UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 11-951 (CKK) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION 

 ) 

 Defendant. ) 

____________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT 

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

Commission (“Commission”) respectfully moves this Court for an order dismissing the 

Complaint for failure to state a claim upon which relief can be granted. In the alternative, the 

Commission moves for summary judgment against Plaintiff under Rule 56. A Memorandum in 

Support of the Commission’s Motion is submitted as required by LCvR 7. A Statement of 

Material Facts as to Which There is No Genuine Dispute is also submitted in support of the 

Commission’s alternative motion for summary judgment, as required by LCvR 7.

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

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

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 1 of 22
/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 23, 2011 (202) 694-1650 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 2 of 22
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) Civil Action No. 11-951 (CKK) 

 Plaintiff, ) 

 ) 

 v. ) MEMORANDUM 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

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

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, DC 20463 

June 23, 2011 (202) 694-1650 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 3 of 22
‐i‐ 

TABLE OF CONTENTS 

Page 

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

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

B. CREW’s Request .........................................................................................2 

C. The Commission’s Response .......................................................................3 

II. CREW’S COMPLAINT SHOULD BE DISMISSED .............................................4 

A. Standard of Review ......................................................................................4 

B. CREW’s Claim is Moot ...............................................................................6 

C. CREW Failed to Exhaust Administrative Remedies ...................................6 

III. CONCLUSION ......................................................................................................11 

 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 4 of 22
‐ii‐ 

TABLE OF AUTHORITIES 

Page 

Cases 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....................................................................5 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..............................................................5 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. 4-5 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..........................................................................5 

Crooker v. U.S. State Dep’t, 628 F.2d 9 (D.C. Cir. 1980) .........................................................6 

Defenders of Wildlife v. Dep’t of Agric., 311 F. Supp. 2d 44 (D.D.C. 2004) ............................5 

Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472 (D.C. Cir. 1986) ...................................7, 11 

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995) .................................................................5 

Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002) .............................................................................6 

Erickson v. Pardus, 551 U.S. 89 (2007) ....................................................................................5 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002) ................................................5 

Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) .......................................................................6 

Kassem v. Wash. Hosp. Ctr., 513 F.3d 251 (D.C. Cir. 2008) ....................................................5 

Los Angeles Cnty. v. Davis, 440 U.S. 625 (1979) ......................................................................6 

Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) ....................6, 7, 8, 9, 10, 11 

Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ..........................................................................6 

Petit-Frere v. U. S. Attorney’s Office for S.D. of Fla., 

 664 F. Supp. 2d 69 (D.D.C. 2009) .............................................................................8, 9, 10 

United States v. Tucker Truck Lines, 344 U.S. 33 (1952) .........................................................7 

Weinberger v. Salfi, 422 U.S. 749 (1975) ............................................................................7, 10 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 5 of 22
‐iii‐ 

Statutes and Regulations 

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-457 ................................................2

2 U.S.C. § 437c(a)......................................................................................................................2 

2 U.S.C. § 437c(b)(1) .................................................................................................................2 

2 U.S.C. § 437d(a)(7) .................................................................................................................2 

2 U.S.C. § 437d(a)(8) .................................................................................................................2 

2 U.S.C. § 437f ..........................................................................................................................2 

2 U.S.C. § 437g ..........................................................................................................................2 

2 U.S.C. § 438(a)(8) ...................................................................................................................2 

Freedom of Information Act, 5 U.S.C. § 552 ....................................................................1, 2, 7 

5 U.S.C. § 552(a)(4)(B) ......................................................................................................... 7-8 

5 U.S.C. § 552(a)(6)(A) .........................................................................................................7, 8 

5 U.S.C. § 552(a)(6)(A)(i) .........................................................................................................7 

5 U.S.C. § 552(a)(6)(A)(ii) ........................................................................................................7 

5 U.S.C. § 552(a)(6)(C) .............................................................................................................8 

11 C.F.R. § 4.8 ...........................................................................................................................8 

11 C.F.R. § 7.15(c).....................................................................................................................3 

