Leadership PAC” is a political committee established by an elected official to support 

other candidates and party committees and to fund political pursuits of the officeholder apart 

from his own re-election. See 11 C.F.R. § 100.5(e)(6); Alliance for Democracy v. FEC, 

362 F. Supp. 2d 138, 140 (D.D.C. 2005).

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during late 2006 and early 2007 while Hunter was “testing the waters” whether to become a 

candidate for President of the United States in the 2008 elections.3 The complaint was not 

explicit whether the travel costs violated the Act, but it alleged that PTS PAC‟s disbursements 

for the television advertisements resulted in at least $12,275 in excessive in-kind contributions 

by PTS PAC to Congressman Hunter and the Hunter Committee for his 2008 presidential 

campaign. Admin. Compl. ¶¶ 32-35 (Count III). 

The Commission designated plaintiffs‟ administrative complaint Matter Under Review 

(“MUR”) 5908 for administrative purposes. In January 2009, the Commission found “reason to 

believe” that several violations had occurred, including excessive contributions by PTS PAC in 

connection with the travel expenses; however, following the recommendations of the General 

Counsel, the Commission determined to take no action with respect to other allegations in the 

administrative complaint, including those related to the advertisements.4 Following an 

administrative investigation as to the remaining allegations, the Commission‟s General Counsel 

made additional recommendations.5 On June 29, 2010, the Commission concluded that there 

 

3 Under the Act, an individual becomes a candidate for federal office (and thus triggers 

registration and reporting obligations under the Act) when his or her campaign either receives 

$5,000 in contributions or makes $5,000 in expenditures. 2 U.S.C. § 431(2). However, there is a 

limited exception for amounts raised and spent while an individual is “testing the waters” to 

decide whether to become a candidate. In that case, the Commission‟s regulations provide that 

the terms “contributions” and “expenditures” do not include funds received or payments made 

solely to determine whether an individual should become a candidate. 11 C.F.R. §§ 100.72(a), 

100.131(a). Thus, before making a final decision whether to become a candidate, an individual 

may raise or spend more than $5,000 without triggering candidate status if his or her activities 

are permissible “testing the waters” activities, which include but are not limited to conducting 

polls, making telephone calls, and traveling. Id. 

4

See First General Counsel‟s Report, MUR 5908 (Jan. 18, 2008), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274452.pdf; Certification of Commission Action, 

MUR 5908 (Jan. 30, 2009), available at http://eqs.nictusa.com/eqsdocsMUR/10044274470.pdf.

5

See General Counsel‟s Report #2, MUR 5908 (May 3, 2010), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274508.pdf. 

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was insufficient evidence to establish that “probable cause” existed (2 U.S.C. § 437g(a)(4)(A)) 

and, exercising its prosecutorial discretion in light of the minimal nature of any potential 

violation and other factors, determined to take no further action and close the file. Five of the six 

Commissioners voted to dismiss the administrative complaint; the sixth Commissioner did not 

vote.6 

In a letter dated July 23, 2010, the Commission notified plaintiffs of the dismissal of MUR 

5908.7 The notification stated, inter alia, that the Commission had “instituted an investigation,” 

but, “after considering the circumstances of this matter,” had determined to take no further action 

and had closed the file on June 29. Id. The July 23 letter also informed plaintiffs that materials 

related to the matter would be placed on the public record within 30 days. Id.

On Monday, August 23, 2010, the five Commissioners who voted to dismiss the 

administrative complaint in MUR 5908 issued a joint statement of reasons, and the Commission 

made public portions of its file that further explain its June 2010 decision, as well as earlier 

decisions in the matter.8 The Commission posted documents from its administrative file on its 

website on August 23 and 24, and sent the statement of reasons to the administrative 

 

6 Certification of Commission Action, MUR 5908 (June 30, 2010), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274525.pdf; Statement of Reasons of Chairman 

Petersen and Commissioners Hunter, McGahn, Walther and Weintraub, MUR 5908 (Aug. 23, 

2010) (“Statement of Reasons”), attached as Exhibit (“Exh.”) 1 to this memorandum and also

available at http://eqs.nictusa.com/eqsdocsMUR/10044274546.pdf. 

7

Letter from Camilla Jackson Jones to Melanie Sloan, MUR 5908 (July 23, 2010), 

available at http://eqs.nictusa.com/eqsdocsMUR/10044274527.pdf. 

8

Statement of Reasons. See 11 C.F.R. § 111.20(a); see also Notice 2003-25, Statement of 

Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 Fed. Reg. 70426, 

70427 (Dec. 18, 2003), available at http://www.fec.gov/agenda/agendas2003/notice2003-

25/fr68n243p70426.pdf; Notice 2009-28, Statement of Policy Regarding Placing First General 

Counsel‟s Reports On The Public Record, 74 Fed. Reg. 66132 (Dec. 14, 2009), available at 

http://www.fec.gov/law/cfr/ej_compilation/2009/notice_2009-28.pdf. 

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complainants by facsimile and first-class mail on August 24.9 CREW reposted portions of these 

materials on a CREW website on August 27, 2010.10

2. Plaintiffs’ First Judicial Complaint

On August 11, 2010, less than two weeks after learning that their administrative 

complaint had been dismissed, plaintiffs initiated this lawsuit. (Complaint (“Compl.”) (Doc. 1).)

The complaint was filed eleven days before the Commission‟s regulatory deadline for making 

public materials from MUR 5908 and seventeen days before the statutory deadline (August 28, 

2010) for filing suit under 2 U.S.C. § 437g(a)(8)(B).11 

The sole issue plaintiffs raised in their original judicial complaint was the timing of the 

Commission‟s explanation of its dismissal of plaintiffs‟ administrative complaint in MUR 5908 

and of other administrative complaints. Plaintiffs relied on FECA and the APA. 

First, plaintiffs contended that the Commission‟s dismissal of MUR 5908 was contrary to 

law because the Commission did not explain its dismissal within the 60-day period under 

2 U.S.C. § 437g(a)(8)(B), thereby allegedly depriving them of that statutory right to judicial 

review. (Compl. ¶14; see also id. ¶¶ 48-49.) In their prayer for relief, plaintiffs sought both a 

declaration pursuant to 2 U.S.C. § 437g(a)(8) that the Commission‟s “dismissal of MUR 5908 

 

9

See generally http://eqs.nictusa.com/eqs/searcheqs (enter case number 5908). 

See also FEC Exh. 1, Letter from Assistant General Counsel Mark D. Shonkwiler to Melanie 

Sloan enclosing Statement of Reasons in MUR 5908 (Aug. 24, 2010).

10 See FEC Complaints, Fix the FEC, http://www.fixthefec.org/complaints (second entry 

dated August 27, 2010).

11 Under the Commission‟s procedures, since the Commission notified plaintiffs that their 

administrative complaint was dismissed by letter dated July 23, 2010, the date for making 

documents from the administrative file in the matter public was not until 30 days thereafter, 

i.e., Sunday, August 22, 2010, eleven days after plaintiffs filed this lawsuit. See 11 C.F.R. 

§ 111.20(a); Notice 2003-25, Statement of Policy Regarding Disclosure of Closed Enforcement 

and Related Files, 68 Fed. Reg. 70426, 70427 (Dec. 18, 2003), available at 

http://www.fec.gov/agenda/agendas2003/notice2003-25/fr68n243p70426.pdf

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without providing a Statement of Reasons or other explanation for the dismissal is contrary to 

law” and an order “[r]emand[ing] the matter to the FEC with an order to conform to the 

declaration within 30 days.” (Compl. at 14-15.)

 Second, plaintiffs alleged (Compl. ¶¶ 32-46) that the Commission engages in a “pattern 

and practice” of “knowingly failing to issue” an explanation for dismissing an administrative 

complaint within 60 days of dismissing the complaint; plaintiffs described other Commission 

enforcement matters that were closed in 2008 and 2009, only one of which involved an 

administrative complaint filed by CREW or Sloan. (Compl. ¶¶ 32-46; see also id. ¶¶ 52-56.) 

Plaintiffs sought declaratory and injunctive relief as to these “pattern and practice” allegations. 

