UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

REPRESENTATIVE TED LIEU, et al., )

)

Plaintiffs, ) Civ. No. 16-2201 (EGS)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

PLAINTIFFS’ COMPLAINT FOR LACK OF JURISDICTION

Defendant Federal Election Commission (“Commission”) hereby moves to dismiss this 

action pursuant to Federal Rule of Civil Procedure 12(b)(1) because the claims are moot and this 

Court thus lacks subject matter jurisdiction. In support of this motion, the Commission submits a 

Memorandum in Support of Its Motion to Dismiss Plaintiffs’ Complaint for Lack of Jurisdiction 

and a Proposed Order.

Respectfully submitted,

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

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

July 17, 2017

Jacob S. Siler

Attorney

jsiler@fec.gov

/s/ Sana Chaudhry

Sana Chaudhry

Attorney

schaudhry@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 1 of 10
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

REPRESENTATIVE TED LIEU, et al., )

)

Plaintiffs, ) Civ. No. 16-2201 (EGS)

)

v. )

) MEMORANDUM IN SUPPORT 

FEDERAL ELECTION COMMISSION, ) OF FEC’S MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN 

SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT 

FOR LACK OF JURISDICTION

 

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

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

July 17, 2017

Jacob S. Siler

Attorney

jsiler@fec.gov

Sana Chaudhry

Attorney

schaudhry@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 2 of 10
INTRODUCTION

Plaintiffs brought this action under 52 U.S.C. § 30109(a)(8) alleging that the Federal 

Election Commission (“Commission” or “FEC”) had failed to act on their administrative 

complaint, but now that the Commission has taken final action on that complaint, the case is 

moot and no longer presents a case or controversy that satisfies the requirements of Article III. 

See All. for Democracy v. FEC, 335 F. Supp. 2d 39, 42 (D.D.C. 2004) (dismissing case regarding 

FEC’s alleged failure to act as moot because the FEC had completed its final action). Because 

plaintiffs’ claims are moot, the Court is required to dismiss the case for lack of subject matter 

jurisdiction.

1

BACKGROUND

I. THE FEC AND THE FEDERAL ELECTION CAMPAIGN ACT

The Commission is a six-member independent agency vested with statutory authority 

over the administration, interpretation, and civil enforcement of the Federal Election Campaign 

Act (“FECA”) and other federal campaign-finance statutes. Congress authorized the 

Commission to investigate possible violations of the Act, 52 U.S.C. §§ 30109(a)(1)-(2).2 The 

 1 Rather than pursue their original allegations of delay, plaintiffs state that they seek to 

“replac[e]” them. (Mem. of P. & A. in Supp. of Pls.’ Mot. for Leave to File Am. Compl. at 2

(Docket No. 21-1).) As explained in the FEC’s concurrently filed opposition to plaintiffs’ 

Motion for Leave to File Amended Complaint (“Mot. to Amend”) (Docket No. 21), however, 

when the Court no longer has jurisdiction over a case it may not permit amendments or 

supplements to the complaint. Plaintiffs’ effort to introduce a new live dispute through its 

motion should be denied. In the alternative, as the FEC explains there, such an amendment 

would be futile and justice does not require that it be allowed.

2 Effective September 1, 2014, the provisions of FECA that were codified in Title 2 of the 

United States Code were recodified in a new title, Title 52. See Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.html. This 

submission cites provisions of the FECA as codified in new Title 52.

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 3 of 10
2

Commission has exclusive jurisdiction to initiate civil enforcement actions for violations of 

FECA in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6).

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

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

reviewing the complaint and any responses filed by respondents, the Commission evaluates

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 FEC may 

investigate the alleged violation; otherwise, the agency 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).

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

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

administrative complaint may file suit against 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. The second situation in which an administrative complainant 

may file suit occurs where the FEC decides to dismiss the complaint. In that event, FECA 

allows the complainant to challenge the dismissal. Id.

If a court finds that the Commission’s 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); FEC v. Rose, 806 F.2d 1081, 1084 (D.C. Cir. 1986). If 

the Commission fails to conform within that time period, the administrative complainant may 

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 4 of 10
3

bring a civil action to remedy the alleged violation. 52 U.S.C. § 30109(a)(8)(C); see FEC v. 