11 C.F.R. § 7.15(d) ....................................................................................................................3 

11 C.F.R. § 201.3(c)...................................................................................................................3 

11 C.F.R. § 201.4(a)...................................................................................................................3 

Fed. R. Civ. P. 12(b)(6)..............................................................................................................4 

Fed. R. Civ. P. 56(c) ..................................................................................................................5 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 6 of 22
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) Civil Action No. 11-951 (CKK) 

 Plaintiff, ) 

 ) 

 v. ) MEMORANDUM 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) has received all 

the materials to which it is entitled under the Freedom of Information Act (“FOIA”), 5 U.S.C. 

§ 552. Its pending claim is thus moot and the Court should grant summary judgment for the 

Commission. Even if CREW’s claim were not moot, its complaint should be dismissed because 

CREW has failed to exhaust its administrative remedies. Once a government agency replies to a 

FOIA request and indicates that it is in the process of responding, the requester must actually 

exhaust available administrative remedies, allowing the agency to exercise its discretion and 

preventing premature interference with agency processes. CREW submitted its FOIA request to 

the Commission on March 7, 2011. Over the next three weeks, the Commission and CREW 

communicated extensively, beginning two days after CREW submitted its request. The 

Commission acknowledged receipt of the request, negotiated an agreement to narrow the search 

for responsive documents, and assured CREW that it would provide documents on a rolling 

1 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 7 of 22
basis. Because the Commission indicated it was responding to CREW’s request and CREW 

failed to exhaust its administrative remedies before bringing suit, CREW’s complaint should be 

dismissed for failing to state a claim. 

I. BACKGROUND 

A. The Federal Election Commission 

The FEC is the agency of the United States government vested with statutory authority 

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

Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457, and other federal campaign finance statutes. The 

Commission is empowered to “formulate policy” with respect to FECA, 2 U.S.C. § 437c(b)(1); 

“to make, amend, and repeal such rules . . . as are necessary to carry out the provisions of 

[FECA],” 2 U.S.C. §§ 437d(a)(8), 438(a)(8); to issue advisory opinions concerning the 

application of FECA or the Commission’s regulations to proposed transactions or activities, 

2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. § 437g. The Commission is 

composed of six commissioners appointed by the President with the advice and consent of the 

Senate. 2 U.S.C. § 437c(a). No more than three members of the Commission may be affiliated 

with the same political party. Id. 

B. CREW’s Request 

On March 7, 2011, CREW submitted a request to the Commission under the Freedom of 

Information Act, 5 U.S.C. § 552, seeking various categories of records related to 

communications between three Commission members and individuals and entities outside the 

Commission. Compl. ¶ 1. CREW describes itself as a nonprofit corporation “committed to 

protecting the right of citizens to be informed about the activities of government officials and to 

ensuring the integrity of government officials.” Id. ¶ 4. In its request, CREW sought: 

2 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 8 of 22
• Correspondence related to any business between Commissioners Matthew S. Petersen, 

Caroline C. Hunter, and Donald F. McGahn and any individual or entity outside the 

Commission from the date each Commissioner took office; 

• All calendars, agendas, or other records of the schedules of these three Commissioners; 

• All written ex parte communications delivered to any agency ethics official by any of 

these Commissioners, or by anyone acting on their behalf pursuant to Commission 

regulations 11 C.F.R. §§ 7.15(c), 201.3(c), and 201.4(a); and 

• All statements setting forth the substance and circumstances of any oral ex parte 

communication prepared by any of these Commissioners or someone acting on their 

behalf and delivered to an agency ethics official pursuant to Commission regulations, 11 

C.F.R. §§ 7.15(d), 201.3(c), and 201.4(a). 

C. The Commission’s Response 

The day after receiving CREW’s request, the Commission emailed CREW to 

acknowledge receipt of the request and to inform CREW that its application for a fee waiver had 

been granted. Compl. ¶ 17. As CREW notes in its complaint, in “subsequent conversations and 

communications” with FEC Assistant General Counsel Nicole St. Louis Matthis, CREW agreed 

to exclude certain categories of documents from the Commission’s initial search for responsive 

records. Id. ¶¶ 18-19. This agreement was reached through five conversations between Ms. 