(Compl. at 15 (Prayer for Relief (3)-(4)).)

3. The Commission’s First Motion to Dismiss

On October 12, 2010, the Commission moved to dismiss plaintiffs‟ judicial complaint 

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (FEC Mot. to Dismiss 

(Oct. 12, 2010) (Doc. 4).) The Commission argued that plaintiffs‟ claim that the agency failed to 

explain its dismissal of their administrative complaint became moot in August 2010 when the 

Commission made public a “statement of reasons” and other materials that explain its decision in 

MUR 5908. FEC Mem. (Oct. 12, 2010) (Doc. 4-1) at 9-11. These disclosures occurred before 

the statutory 60-day deadline for filing suit under section 437(g)(a)(8). The Commission argued 

that plaintiffs also lacked Article III standing to pursue this claim because they suffered no 

concrete injury as a result of the timing of the FEC‟s explanation of its dismissal, and because 

plaintiffs alleged no particular connection to the activities described in their administrative 

complaint that could have caused them any cognizable injury. Id. at 11-17.

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In addition, the Commission argued that FECA provided no jurisdiction for plaintiffs to 

pursue their generalized claim that the Commission engages in a “pattern and practice” of not 

explaining dismissals of administrative complaints within 60 days. As the Commission 

explained, the Act does not provide for the equitable relief that plaintiffs sought on behalf of 

other past and future administrative complainants. Id. at 18-20. The Commission also argued 

that the APA provided no basis for plaintiffs to pursue their “pattern and practice” allegations, 

which also failed to state a claim upon which relief can be granted. Id. at 21-23. And the 

Commission argued that plaintiffs lack Article III and prudential standing to pursue their 

generalized claim on behalf of other complainants. Id. at 23-26.

4. Plaintiffs’ Amended Complaint

On October 28, 2010, plaintiffs filed a new, two-count amended complaint. (Amended 

Complaint (“Am. Compl.”) (Doc. 9).) See Fed. R. Civ. P. 15(a)(1)(B).12 In their amended 

complaint, plaintiffs no longer claim that the Commission failed to provide an explanation within 

60 days of the dismissal of their administrative complaint. Instead, plaintiffs‟ new “Claim One” 

challenges the dismissal decision on the merits, alleging that it was “arbitrary, capricious, an 

abuse of discretion, and contrary to law in violation of 2 U.S.C. § 437g(a)(8)(A).” 

(See Am. Compl. ¶ 71.) In addition, plaintiffs‟ amended complaint expands their prior claim that 

the Commission had an unlawful “pattern and practice” of failing to provide explanations for 

dismissals of administrative complaints within 60 days of the dismissal. Plaintiffs now allege in 

their new Claim Two that 2 U.S.C. § 437g(a)(8) requires the FEC to provide complainants notice 

 

12 Plaintiffs also filed an opposition to the Commission‟s first motion to dismiss, arguing 

that the filing of their amended complaint superseded their original complaint and thereby 

mooted the Commission‟s motion to dismiss. (Plaintiffs‟ Opposition to Defendant‟s Motion to 

Dismiss (Oct. 28, 2010) (Doc. 8).) On November 3, 2010, the Court sua sponte denied the 

Commission‟s motion to dismiss without prejudice. 

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of any dismissal of their complaint and the basis for such a dismissal a full 60 days prior to the 

deadline for seeking judicial review. (See id. ¶¶ 74-78.) Describing the dismissals of additional 

administrative complaints filed by third parties in prior years (id. ¶¶ 56-67), plaintiffs claim that 

the Commission has an unlawful “policy and practice of failing to provide the statutorily 

mandated 60 days‟ notice of dismissals and the basis for such dismissals” (id. ¶ 77). Plaintiffs 

seek a declaration that the Commission‟s actions are contrary to law and an “injunction 

compelling defendant FEC to provide 60 days‟ notice of dismissals and a Statement of Reasons 

or other explanation for dismissing any complaint.” (Am. Compl. ¶ 78; see also id. at 21 (Prayer 

for Relief ¶¶ 3-4).)

III. THE COURT SHOULD DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF 

SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM 

UPON WHICH RELIEF CAN BE GRANTED 

Plaintiffs‟ amended complaint should be dismissed. Plaintiffs lack standing to pursue 

their claim that the Commission‟s dismissal of their administrative complaint in MUR 5908 was 

contrary to law because they have alleged no concrete and particularized injury. Instead, they 

seek merely to have the Commission compel two political committees to report known activity 

differently. Even if the plaintiffs could demonstrate standing, under the applicable highly 

deferential standard of review, they cannot show that the Commission acted contrary to law 

when it concluded that there was insufficient evidence to find a violation of FECA. And because 

any potential violation was de minimis, the agency acted well within its discretion in deciding not 

to proceed. 

Plaintiffs also lack standing to pursue their claim that FECA requires the Commission to 

provide administrative complainants with notice and an explanation of dismissals of their 

complaints 60 days before the deadline for seeking judicial review under 2 U.S.C. § 437g(a)(8). 

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In any event, plaintiffs‟ 60-day allegation fails to state a claim upon which relief can be granted 

because FECA does not support plaintiffs‟ unreasonable interpretation, which is contrary to 

D.C. Circuit precedent. Accordingly, the Court should dismiss this case pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6).

A. Legal Standards for Motions to Dismiss for Lack of Subject Matter 

Jurisdiction

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). Therefore, when reviewing a motion to dismiss for lack of subject matter jurisdiction, 

each court has “an affirmative obligation to ensure that it is acting within the scope of its 

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

quotation marks and citation omitted). In evaluating such a motion, courts review the complaint 

liberally and grant plaintiffs the benefit of all inferences that can be derived from the facts 

alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has 

jurisdiction over a claim, a court may consider materials outside the pleadings. Settles v. United 

States Parole Comm’n., 429 F.3d 1098, 1107 (D.C. Cir. 2005). 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).

B. Plaintiffs Have Alleged No Injury Sufficient to Support Article III Standing 

to Challenge the Dismissal of Their Administrative Complaint in MUR 5908

1. Plaintiffs Must Establish Article III Standing

“Any person” who believes that the Act has been violated may file an administrative 

complaint with the Commission, 2 U.S.C. § 437g(a)(1), but only complainants who have 

constitutional standing may seek judicial review under 2 U.S.C. § 437g(a)(8) of the 

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12

Commission‟s actions on the complaint. “Section 437g(a)(8)(A) does not confer standing; 

it confers a right to sue upon parties who otherwise already have standing.” Common Cause,

108 F.3d at 419; accord, e.g., CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007); Judicial Watch, 

Inc. v. FEC, 180 F.3d 277 (D.C. Cir. 1999). See Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83, 101 (1998) (holding that a plaintiff‟s standing must be determined to establish the 

court‟s jurisdiction before the court may hear the case and reach the merits); The Grand Council 

of the Crees of Quebec v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000) (same). 

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)). 

To withstand a motion to dismiss for lack of standing, a plaintiff must 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) (internal quotation marks omitted). 

Moreover, “[s]tanding is not dispensed in gross. Rather, a plaintiff must demonstrate standing 

for each claim he seeks to press and for each form of relief that is sought.” Davis v. FEC,

128 S. Ct. 2759, 2769 (2008) (internal quotation marks and citations omitted). 

To have Article III standing, a plaintiff must establish: “(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. (TOC), Inc., 528 U.S. 167, 180-181 

(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). The injury alleged 

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 15 of 40
13

cannot be remote, speculative, or abstract; it must have occurred or be certainly impending. 

NTEU v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). 

2. Plaintiffs Fail to Allege a Concrete and Particularized Injury 

under Article III

Plaintiffs‟ amended complaint, like their initial complaint, fails to allege an Article III 

injury. Plaintiffs appear to rest their effort to establish standing entirely on their general claim 

that the Commission‟s dismissal of MUR 5908 deprives them of information. (See Am. Compl. 

¶¶ 8-10.) The Supreme Court has held that certain plaintiffs suffered an injury-in-fact when 

“[t]here [wa]s no reason to doubt their claim that the information [they lacked] would help them 

(and others to whom they would communicate it) to evaluate candidates for public office.” 