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

II. ADMINISTRATIVE PROCEEDINGS

As explained in their court complaint, plaintiffs filed an administrative complaint with 

the FEC on July 7, 2016, alleging that ten specific independent-expenditure-only political 

committees (commonly known as “super PACs”) had accepted contributions from contributors 

in excess of the $5,000 per contributor limit under 52 U.S.C. § 30116. (Compl. ¶¶ 4-6 (Docket 

No. 1).) The administrative complaint asked the Commission to reconsider its acquiescence to 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), which held that contribution 

limits under section 30116 were unconstitutional as applied to independent-expenditure-only 

political committees. The administrative complaint went on to ask that the Commission find that 

39 specific contributions to the named super PACs from 27 identified contributors constituted 

violations of FECA, and that the Commission “seek . . . declaratory and/or injunctive relief 

against future acceptance of excessive contributions” by the named respondents. (Compl. ¶¶ 1-2, 

11-23, 38-77, 78.) On March 16, 2017, the FEC’s Office of General Counsel submitted a report 

recommending that the Commission find no reason to believe that any administrative respondent 

had violated FECA. (See First General Counsel’s Report, available at https://cg-519a459a-0ea3-

42c2-b7bc-fa1143481f74.s3-us-gov-west-1.amazonaws.com/legal/murs/current/119515.pdf.) 

On May 25, 2017, the Commission voted five-to-zero to adopt that recommendation and dismiss

the administrative complaint. (Certification for Matter Under Review (“MUR”) 7101, May 25, 

2017, https://cg-519a459a-0ea3-42c2-b7bc-fa1143481f74.s3-us-gov-west1.amazonaws.com/legal/murs/current/119428.pdf.) The day after the Commission’s vote, 

counsel for the FEC notified plaintiffs by phone that the Commission had dismissed the 

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 5 of 10
4

administrative complaint and that pursuant to FEC regulations, plaintiffs would be receiving the 

basis for that decision by mail. (Jt. Stipulation at 2 (Docket No. 19).) On or about June 1, 2017, 

plaintiffs received by mail notification of the Commission’s decision along with the Factual and 

Legal Analysis providing the basis for that decision. (Id.) 

III. PLAINTIFFS’ JUDICIAL COMPLAINT

On November 4, 2016, exactly 120 days after filing their administrative complaint, 

plaintiffs filed this action seeking declaratory and injunctive relief against the FEC. (Compl. ¶¶ 

84, 86 (Docket No. 1).) Plaintiffs’ judicial complaint asked the Court to declare that the 

Commission’s failure to act on their administrative complaint was contrary to law under 52 

U.S.C. § 30109(a)(8)(A) and 5 U.S.C. § 706(1). (Id.) Plaintiffs also asked the Court “to order 

the FEC to conform with [such] declaration within 30 days.” (Id. ¶ 7.) 

During their scheduling conference, the parties disagreed regarding whether plaintiffs 

could continue this case in the event the Commission took final administrative action. (Jt. 

Scheduling Report at 2 (Docket No. 14).) The Court deferred resolution of that question in its 

Scheduling Order of March 22, 2017, by permitting plaintiffs only to file a motion to amend or 

supplement their complaint should they seek substantive review of an adverse final decision of 

the Commission. (Scheduling Order at 2 (Docket No. 16) (providing that “plaintiffs may . . . file 

a motion to amend or supplement their complaint”).) After the dismissal of MUR 7101, the 

parties agreed to a date by which plaintiffs could move to file such a motion and also agreed to a 

stay of other proceedings in the case. (Docket Nos. 19-20.) Plaintiffs moved for leave to file an 

amended complaint within that agreed deadline, on June 22, 2017. (Mot. to Amend (Docket No. 

21).)

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 6 of 10
5

ARGUMENT

I. STANDARD OF REVIEW

Under Article III, section 2, of the Constitution, federal courts may decide only “‘actual,

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

Cir. 2003) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). “A case becomes moot — and 

therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III — ‘when the issues 

presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” 

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 

(1982) (per curiam)). 

Cases must be dismissed as moot “[w]hen all the relief sought has been obtained.” Cueto 

v. Dir., Bureau of Immigration & Customs Enf’t, 584 F. Supp. 2d 147, 149–50 (D.D.C. 2008). 

That is because federal courts have no “power to render advisory opinions [or] ... decide 

questions that cannot affect the rights of the litigants in the case before them.” All. for 

Democracy, 335 F. Supp. 2d at 42 (quoting Nat’l Black Police Ass’n v. District of Columbia, 108 

F.3d 346, 349 (D.C. Cir. 1997)). Thus, “[e]ven where the litigation poses a live controversy 

when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events 

have so transpired that the decision will neither presently affect the parties’ rights nor have a 

more-than-speculative chance of affecting them in the future.” LaRoque v. Holder, 679 F.3d 

905, 907 (D.C. Cir. 2012) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)). 

Moreover, the court must evaluate mootness “‘through all stages’ of the litigation in order to 

ensure there remains a live controversy.” 21st Century Telesis, 318 F.3d at 198 (citing Lewis v. 

Cont’l Bank Corp., 494 U.S. 472, 477 (1990)); McBryde v. Comm. to Review Council Conduct, 

264 F.3d 52, 55 (D.C. Cir. 2001) (“If events outrun the controversy such that the court can grant 

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 7 of 10
6

no meaningful relief, the case must be dismissed as moot”); Newdow v. Roberts, 603 F.3d 1002, 

1008 (D.C. Cir. 2010) (reiterating the “basic constitutional requirement” that a dispute before a 

federal court be “‘an actual controversy . . . extant at all stages of review’ and ‘not merely at the 

time the complaint is filed’”) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974)). 