St. Louis Matthis and CREW, the first of which took place on March 9, two days after CREW 

submitted its FOIA request.1

 St. Louis Matthis Decl. ¶¶ 2-6. In that March 9 conversation, Ms. 

 

1

 By March 29, 2011, CREW indicated by letter that it had agreed to exclude from its 

request: (1) correspondence sent by one of the named commissioners in a federal campaignrelated matter or rulemaking proceeding solely in his or her authorized capacity as Commission 

Chair or Vice Chair, (2) correspondence docketed in a federal campaign related matter or 

rulemaking proceeding and received by one of the named commissioners solely as a carbon 

copy, and (3) correspondence forwarding official reports to other government agencies or 

Congress and signed by one of the named commissioners solely in his or her authorized capacity 

as Chair or Vice Chair, such as agency privacy reports or budget justifications. Compl. ¶ 18. 

CREW subsequently further clarified that it was excluding from the request correspondence 

docketed in a federal campaign-related matter or rulemaking proceeding and received by all the 

commissioners. Id. ¶ 19. 

3 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 9 of 22
Matthis informed CREW that the Commission would provide responsive materials on a rolling 

basis. Id. ¶ 2. In two additional conversations on March 14 and March 18, 2011, Ms. Matthis 

continued to discuss which categories of documents CREW would allow the Commission to 

exclude from its initial search. In these two additional conversations she reiterated that the 

Commission would provide documents on a rolling basis. Id. ¶ 3. 

 On May 4, 2011, Commission attorney Katie Higginbothom became the point of 

contact for CREW’s request because Ms. St. Louis Matthis was preparing to leave her position 

with the Commission in early June. Higginbothom Decl. ¶ 2. Ms. Higginbothom called CREW 

that day and informed them that the Commission was still in the process of searching for 

responsive documents. Id. ¶ 3. She also informed CREW that the Commission had located 

thousands of potentially responsive documents that the Commission was in the process of 

reviewing. Id. She further indicated her hope that the review would allow for provision of the 

first batch of documents within a matter of weeks. Id. On May 23, 2011, CREW filed its 

complaint in this matter. On June 15, 2011, the Commission provided CREW with 386 pages of 

responsive materials. Id. ¶ 6. On June 21, 2011, the Commission sent to CREW a second batch 

of responsive documents consisting of 354 pages of materials in electronic form. Id. ¶ 7. And 

on June 23, 2011, the Commission sent CREW a third and final batch of responsive documents 

consisting of 95 pages of materials in electronic form. Id. ¶ 8. 

II. CREW’S COMPLAINT SHOULD BE DISMISSED 

A. Standard of Review 

Dismissal of a complaint is appropriate where, accepting the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to 

state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. 

4 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 10 of 22
Twombly, 550 U.S. 544, 558 (2007) (holding dismissal appropriate “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief”); Kassem v. Wash. 

Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. Pardus, 551 U.S. 89, 93 

(2007)). In deciding a motion to dismiss, the court may consider the complaint and documents 

referenced in the complaint. See Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 

2002) (noting that court may consider on motion to dismiss documents “incorporated by 

reference in the complaint”). 

Summary judgment is appropriate when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The court must view the record in the 

light most favorable to the party opposing the motion, giving the non-movant the benefit of all 

favorable inferences that can reasonably be drawn from the record and the benefit of any doubt 

as to the existence of any genuine issue of material fact. Defenders of Wildlife v. Dep’t of Agric., 

311 F. Supp. 2d 44, 53 (D.D.C. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 

157-159 (1970)). “To determine which facts are ‘material,’ a court must look to the substantive 

law on which each claim rests.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986)). “A ‘genuine issue’ is one whose resolution could establish an element of a claim or 

defense and, therefore, affect the outcome of the action.” Id. (citing Celotex, 477 U.S. at 322, 

and Anderson, 477 U.S. at 248). 