FEC v. Akins, 524 U.S. 11, 21 (1998); see also, e.g., Judicial Watch, Inc. v. FEC, 

293 F. Supp. 2d 41, 46 (D.D.C. 2003) (defining “informational injury” as “that injury caused 

when voters are deprived of useful political information at the time of voting”). But here, 

plaintiffs do not meet the requirements for an Article III informational injury because they have 

not identified any specific information they allegedly lack, let alone how any missing 

information would be “useful in voting.” Common Cause, 108 F.3d at 418. 

Like the unsuccessful plaintiffs in Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001), 

and similarly situated plaintiffs in other cases in this Circuit, plaintiffs do not seek additional 

facts. Instead, they seek “a legal conclusion that carries certain law enforcement consequences,” 

id. at 1075, specifically the determination that certain travel expenses that plaintiffs already 

know were paid by PTS PAC should have been reported as in-kind contributions rather than 

merely as disbursements — the relief plaintiffs request in Claim One of their amended 

complaint. (See Am. Compl. ¶ 72.) Thus, plaintiffs‟ real desire is “for the Commission to „get 

the bad guys,‟ rather than disclose information.” Common Cause, 108 F.3d at 418. An interest 

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 16 of 40
14

in the proper enforcement of the law, however, is not a justiciable interest. “[T]he government‟s 

alleged failure to „disclose‟ that certain conduct is illegal by itself does not give rise to a 

constitutionally cognizable injury.” Id. at 417; accord, e.g., Wertheimer, 268 F.3d at 1074; 

Judicial Watch, 293 F. Supp. 2d at 47. 

Although CREW and Sloan generally allege an informational interest (see Am. Compl. 

¶¶ 8-10), their amended complaint does not allege a concrete injury from any particular missing 

information. The complaint states that plaintiff Sloan is a United States citizen and a registered 

voter and asserts that, as such, she “is entitled to receive all the information the FECA requires 

candidates to report publicly.” (Am. Compl. ¶ 10.) But the amended complaint nowhere 

connects this general assertion about Sloan as a voter to PTS PAC, the focus of plaintiffs‟ 

administrative complaint. An injury-in-fact must be “particularized” as well as “concrete.” 

Lujan, 504 U.S. at 560 (internal quotation marks and citation omitted). “[P]articularized” means 

that “the injury must affect the plaintiff in a personal and individual way.” Id. at 560 n.1. The 

amended judicial complaint specifies no supposedly missing information that would aid Sloan as 

an individual voter. And as for CREW, “[u]nlike the plaintiffs in FEC v. Akins . . ., who wanted 

certain information so that they could make an informed choice among candidates in future 

elections, CREW cannot vote; it has no members who vote; and because it is a § 501(c)(3) 

corporation under the Internal Revenue Code, it cannot engage in partisan political activity.” 

CREW, 475 F.3d at 339.13 

 

13 Plaintiffs‟ administrative complaint alleged additional reporting defects, but plaintiffs do 

not pursue those allegations in their judicial complaint and thus cannot rely upon them to 

demonstrate standing. In any event, none of the formerly alleged defects deprived plaintiffs of 

information that would support standing. Plaintiffs‟ administrative complaint alleged that PTS 

PAC and its treasurer had failed to disclose certain disbursements for television advertisements, 

but PTS PAC had already disclosed those disbursements on previous reports. (See Factual and 

Legal Analysis for PTS PAC and Meredith G. Kelley, as Treasurer, MUR 5908 (Feb. 19, 2009) 

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 17 of 40
15

Plaintiffs claim (Am. Compl. ¶ 42) that PTS PAC and Hunter for President should have 

reported approximately $10,200 in travel expenses paid by PTS PAC as in-kind contributions to 

Hunter for President, but plaintiffs already have the relevant facts and thus have suffered no 

informational injury. See Alliance for Democracy, 362 F. Supp. 2d at 145 (concluding that “the 

plaintiffs lack standing because they already have the information they are seeking and therefore 

have not suffered an informational injury”); Judicial Watch, 293 F. Supp. 2d at 47 (footnotes 

omitted) (noting that the plaintiff contributor was already “aware of the facts underlying his own 

alleged contributions to [the Senator‟s] campaign” and concluding therefore that his 

administrative complaint was “unlikely” to “yield additional facts about [the Senator‟s] alleged 

reporting violations”); CREW, 475 F.3d at 339-40. Even before plaintiffs filed their 

administrative complaint, PTS PAC‟s publicly available campaign finance filings provided some 

information about travel the committee financed. Statement of Reasons at 2. Nor can plaintiffs 

claim not to know that Hunter‟s “leadership PAC” paid for his speaking trips in late 2006 and 

early 2007. News reports revealed that fact and related facts, and plaintiffs cited those sources in 

their administrative complaint. Admin. Compl. ¶¶ 8, 25 and accompanying Exh. B, E.

Documents from MUR 5908 that the Commission released on its website also include the 

information. See Statement of Reasons and General Counsel‟s Report #2; CREW, 475 F.3d at 

339 (“any citizen who wants to learn the details of the transaction . . . can do so by visiting the 

 

at 6-7, available at http://eqs.nictusa.com/eqsdocsMUR/10044274439.pdf; General Counsel‟s 

Report #2 at 11-13; Statement of Reasons at 2.) Thus, plaintiffs suffered no informational injury 

from the Commission‟s decision not to pursue those alleged violations. The administrative 

complaint also alleged that PTS PAC had violated the Act by registering with the FEC as a 

multicandidate committee rather than as a candidate committee. But because PTS PAC was 

already registered and filing periodic reports with the Commission, plaintiffs again were not 

deprived of any information that would create standing. 

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16

Commission‟s website”). And plaintiffs‟ current judicial complaint points to no other facts

about MUR 5908 that might serve to support informational standing. 

The amended complaint also reveals plaintiffs‟ real goal: legal determinations that PTS 

PAC and Hunter for President violated the law by not reporting the travel payments as in-kind 

contributions. For example, the amended complaint states that CREW “seeks to expose the 

unethical and illegal conduct of those involved in government.” (Am. Compl. ¶ 6.) CREW 

asserts that it is “hindered in its programmatic activity” when the FEC “fails to properly 

administer the FECA‟s reporting requirements, which provide CREW with the only source of 

information to determine if . . . [a] regulated entity is complying with the FECA.” (Id. ¶ 9.) 

Sloan in effect describes herself as a violation detector: She is “personally committed to 

ensuring the integrity of federal elections.” (Id. ¶ 11.) She “reviews campaign finance filings 

and media reports to determine whether candidates and political committees comply with the 

FECA‟s requirements,” and, when she “discovers a violation of the FECA, she submits 

complaints against violators.” (Id.) Thus, the amended complaint asserts that plaintiffs are 

“harmed when the FEC fails to properly administer the FECA.” (Id. ¶ 12.) However, the 

Supreme Court has “consistently held that a plaintiff raising only a generally available grievance 

about government — claiming only harm to his and every citizen‟s interest in proper application 

of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him 

than it does the public at large — does not state an Article III case or controversy.” Lujan, 

504 U.S. at 573-74. 

Plaintiffs‟ prayer for relief further shows their law enforcement goal. They want the 

Commission to draw the legal conclusion that PTS PAC‟s disbursements were unlawful in-kind 

contributions. See Wertheimer, 268 F.3d at 1074-1075 (“[C]ounsel for appellants was asked 

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 19 of 40
17

what facts, specifically, were not being disclosed. Counsel responded that the „fact‟ of 

„coordination‟ was being withheld. But „coordination‟ appears to us to be a legal conclusion that 

carries certain law enforcement consequences.”). In particular, plaintiffs request “a declaratory 

order that defendant FEC‟s failure to require PTS PAC and Hunter for President to amend their 

FEC reports to reflect the receipt of in-kind contributions by PTS PAC to Hunter for President is 

contrary to law in violation of 2 U.S.C. § 437g(a)(8).” (Am. Compl. ¶ 72.)14 In other words, 

plaintiffs do not lack factual information, but merely disagree with the Commission about the 

legal consequences of the information they already have. The Commission found that there was 

insufficient evidence to conclude that the travel expenses at issue should be considered in-kind 

contributions, and that even if they were so considered, the amounts were de minimis and, in the 

exercise of its prosecutorial discretion, the agency decided to close MUR 5908. Statement of 

Reasons at 2. CREW and Sloan obviously disagree with the Commission‟s legal conclusions 

and its evaluation of the facts, but those disagreements cannot support plaintiffs‟ claim of an 

informational injury.15 As the D.C. Circuit has held, “[i]f the information withheld is simply the 

fact that a violation of FECA has occurred,” the plaintiff has not suffered the type of injury that 

satisfies the standing requirement. Common Cause, 108 F.3d at 417. 