Even issues of “great public interest” do not confer federal jurisdiction over a moot case. 

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (citations and internal quotation marks omitted). 

And mootness of an action forecloses declaratory as well as injunctive relief. All. for 

Democracy, 335 F. Supp. 2d at 43-46.

If a case becomes moot, a party may move to dismiss under Federal Rule of Civil 

Procedure 12(b)(1). Rumber v. District of Columbia, 598 F. Supp. 2d 97, 111-12 (D.D.C. 2009) 

(citing Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 

1991)), aff’d, 595 F.3d 1298 (D.C. Cir. 2010). While the movant has the burden of proving 

mootness, a plaintiff must defend a motion to dismiss brought under Rule 12(b)(1) by 

establishing through a preponderance of the evidence that the court has jurisdiction over its 

claims. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). The court “may consider 

materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of 

jurisdiction” under Rule 12(b)(1). Citizens for Responsibility and Ethics in Washington v. SEC, 

858 F. Supp. 2d 51, 57 (D.D.C. 2012) (citations omitted).

II. THIS ACTION IS MOOT BECAUSE THE COMMISSION HAS ACTED ON 

PLAINTIFFS’ ADMINISTRATIVE COMPLAINT

The claims in plaintiffs’ judicial complaint are now moot because the Commission has 

completed final action on their administrative complaint. Plaintiffs’ lawsuit was brought 

pursuant to the portion of 52 U.S.C. §30109(a)(8) allowing for limited judicial review of whether 

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 8 of 10
7

an alleged “failure to act” by the Commission is “contrary to law.”3 Under section 30109(a)(8), 

the sole relief the district court may grant is a declaration that “the failure to act is contrary to 

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

30 days.” 52 U.S.C. § 30109(a)(8)(C); see Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) 

(“When the FEC’s failure to act is contrary to law, we have interpreted § [30109(a)(8)(C)] to 

allow nothing more than an order requiring FEC action”) (citing Rose, 806 F.2d at 1084); All. for 

Democracy, 335 F. Supp. 2d at 43. However, where the FEC has completed final action on the 

administrative complaint, “it can no longer be said to have ‘failed to act’” and “there is no relief 

that the Court could provide under [the statutory provision].” All. for Democracy, 335 F. Supp. 

2d at 42-43.

Here, there is no dispute that the Commission has completed final action in the

underlying administrative matter. (See supra pp. 4.) Therefore, there is no ongoing “‘failure to 

act’” by the Commission, plaintiffs have received the relief they requested, and it is no longer 

possible for the Court to grant additional relief in response to plaintiffs’ claims. All. for 

Democracy, 335 F. Supp. 2d at 43. In sum, because there is no longer a live controversy 

between the parties, this case is moot and should be dismissed.

4

 See id.; Fed. R. Civ. P. 

 3 The claims in the operative complaint contain no challenge pursuant to the other portion 

of section 30109(a)(8) for judicial review of Commission dismissals of administrative 

complaints. 

4 As in Alliance for Democracy, no exception to the mootness doctrine applies. The 

“capable of repetition, yet evading review” exception has two requirements: (1) “the challenged 

action must be too short to be fully litigated prior to cessation or expiration”; and (2) there must 

be a “reasonable expectation that the same complaining party [will] be subject to the same action 

again.” Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010) (citation and internal 

quotation marks omitted; alteration in original). Delay cases like this one are not too short to be 

fully litigated, and indeed, such cases have been fully reviewed by courts. See, e.g., Nat’l Cong. 

Club v. FEC, Nos. 84-5701, 84-5719, 1984 WL 148396, *1 (D.C. Cir. 1984); Democratic 

Senatorial Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 1998). There is also no evidence 

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 9 of 10
8

12(h)(3); Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996) 

(holding that when intervening events “make it impossible to grant the prevailing party effective 

relief,” the case becomes moot and the court no longer has jurisdiction). 

CONCLUSION

For the foregoing reasons, plaintiffs’ action is moot and the Court should grant the 

Commission’s motion to dismiss for lack of jurisdiction.

Respectfully submitted,

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

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Harry J. Summers 

Assistant General Counsel

hsummers@fec.gov

July 17, 2017

Jacob S. Siler

Attorney

jsiler@fec.gov

/s/ Sana Chaudhry 

Sana Chaudhry

Attorney

schaudhry@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

 

that plaintiffs are likely to be subject to the same action again by filing additional complaints on 

which the FEC might fail to act.

Case 1:16-cv-02201-EGS Document 24 Filed 07/17/17 Page 10 of 10