5 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 11 of 22
B. CREW’s Claim is Moot

Because CREW has received all the documents to which it is entitled under FOIA, its 

claim is now moot and must be dismissed. A case becomes moot when the issues presented are 

no longer live or the parties lack a legally cognizable interest in the outcome. Los Angeles Cnty. 

v. Davis, 440 U.S. 625, 631 (1979). In FOIA cases generally, “Once the records are produced 

the substance of the controversy disappears and becomes moot since the disclosure which the 

suit seeks has already been made.” Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980). 

On June 23, 2011, the Commission delivered by courier to CREW the last batch of nonexempt 

materials it sought. See Higginbothom Decl. ¶ 9.2

 Having done so, CREW’s claims no longer 

present a live controversy and are moot. See Drake v. FAA, 291 F.3d 59, 62 (D.C. Cir. 2002) 

(holding that FOIA requests are moot once requester “received all the documents to which he is 

entitled”); Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (explaining that once the 

disclosure which the suit seeks has been made the controversy is rendered moot). 

C. CREW Failed to Exhaust Administrative Remedies 

Even if CREW had not already received all the documents to which is entitled under 

FOIA, CREW’s complaint would merit dismissal because CREW did not exhaust administrative 

remedies before bringing suit. Potential litigants must generally exhaust administrative remedies 

before filing suit in federal court in order to give an agency “an opportunity to exercise its 

discretion and expertise on the matter and to make a factual record to support its decision.” 

Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the 

Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). Exhaustion “allows the top managers of an agency to 

 

2

 The Commission treated correspondence of the type that CREW agreed to exclude from 

the Commission’s initial search as unresponsive to CREW’s request. See Higginbothom Decl. 

Exh. 2. 

6 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 12 of 22
correct mistakes made at lower levels and thereby obviates unnecessary judicial review.” 

Oglesby, 920 F.2d at 61 (D.C. Cir. 1990). “[I]t would be both contrary to ‘orderly procedure and 

good administration’ and unfair ‘to those who are engaged in the tasks of administration” to 

decide an issue which the [agency] never had a fair opportunity to resolve prior to being ushered 

into litigation.” Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986) 

(quoting United States v. Tucker Truck Lines, 344 U.S. 33, 36-37 (1952)). In short, the 

exhaustion requirement “prevent[s] premature interference with agency processes.” Weinberger 

v. Salfi, 422 U.S. 749, 765 (1975). 

“It goes without saying that exhaustion of [administrative] remedies is required in FOIA 

cases.” Dettmann, 802 F.2d at 1476. In such cases, requesters may not bring suit until they have 

actually or constructively exhausted their administrative remedies. Regarding the former, FOIA 

section § 552(a)(6)(A) sets forth the time limits that apply to requests and provides for an 

administrative appeal process of agency denials at the conclusion of which a requester can file 

suit. This provision specifies that upon receiving a request, an agency must determine within 

twenty days whether to comply with the request, at which time the agency shall inform the 

requester “of such determination and the reasons therefor, and of the right of such person to 

appeal to the head of the agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). If 

appeal is taken, section § 552 gives agencies twenty days to render a decision. Id. at 

§ 552(a)(6)(A)(ii). If the agency decides to entirely or even partly uphold its denial, the agency 

must notify the requester of FOIA’s provision for judicial review, id., which vests the district 

courts with jurisdiction to order the production of records improperly withheld, 5 U.S.C. 

7 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 13 of 22
§ 552(a)(4)(B). Nowhere has CREW alleged that it actually administratively appealed anything 

to the Commission.3

FOIA also provides that a requester can constructively exhaust administrative remedies. 

FOIA section 552(a)(6)(C) specifies that a requester “shall be deemed to have exhausted his 

administrative remedies” if the agency fails to comply with the time limits in section 

552(a)(6)(A), including the requirement that an agency inform a requester within twenty days 

whether it will comply with the request and of his appeal rights. Thus, a requester can bring suit 

if an agency has failed to “respond” within the time limits in section 552(a)(6)(A). Oglesby, 

920 F.2d at 62 (“If the agency has not responded within the statutory time limits, then, under 

5 U.S.C. 552(a)(6)(C), the requester may bring suit.”). “But once the agency responds to the 

FOIA request, the requester must exhaust his administrative remedies before seeking judicial 

review.”4

 Id. at 64. 