 

14 The proposed declaratory relief covers Hunter for President, but, according to plaintiffs‟ 

own description of their administrative complaint, that complaint was “against” only PTS PAC 

and its treasurer. (See Am. Compl. ¶ 1.)

15 Plaintiffs‟ request that the Commission be ordered to require the two political committees 

to report this activity differently shows that plaintiffs have also failed to meet the redressability 

requirement for Article III standing. “[T]he Commission has no authority to order anyone to 

report anything. . . . The Commission‟s responsibility is to disclose what others report.” CREW, 

475 F.3d at 340. Even in a de novo enforcement action in federal district court, “[t]here is no 

requirement that the Commission seek, or that a court grant, a particular form of redress.” Id. 

Thus, it is speculative that a favorable decision would redress plaintiffs‟ alleged injury. See 

Friends of the Earth, 528 U.S. at 180-81.

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18

The Wertheimer decision controls this case. There, several individuals associated with 

“good government” groups alleged that the Commission had failed to identify certain 

disbursements by the major political parties as impermissible coordinated expenditures. Id.

at 1071-73. Relying on Akins, the plaintiffs contended that the Commission‟s failure deprived 

them of “required information about the source and amount of candidates‟ financing.” Id. The 

D.C. Circuit held, however, that the plaintiffs “do not really seek additional facts but only the 

legal determination that certain transactions constitute coordinated expenditures.” Id. at 1075. 

The plaintiffs lacked standing because they not only failed “to show . . . that they [we]re directly 

being deprived of any information,” but also that “the legal ruling they [sought] might lead to 

additional factual information.” Id. at 1074. CREW and Sloan have failed the same way here.

Therefore, this Court lacks jurisdiction under 2 U.S.C. § 437g(a)(8) to hear their challenge to the 

Commission‟s dismissal of MUR 5908.

C. Plaintiffs Cannot Show that the Dismissal of the Complaint in MUR 5908 

Was Contrary to Law or an Abuse of the Commission’s Discretion

In Claim One, plaintiffs allege that the Commission‟s “dismissal of the [administrative] 

complaint in MUR 5908 [was] arbitrary, capricious, an abuse of discretion, and contrary to law 

in violation of 2 U.S.C. 437g(a)(8)(A).” (Am. Compl. ¶ 71.) In particular, plaintiffs‟ amended 

complaint focuses on their claim that approximately $10,200 in travel expenses that PTS PAC 

paid in late 2006 and early 2007 were in-kind contributions to Hunter for President because 

Congressman Hunter had moved beyond “testing the waters” and become a presidential 

candidate (id. ¶¶ 42-51). Under the highly deferential standard of review applicable in this case, 

however, plaintiffs cannot meet their burden. 

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1. Standard of Review under 2 U.S.C. § 437g(a)(8)

In reviewing the Commission‟s dismissal of plaintiffs‟ administrative complaint under 

2 U.S.C. § 437g(a)(8), “[a] court may not disturb a Commission decision to dismiss a complaint 

unless the dismissal was based on an „impermissible interpretation of the [FECA] . . . or was 

arbitrary or capricious, or an abuse of discretion.‟” Common Cause, 108 F.3d at 415 (internal 

citation omitted); accord Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005); In re CarterMondale Reelection Comm., Inc., 642 F.2d 538, 542 (D.C. Cir. 1980); Akins v. FEC, __ F. 

Supp. 2d __, 2010 WL 3563109 (D.D.C. Sept. 6, 2010). See DSCC, 454 U.S. at 31, 37, 39. The 

“arbitrary and capricious” standard of review is “highly deferential” and “presume[s] the validity 

of agency action.” American Horse Prot. Ass’n, Inc. v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 

1990). “[T]he party challenging an agency‟s action as arbitrary and capricious bears the burden 

of proof.” San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 37 (D.C. Cir. 1986).

The Supreme Court has held that the Commission “is precisely the type of agency to 

which deference should presumptively be afforded.” DSCC, 454 U.S. at 37. See also Hagelin, 

411 F.3d at 243; Common Cause, 842 F.2d at 448. Thus, “in determining whether the 

Commission‟s action was „contrary to law,‟ the task for the [Court is] not to interpret the statute 

as it [thinks] best but rather the narrower inquiry into whether the Commission‟s construction [is] 

„sufficiently reasonable‟ to be accepted by a reviewing court.” DSCC, 454 U.S. at 39 (citations 

omitted). Unless “Congress has directly spoken to the precise question at issue,” the Court must 

defer to a reasonable construction by the Commission. Chevron, U.S.A., Inc. v. NRDC, 

467 U.S. 837, 842-844 (1984); see also FEC v. National Rifle Ass’n. of Am., 254 F.3d 173, 187 

(D.C. Cir. 2001). A court will find an abuse of discretion only when the agency cannot meet 

“its minimal burden of showing a „coherent and reasonable explanation for its exercise of 

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 22 of 40
20

discretion.‟” Carter/Mondale Presidential Committee, Inc. v. FEC, 775 F.2d 1182, 1185 

(D.C. Cir. 1985) (quoting MCI Telecom. Corp. v. FCC, 675 F.2d 408, 413 (D.C. Cir. 1982)). 

See also Common Cause v. FEC, 676 F. Supp. 286, 291 (D.D.C. 1986). 

2. The Commission’s Dismissal of Plaintiffs’ Administrative Complaint 

Was Lawful

In their administrative complaint, plaintiffs alleged that “[b]etween October 2006 and 

January 2007, Rep. Hunter traveled to the early presidential primary states of New Hampshire, 

Iowa and South Carolina on behalf of PTS PAC,” and asserted that Hunter was “using PTS PAC 

to „test the waters‟ for his presidential candidacy.” Admin. Compl. ¶¶ 8, 25. Plaintiffs‟ 

administrative complaint did not specifically allege that any of these disbursements violated 

the Act. See Admin. Compl. ¶¶ 23-37 (Counts I-IV); id. at 8-9 (Prayer For Relief). When it 

reviewed the complaint in January 2009, however, the Commission concluded that, since the 

Hunter Committee did not report any contributions or expenditures during the time that included 

Hunter‟s travel, but PTS PAC did report $20,185 in expenditures which might have been related 

to the travel, there was “reason to believe” that violations occurred.16 On January 28, 2009, 

the Commission therefore found that there was “reason to believe” that PTS PAC and its 

treasurer violated 2 U.S.C. § 441a and 11 C.F.R. § 110.2(b)(1) by making excessive in-kind 

contributions to Duncan Hunter for his presidential campaign in the form of payment of his 

travel costs in South Carolina in December 2006.17 See 2 U.S.C. § 437g(a)(2).18

 

16 Under the Act, the limit on cash and in-kind contributions by multi-candidate political 

committees to federal candidates and their authorized principal campaign committees is $5,000. 

See 2 U.S.C. § 441a and 11 C.F.R. § 110.2(b)(1).

17 See Certification (Jan. 30, 2009) at 1; Factual and Legal Analysis for PTS PAC at 3-5. 

18 The Commission also found “reason to believe” that Hunter and the Hunter committee 

violated the Act and Commission regulations by accepting and failing to report the alleged 

in-kind contributions. Certification (Jan. 30, 2009) at 1; Factual and Legal Analysis for the 

Honorable Duncan Hunter, MUR 5908 (Feb. 19, 2009) at 7, available at 

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21

The Commission conducted an investigation, see 2 U.S.C. § 437g(a)(2), and 

the Commission‟s General Counsel then made recommendations to the Commission, General 

Counsel‟s Report #2. In June 2010, the Commission declined to follow these recommendations 

and instead determined to take no further action and close the entire file in the entire matter. 

Certification (June 30, 2010). It is this decision which plaintiffs now challenge. Because the 

Commission rejected the General Counsel‟s recommendations, the Commissioners‟ statement of 

reasons serves as the basis for review of that decision. See supra p. 4.

The Commission‟s statement of reasons (Exh. 1) shows that the agency‟s decision to 

dismiss plaintiffs‟ administrative complaint in MUR 5908 was reasonable and not contrary to 

law. The statement includes specific factual findings and legal conclusions regarding the alleged 

violations that support the Commission‟s decision to dismiss the complaint, as well as an 

explanation of the Commission‟s decision to exercise its prosecutorial discretion. The 

Commission summarized its reasoning:

The Commission has determined that there is insufficient evidence to 

establish whether there is probable cause to believe that Congressman Hunter 

became a candidate before January 2007, or whether [the] travel disbursements by 

PTS PAC constituted in-kind contributions to the Hunter Committee. In addition, 

there is insufficient evidence to conclude whether Congressman Hunter failed to 

timely file his Statement of Candidacy. Moreover, the Commission notes that the 

Hunter Committee filed its Statement of Organization and disclosure reports in a 

timely manner, and all of the travel expenses at issue were publicly disclosed on 

PTS PAC‟s disclosure reports. 

Even if the investigation had established a violation of the Act, given the 

relatively small amount of the disbursements at issue, the evidence suggesting that 

 

http://eqs.nictusa.com/eqsdocsMUR/10044274473.pdf; Factual and Legal Analysis for Hunter 

for President, Inc. and Bruce Young, as Treasurer, MUR 5908 (Feb. 19, 2009) at 7, available at

http://eqs.nictusa.com/eqsdocsMUR/10044274484.pdf; Statement of Reasons at 1. The 

Commission also considered allegations that certain television advertisements by PTS PAC were 

excessive in-kind contributions and were not properly reported, but the Commission declined to 

find reason to believe as to those allegations at that time. Certification (Jan. 30, 2009); Factual 

and Legal Analysis for PTS PAC at 3-6. Plaintiffs have not challenged that decision.

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22

the disbursements may have been legitimate PTS PAC expenses, the fact that the 

Statement of Candidacy was filed, at most, only three-days late and the timely 

filing of the Hunter Committee‟s Statement of Organization and disclosure 

reports, the Commission voted to exercise its prosecutorial discretion and take no 

further action in this matter and close the file. 

Statement of Reasons at 2. 

With respect to the travel expenses that are the focus of plaintiffs‟ court challenge, the 

Commission noted that its administrative investigation in MUR 5908 established that PTS PAC 

made only approximately $10,200 in expenditures for travel expenses during the time that 

Congressman Hunter was testing the waters for his presidential campaign. Statement of 

Reasons at 2-3. PTS PAC and the other administrative respondents stated that Congressman 

Hunter undertook this travel in his capacity as honorary chairman of PTS PAC to publicize the 

PAC‟s views on public policy issues, and that the travel was undertaken in connection with 

PTS PAC‟s advertising campaign. Id. The Commission concluded that there was insufficient 

evidence to conclude that there was “probable cause” to believe, see 2 U.S.C. § 437g(a)(4) —

a higher standard than “reason to believe” under section 437g(a)(2) — that the travel 

disbursements by PTS PAC were excessive in-kind contributions to the Hunter Committee. 

Statement of Reasons at 2.19

The Commission also concluded that any disbursements benefiting both the presidential 

campaign and PTS PAC would have been allocable between the two committees. So if 

PTS PAC and the Hunter Committee had benefited equally from the disbursements, permissible 

 

19 The Commission also concluded that “[e]ven if the investigation had established that 

PTS PAC‟s payments for Congressman Hunter‟s travel in October 2006 to January 2007 were all 

in-kind contributions to the Hunter Committee, those payments did not exceed $5,000 until 

January 5, 2007 at the earliest.” Statement of Reasons at 4. Thus, the Commission concluded 

that even if the expenditures by PTS PAC constituted in-kind contributions to Hunter, he did not 

become a candidate for president, and thereby become required to file a statement of candidacy,

until a few days before his statement of candidacy was actually filed. Id.

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23

allocation would reduce the amount of potentially excessive contributions to just over $100.20 

In light of the relatively small amount potentially in violation, the Commission voted to exercise 

its prosecutorial discretion and take no further action as to the allegations regarding excessive 

in-kind contributions by PTS PAC to Hunter and the Hunter committee. Statement of 

Reasons at 3.21 This decision was entirely reasonable in light of the “„venerable maxim de 

minimis non curat lex (“the law cares not for trifles”) [which] is part of the established 

background of legal principles against which all enactments are adopted, and which all 

enactments (absent contrary indication) are deemed to accept.‟” CREW, 475 F.3d at 340 

(quoting Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992)). 

Plaintiffs‟ amended complaint (¶¶ 42-46, 51) devotes a few paragraphs to the 

Commission‟s statement of reasons, but plaintiffs‟ criticisms fail to meet their heavy burden of

showing that the Commission‟s decision was an abuse of discretion. First, plaintiffs cite 

(id. ¶ 44) the Commission‟s “reason to believe” finding that PTS PAC may have violated the Act 

by making excessive in-kind contributions to Hunter in connection with the travel disbursements, 

 

20 If the $10,200 is allocated equally between the two committees, the amount allocable to 

each committee would be only $5,100. The $5,100 allocable to PTS PAC would exceed the 

committee‟s $5,000 limit on contributions to Hunter and the Hunter Committee by only $100.

21 Similarly, with respect to PTS PAC‟s expenditures for television advertisements, the 

Commission‟s statement of reasons noted that the agency had found in January 2009 that there 

was “insufficient basis to find reason to believe that the television advertisements paid for by 

PTS PAC were related to Hunter‟s presidential election campaign, thereby constituting excessive 

contributions to the Hunter Committee, and the Commission voted to take no action as to those 

allegations.” Statement of Reasons at 1-2 (citing Factual and Legal Analysis for PTS PAC 

at 6-7). The statement of reasons added that “[t]he Commission‟s investigation did not establish 

that these advertisements violated the Act.” Id. at 2. The statement of reasons cited the 

May 2010 General Counsel‟s Report, which concluded that “[a]lthough the content and timing of 

the advertisements appeared to have some nexus with Hunter‟s soon-to-be declared campaign, in 

that they were narrated by Hunter and aired in some of the primary states, [that] was not 

sufficient basis for this Office to recommend that the Commission find reason to believe the 

advertisements violated the Act.” General Counsel‟s Report #2 at 3. Again, plaintiffs do not 

challenge this conclusion.

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24

but that was, by definition, only a preliminary finding: a low threshold indicating that an 

investigation is warranted. Plaintiffs state that the Commission “concluded, without citing to any 

evidence, that because these travel disbursements also advanced PTS PAC‟s core mission, they 

were allocable between the two committees.” (Am. Compl. ¶ 43.) However, plaintiffs ignore 

the fact that the respondents stated in writing that Hunter undertook this travel in his capacity as 

honorary chairman of PTS PAC to publicize the PAC‟s views on public policy issues, Statement 

of Reasons at 2 (citing Hunter Affidavit), and the Commission concluded that “[n]othing 

revealed in the Commission‟s investigation contradicts the conclusion that the travel 

disbursements advanced PTS PAC‟s core mission,” id. at 3. Plaintiffs fail to cite any evidence 

undermining the Commission‟s conclusion that the travel expenses furthered PTS PAC‟s 

mission, which supports the conclusion that the travel expenses were at least partially allocable 

to PTS PAC. Plaintiffs also fail to refute the Commission‟s estimation that, if allocable, the 

expenditures would have been allocable equally between the two committees. Thus, plaintiffs 

have not refuted the Commission‟s conclusion that, most likely, the excessive contribution would 

have been only $100.

Plaintiffs‟ amended complaint (¶ 44) also argues that in determining whether there was 

sufficient evidence to establish that Congressman Hunter had failed to timely file his Statement 

of Candidacy, the Commission “[i]gnor[ed] the multiple examples of statements by 

Congressman Hunter set forth in the First General Counsel‟s Report indicating he was a 

candidate for president months before his presidential campaign registered with the FEC.” 

However, even the reported late 2006 statements of Congressman Hunter that plaintiffs cite 

(id. ¶ 49) do not clearly show a final decision to run or that he actually was a candidate, as 

opposed to a person preparing or planning to run. For example, the Congressman‟s single 

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25

statement at a news conference — “I am also going to be preparing to run for president” (see id.) 

— is doubly couched: He does not say he is running now, but that he is “going to be preparing” 

to run. The Commission‟s determinations were entirely reasonable, even if other reasonable 

minds might have reached a different conclusion.

22

Plaintiffs also assert that “[d]espite the FEC‟s finding that PTS PAC had made illegal 

excessive contributions to the Hunter for President campaign, neither PTS PAC nor Hunter for 

President has ever amended its FEC reports to reflect the in-kind contributions by PTS PAC to 

Hunter for President.” (Am. Compl. ¶ 51.) However, the “finding” plaintiffs cite was not a 

finding of illegality, but merely that there was “reason to believe” a violation had occurred, 

based upon the administrative complaint and the responses to the complaint before the 

Commission conducted its investigation. The “reason to believe” determination is a threshold 

determination that further investigation is warranted, not a final agency determination on the 

issue. See Spannaus v. FEC, 641 F. Supp. 1520, 1529 (S.D.N.Y. 1986) (citing FTC v. Standard 

Oil Co. of Cal., 449 U.S. 232, 241 (1980); other citations omitted). In any case, plaintiffs‟ 

administrative complaint included no allegation that the Hunter Committee committed reporting

violations, so plaintiffs cannot challenge the Commission‟s dismissal on this point under 

section 437g(a)(8).

 

22 Plaintiffs‟ “Claim One” and prayer for relief do not include a request that either 

Congressman Hunter or the Hunter Committee be pursued for an alleged failure to file a timely 

statement of candidacy. Indeed, the administrative complaint did not name either Congressman 

Hunter or the Hunter Committee as respondents, and did not allege that either had violated 

the Act. Thus, the only possible relevance of the timing of Congressman Hunter‟s statement of 

candidacy is its indirect effect on determining the extent of the alleged excessive in-kind 

contributions from PTS PAC — i.e., the earlier he crossed the line from “testing the waters” to 

actual candidate, the sooner any allocable portion of travel expenses would be considered an 

in-kind contribution to the Congressman in his capacity as a candidate for president.

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26

The Commission‟s dismissal of MUR 5908 was a proper exercise of the agency‟s 

prosecutorial discretion, and plaintiffs‟ amended complaint does not directly argue to the 

contrary. The Commission, like other federal agencies, has prosecutorial discretion. CREW, 

475 F.3d at 340 (“No one contends that the Commission must bring actions in court on every 

administrative complaint. The Supreme Court in Akins recognized that the Commission, like 

other Executive agencies, retains prosecutorial discretion.”) (citing Akins, 524 U.S. at 25.)). 

The exercise of authority to determine the direction and extent of an investigation “involves a 

complicated balancing of a number of factors which are peculiarly within [the agency‟s] 

expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). These decisions require assessing

whether agency resources are best spent on this violation or another, whether the 

agency is likely to succeed if it acts, whether the particular enforcement action 

requested best fits the agency‟s overall policies, and, indeed, whether the agency 

has enough resources to undertake the action at all.

Id. See also In re Sealed Case, 838 F.2d 476, 510 (D.C. Cir. 1988) (quoting Wayte v. United 

States, 470 U.S. 598, 607 (1985), rev’d on other grounds sub. nom., Morrison v. Olson, 

487 U.S. 654 (1988)). Congress has not required the Commission to allocate its investigatory 

resources in any specific way, and “[t]he agency is far better equipped than the courts to deal 

with the many variables involved in the proper ordering of its priorities.” Heckler, 470 U.S. at 

831-832. Thus, under the Act, the Commission “clearly has a broad grant of discretionary power

in determining whether to investigate a claim or to bring a civil action under the statute.” 

Common Cause v. FEC, 655 F. Supp. 619, 623 (D.D.C. 1986), rev’d on other issues, 842 F.2d 

436 (D.C. Cir. 1988). In Orloski, 795 F.2d at 168, the D.C. Circuit concluded that the 

Commission is entitled to decide not even to begin an investigation based on a “subjective 

evaluation of claims.” “It is not for the judiciary to ride roughshod over agency procedures or sit 

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as a board of superintend[e]nce directing where limited agency resources will be devoted. 

[Courts] are not here to run the agencies.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986).

The Commission‟s decision not to pursue the allegations on which plaintiffs focus in this 

case was clearly a proper exercise of the agency‟s prosecutorial discretion. Plaintiffs seek to 

have two political committees re-label about $10,000 in reported activity from late 2006 and 

early 2007 as in-kind contributions, rather than merely disbursements. Even if this spending 

were considered in-kind contributions to a candidate who had finished “testing the waters,” the 

amount above the statutory limit would have been somewhere between about $100 and $5,000. 

In view of the Commission‟s many other duties and the deferential standard of review, the 

agency acted well within its discretion in declining to proceed. Claim One of plaintiffs‟ 

amended complaint should be dismissed.

D. The Court Lacks Jurisdiction under 2 U.S.C. § 437g(a)(8) to Decide 

Plaintiffs’ Groundless Claim that the Commission Must Provide 

Administrative Complainants 60 Days to File Suit after Notice and an 

Explanation of Dismissals 

1. Plaintiffs Lack Constitutional and Statutory Standing to Pursue 

Their Generalized “Policy and Practice” Claim on Behalf of 

Themselves and Others

Plaintiffs complain that the Commission failed to give them and certain other 

administrative complainants 60 days‟ notice of the dismissals of some of their complaints. 

Regarding the dismissal of MUR 5908, however, plaintiffs have failed to articulate a concrete 

and particularized injury stemming from the timing of the Commission‟s notice to plaintiffs. In 

any event, even if the Court were to find that plaintiffs were injured by having fewer days than 

they would have preferred to prepare this lawsuit, there is no relief the Court could order that 

would redress such an injury. Plaintiffs have now filed the instant lawsuit and amended their 

complaint. They have an opportunity to try to demonstrate standing to challenge the dismissal of 

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MUR 5908 and to argue that the dismissal was contrary to law. No further remedy is possible. 

Thus, plaintiffs cannot meet the redressability requirement for constitutional standing regarding 

the timing of the Commission‟s notification to them about MUR 5908.

Regarding administrative complaints filed by third parties, plaintiffs appear to rely on 

section 437g(a)(8) for authority to vindicate the alleged right of all administrative complainants 

to receive 60 days‟ notice of the basis for the dismissal of their complaints. Section 437g(a)(8), 

however, provides no statutory standing for plaintiffs‟ “policy and practice” allegations 

regarding other complainants, a claim that appears to be a re-named version of their original 

court complaint‟s “pattern and practice” claim. (See FEC Mem. (Doc. 4-1) at 17-26.) 

A special jurisdictional grant, section 437g(a)(8) departs from the usual rule that an 

agency‟s prosecutorial decisions are not judicially reviewable. See, e.g., Heckler, 470 U.S. 

at 831. It grants this Court jurisdiction to review Commission actions in limited circumstances. 

The Court may only consider a petition filed by an “aggrieved party,” that is, someone 

challenging the Commission‟s dismissal of or failure to act upon that person‟s own

administrative complaint. 2 U.S.C. § 437g(a)(8)(A). The statute also restricts the remedies 

available. The Court “may declare that the dismissal of the [petitioner‟s administrative] 

complaint or the failure to act [on the complaint] is contrary to law and may direct the 

Commission to conform with such declaration within 30 days. . . .” 2 U.S.C. § 437g(a)(8)(C). 

See Perot, 97 F.3d at 559 (“When the FEC‟s failure to act is contrary to law, we have interpreted 

§ 437g(a)(8)(C) to allow nothing more than an order requiring FEC action.”). If the Court takes 

those steps and the Commission fails to conform with the declaration, this Court‟s role ends. In 

that event, the administrative complainant may then bring, “in the name of such complainant,” a 

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civil action directly against the administrative respondent “to remedy the violation involved in 

the original [administrative] complaint.” 2 U.S.C. § 437g(a)(8)(C).

Plaintiffs‟ “policy and practice” allegations in this Court do not come within section 

437g(a)(8)‟s limited jurisdictional grant because plaintiffs cannot be “aggrieved” by the 

Commission‟s treatment of anyone‟s administrative complaint but their own. Plaintiffs also seek 

equitable remedies beyond the specific remedies — confined to a particular administrative 

complaint and complainant — authorized by section 437g(a)(8)(C). Thus, plaintiffs lack 

statutory standing to pursue such a claim under the Act. See Steel Co., 523 U.S. at 92 

(explaining that whether a statute provides a particular person a right to sue is an issue of 

statutory standing). Simply put, in enacting section 437g(a)(8), Congress did not authorize a 

court to adjudicate or a petitioner to pursue “policy or practice” allegations like the ones 

plaintiffs have presented on behalf of other persons. Cf. Am. Immigration Lawyers Ass’n v. 

Reno, 199 F.3d 1352, 1354, 1357-359 (D.C. Cir. 2000) (denying constitutional and prudential 

standing because, among other reasons, Congress apparently intended to preclude litigants from 

asserting the rights of others; in the Court of Appeals, the organizational plaintiffs sought only to 

advance the “rights of unnamed aliens who were or might be subject to the [challenged] statute 

and regulations”). “[W]hen Congress enacts a specific remedy when no remedy was previously 

recognized, . . . the remedy provided is generally recognized as exclusive.” Hinck v. United 

States, 550 U.S. 501, 506 (2007) (holding that remedy for taxpayer lies exclusively in Tax 

Court). Here, the exclusive remedy that FECA provides for an administrative complainant is a 

suit to challenge the disposition of that person‟s own complaint — not those of others.

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2. Plaintiffs’ Claim that the Commission Must Provide Notice and an 

Explanation of Administrative Dismissals 60 Days Prior to the 

Deadline for Seeking Judicial Review Is Groundless 

Even if the Court has jurisdiction to address plaintiffs‟ claim that the Commission must 

provide notice and an explanation of all its dismissals of administrative complaints 60 days 

before the deadline for seeking judicial review, the Court should dismiss plaintiffs‟ claim on the 

merits. Plaintiffs‟ claim would in effect require the agency to provide these materials the same 

day the Commissioners vote to dismiss, and their claim is completely unsupported by the statute 

— despite plaintiffs‟ repeated assertion that their interpretation is “statutorily mandated.” (See, 

e.g., Am. Compl. ¶ 2.) 

Under FECA, “[a]ny petition [for judicial review] shall be filed, in the case of a dismissal 

of a complaint by the Commission, within 60 days after the date of the dismissal.” 2 U.S.C. 

§ 437g(a)(8)(B). The section does not also state, “The Commission shall notify the 

administrative complainant of the dismissal and provide an explanation for the action on the day 

it dismisses the complaint.” Yet plaintiffs allege in effect that section 437g(a)(8)(B) should be 

construed as if it included those additional words. (See, e.g., Am. Compl. ¶¶ 2, 15.) The “short 

answer” to that claim “is that Congress did not write the statute that way.” United States v. 

Naftalin, 441 U.S. 768, 773 (1979). Because plaintiffs‟ interpretation “depends on the addition 

of words to a statutory provision which is complete as it stands,” plaintiffs‟ position would 

require “amendment rather than construction of the statute, and it must be rejected here.” 

Burlington N. R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 454, 463 (1987).

The absence of plaintiffs‟ proposed requirements in the judicial review provision 

contrasts starkly with the inclusion of specific time limits for Commission action in other 

provisions of section 437g. For example, in section 437g(a)(1), Congress directed the 

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Commission, “[w]ithin 5 days after receipt of a complaint,” to notify persons alleged in the 

complaint to have violated the Act. Cf. Russello v. United States, 464 U.S. 16, 23 (1983) 

(“[W]here Congress includes particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion” (internal quotation marks and citation 

omitted).). If Congress had wanted to impose that kind of requirement on the Commission, it 

would have done so.

In fact, plaintiffs‟ statutory interpretation is directly at odds with D.C. Circuit decisions 

interpreting section 437g(a)(8). In Spannaus v. FEC, 990 F.2d 643, 644 (D.C. Cir. 1993), the 

court rejected the contention that a petition for review of the dismissal of an administrative 

complaint was timely because it was filed within 60 days of the date petitioner received the 

Commission‟s notification. The Commission had voted to dismiss the complaint on January 9, 

1991, a notification letter was dated January 18, the letter arrived at petitioner‟s post office box 

on January 28, and petitioner retrieved it on February 2. Petitioner‟s court complaint was filed 

on April 2, 1991. Spannaus v. FEC, No. 91-0681, 1992 WL 71402, at *1 (D.D.C. Mar. 25, 

1992). The D.C. Circuit held that the 60-day review period began with the date of dismissal, and 

petitioner‟s contention that it should begin with the date of notification was “inconsistent with 

the plain meaning of the governing judicial review statute.” Spannaus, 990 F.3d at 644. Later, 

in Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995), the court, citing Spannaus, rejected a similar 

argument and noted that the statute “will support no other result.” Id. at 519. Thus, the court 

dismissed a petition as untimely where the notification letter was not received until seven days 

after the date of the Commission‟s dismissal. Id. See also, e.g., Jiminez v. Quarterman, 129 S. 

Ct. 681, 685 (2009) (citation omitted) (“As with any question of statutory interpretation, our 

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analysis begins with the plain language of the statute. . . . It is well established that, when the 

statutory language is plain, we must enforce it according to its terms.”) The Spannaus and 

Jordan decisions therefore foreclose plaintiffs‟ interpretation that the statute requires the 

Commission to notify plaintiffs of the dismissal of their administrative complaint by a date 

certain, much less at the very beginning of the 60-day judicial review period. 

Indeed, plaintiffs‟ interpretation would deny the Commission flexibility in timing its 

voting decisions and subsequent disclosure of its decision-making. Until the Commission votes 

to dismiss an administrative matter, it may not know how the majority of its members will vote 

and whether that majority will agree with the recommendations and reasoning of the General 

Counsel. Thus, until the vote takes place, the Commission may not know whether it will need to 

write its own statement of reasons or whether it will rely on the reasoning articulated by the 

General Counsel. See supra p. 4. Plaintiffs‟ interpretation of section 437g(a)(8) would require 

the Commission to somehow predetermine the very outcome that is subject to a vote, but there is 

no basis in either the text or structure of FECA to require that procedure, even if it were 

possible.23

Aside from the lack of support for plaintiffs‟ claim in the language of section 

437g(a)(8)(B), the interpretation plaintiffs urge is plainly unreasonable.24 If accepted, it would 

 

23 Moreover, FECA does not even require the Commission to provide a complainant 

personally with an explanation of a dismissal. Rather, section 437g(a)(4)(B) states that “[i]f the 

Commission makes a determination that a person has not violated this Act . . . , the Commission 

shall make public such determination” (emphasis added). 

24 Even if FECA were interpreted as merely silent on the point at issue, the Court would 

still have to construe the provision in the Commission‟s favor. Under Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), when a statute does not “directly address[ ] 

the precise question at issue,” courts must defer to an agency‟s filling of a statutory gap. Id. at 

843, 844. An agency‟s reasonable interpretation of its foundational statute prevails even over a 

challenger‟s equally reasonable interpretation. See, e.g., Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 

451, 458 (D.C. Cir. 1996). 

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interfere with the Commission‟s judgment as to how best to use its limited resources. For 

example, under plaintiffs‟ interpretation, after the Commission voted to close MUR 5908 on 

Tuesday, June 29, 2010, it appears that the agency would have been required by the next day to 

create and issue an explanation of its decision, and to collect, redact, and prepare for public 

release all other materials from the administrative record that explain the decision. Even if the 

Commission and its staff put aside other projects and worked only on MUR 5908, it is not clear

that these tasks could be completed under the extraordinarily expedited schedule plaintiffs 

propose.

Of course, the Commission should not have to abandon its other responsibilities — see, 

e.g., 2 U.S.C. §§ 437c(b)(1), 437d, 437f — to attend only to the ramifications of its dismissal of 

plaintiffs‟ complaint. And Congress has imposed a deadline for Commission action on some of 

its statutorily mandated tasks, including but not limited to other aspects of the agency‟s 

enforcement procedures (see, e.g., 2 U.S.C. §§ 437f(a), 437g(a)(1)-(4), 438(a)(4)), but not for the 

Commission‟s notification of administrative complainants. In light of its mission and 

obligations, the Commission has adopted an interim policy of placing documents from closed 

enforcement matters “on the public record as soon as practicable,” and “endeavor[s] to do so 

within thirty days of the date on which notifications are sent to complainants and respondents.”25 

The D.C. Circuit has generally declined to use its equitable powers to micromanage an agency‟s 

 

25 Notice 2003-25, Statement of Policy Regarding Disclosure of Closed Enforcement and 

Related Files, 68 Fed. Reg. 70426-70428 (Dec. 18, 2003), available at 

http://www.fec.gov/agenda/agendas2003/notice2003-25/fr68n243p70426.pdf. The Commission 

issued this Interim Policy Statement in response to the D.C. Circuit‟s invalidating 11 C.F.R. 

§ 5.4(a)(4), which stated that certain materials in enforcement cases would be placed on the 

Commission‟s “public record” “no later than 30 days from the date on which all respondents are 

notified the Commission has voted to close” a particular case. AFL-CIO v. FEC, 333 F.3d 168 

(D.C. Cir. 2003). The court invalidated the regulation for constitutional reasons unrelated to the 

timing clause.

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efforts to balance priorities, even in the face of a clear statutory timetable. See, e.g., In re Barr 

Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (viewing the agency delay as a consequence of the 

agency‟s allocation of its budgetary resources). Moving one person to the head of the queue 

necessarily demotes other persons in line. Plaintiffs cite no statutory language requiring the 

Commission to place them or any other administrative complainants at the head of the queue so 

that they receive an explanation of the dismissals at the very start of the 60-day period. 

In sum, plaintiffs‟ claim has no statutory basis, is contrary to D.C. Circuit precedent, and 

should be dismissed for failure to state a claim upon which relief can be granted.

E. Plaintiffs Cannot Pursue Their “Policy and Practice” Allegations

under the Administrative Procedure Act

In addition to invoking 2 U.S.C. § 437g(a)(8)(A), plaintiffs rely on the federal question 

jurisdictional statute, 28 U.S.C. § 1331, and the APA, 5 U.S.C. §§ 702, 706, to pursue their 

“policy and practice” claim. (Am. Compl. ¶ 3.)26 This claim fares no better under the APA than 

under FECA‟s section 437g(a)(8).

1. Because FECA Forbids the Relief Plaintiffs Seek, the APA 

Cannot Provide the Requested Remedy

A waiver of the government‟s sovereign immunity, 5 U.S.C. § 702 entitles “[a] person 

suffering legal wrong because of agency action, or adversely affected or aggrieved by agency 

action within the meaning of a relevant statute” to “judicial review thereof.” That provision also 

specifies, however, that “[n]othing herein . . . confers authority to grant relief if any other statute 

that grants consent to suit expressly or impliedly forbids the relief which is sought.” That 

exception to authority under the APA applies here. As demonstrated supra pp. 29-30, FECA‟s 

limited judicial review provision for challenges to the Commission‟s disposition of an 

 

26 Plaintiffs also cite 28 U.S.C. § 1336, but that provision applies only to Surface 

Transportation Board orders.

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administrative complaint forbids the broad declaratory and injunctive relief that plaintiffs seek. 

As FECA‟s plain language and the D.C. Circuit‟s Spannaus and Jordan decisions indicate

(see supra pp. 31-32), 2 U.S.C. § 437g(a)(8) does not require the Commission to notify an 

administrative complainant of the dismissal of her complaint 60 days before the deadline for 

filing an action to review the Commission‟s dismissal. It would thus contradict FECA to require 

the Commission to notify a complainant and provide the Commission‟s statement of reasons on 

the very day the Commission decides to dismiss the complaint. Consequently, the proviso to the 

APA‟s waiver of sovereign immunity applies, and the Court cannot grant the proposed “policy or 

practice” relief that FECA forbids. In other words, the APA cannot be used to circumvent 

section 437g(a)(8)‟s procedures — which give the Commission flexibility — and FECA‟s

comprehensive scheme for the Commission‟s processing of enforcement matters. See generally

2 U.S.C. § 437g. Plaintiffs therefore have no cause of action under the APA. 

2. Plaintiffs Lack Prudential Standing to Sue under the APA on 

Behalf of Third Parties

As noted earlier, plaintiffs have not alleged how they were “adversely affected or 

aggrieved” by the Commission‟s actions — a precondition for invoking the APA‟s waiver of 

sovereign immunity, 5 U.S.C. § 702. But even if their allegations suffice for that purpose, 

plaintiffs cannot meet the requirements of the limited exceptions to the prudential rule against 

third-party standing. Plaintiffs‟ “policy and practice” claim and the requested equitable relief 

rest on the interests of persons not before the Court — other administrative complainants whose 

complaints have been or may be dismissed. The federal courts generally prohibit a party from 

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

action. See, e.g., Warth v. Seldin, 422 U.S. at 499; Rumber v. District of Columbia, 595 F.3d 

1298, 1301 (D.C. Cir. 2010).

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A party seeking third-party standing must demonstrate both a “close” relationship with 

the person whose interests or rights are in 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). 

CREW and Sloan do not qualify for these exceptions. They have not alleged a “close” 

relationship with other FEC administrative complainants. By contrast, for example, trade 

associations and other membership organizations have been allowed, in certain circumstances, to 

protect the rights of their members. See, e.g., NAACP v. State of Alabama ex rel. Patterson,

357 U.S. 449 (1958) (holding that NAACP could assert members‟ constitutional right of 

association). However, nothing in plaintiffs‟ amended complaint alleges or suggests any 

connection at all between CREW or Sloan and other administrative complainants. In the absence 

of any relationship — let alone a “close” one — plaintiffs cannot justify their attempt to protect 

the interests of other complainants.27 Furthermore, “third parties themselves usually will be the 

best proponents of their own rights.” Singleton v. Wulff, 428 U.S. 106, 114 (1976) (plurality 

opinion of Blackmun, J.). The court complaint here provides no basis for concluding that these 

plaintiffs have a greater ability to litigate the alleged right of other administrative complainants 

to 60 days‟ notice and explanation than those complainants themselves. Plaintiffs have not 

alleged, for example, that other administrative complainants who wish to litigate this issue face 

any special hindrance. Plaintiffs thus lack prudential standing to pursue their “policy and 

practice” claim. 

 

27 Moreover, CREW does not allege that it is a membership organization seeking standing 

to vindicate the rights of its members. To bring such a claim, CREW would need to demonstrate 

that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it 

seeks to protect are germane to the organization‟s purpose; and (c) neither the claim asserted nor 

the relief requested requires the participation of individual members in the lawsuit.” Hunt v. 

Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

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37

IV. CONCLUSION

For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

the amended complaint in this matter. 

Respectfully submitted,

Phillip Christopher Hughey

Acting General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

/s/ Robert W. Bonham III

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

Vivien Clair

Attorney

 

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

November 15, 2010 (202) 694-1650

Case 1:10-cv-01350-RMC Document 11-1 Filed 11/15/10 Page 40 of 40
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON and ) 

MELANIE SLOAN, ) 

 ) 

 Plaintiffs, ) 

 ) No. 1:10-cv-01350-RMC 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

FEC EXHIBIT 1 

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