To trigger the requirement that a requester actually exhaust administrative remedies 

before bringing suit, the government merely needs to indicate that it is in the process of 

responding to the request — action that the Commission clearly took in this matter. See PetitFrere v. U. S. Attorney’s Office for S.D. of Fla., 664 F. Supp. 2d 69, 71 (D.D.C. 2009) (quoting 

Oglesby, 920 F.2d at 61); supra p. 3-4. And this is true whether or not the agency’s response 

qualifies as a final decision capable of appeal. In Petit-Frere, the plaintiff submitted a FOIA 

 

3

 Commission regulations set forth the procedures by which a requester can 

administratively appeal a denial of a FOIA request or the failure of the Commission to respond to 

a request within ten working days of receiving it. 11 C.F.R. § 4.8. 

4

 A FOIA requester cannot constructively exhaust administrative remedies so long as the 

agency responds before the requester files suit, even if the agency responds after the statutory 

time limit has passed. Oglesby, 920 F.2d at 63-64 (“[A]n administrative appeal is mandatory if 

the agency cures its failure to respond within the statutory period by responding to the FOIA 

request before suit is filed.”). Because the Commission responded to CREW’s request before

twenty days had elapsed, however, the Court need not rely on this rule regarding belated pre-suit 

agency responses. 

8 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 14 of 22
request to a component office of the Department of Justice in June 2008. Before the plaintiff 

filed suit, the government notified the requester by letter dated August 28, 2008, “that it would 

assign the request to one of two tracks, depending on the size of the request, and process the 

request in the order it was received within the track.” 664 F. Supp. 2d at 70. The government 

also informed plaintiff that it would take approximately nine months to process his request. Id. 

After ten months had passed and the government had not updated plaintiff on the progress of his 

request, or otherwise responded to his inquiries, plaintiff filed an administrative appeal. In 

response, the government informed the plaintiff by letter that it could not consider his appeal 

because no adverse determination had yet been made. Id. Plaintiff filed suit in August 2009 

claiming that he had constructively exhausted administrative remedies. Id. 

 The court rejected this claim, holding that the government’s August 2008 letter was a 

sufficient response to preclude constructive exhaustion. The court explained that “all that is 

required in this circuit within the time period is ‘a reply from the agency indicating that it is 

responding to [the] request.’” Id. at 71 (quoting Oglesby, 920 F.2d at 61). “Because [the 

government] responded before plaintiff submitted this complaint for filing . . . constructive 

exhaustion does not apply and the plaintiff is required to exhaust his administrative remedies 

before he can exercise his right to have this court entertain this suit.” Id. 

Here, too, the Commission responded before plaintiff filed its complaint, and CREW did 

not constructively exhaust its administrative remedies. Indeed, within three weeks of CREW’s 

FOIA request, Commission staff had acknowledged the request, negotiated an agreement to 

narrow the search for responsive documents, and indicated that responsive documents would be 

provided on a rolling basis. See supra pp. 2-3. Thus, compared with the government’s response 

to the FOIA request at issue in Petit-Frere, the Commission’s response to CREW’s request was 

9 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 15 of 22
even more sufficient to require CREW to actually exhaust administrative remedies. In PetitFrere, the government merely informed the requester that the request had been assigned to one 

of two processing tracks and that it would be processed in the order it was received — with no 

actual document production within ten months. Id. at 70. The Commission, in contrast, had 

spoken on the phone with CREW at least six times before CREW filed suit. In those 

“conversations and communications,” Compl. ¶ 18, the Commission clearly indicated that it was 

in the process of responding to CREW’s request. In those pre-suit conversations, the 

Commission had obtained CREW’s agreement to exclude certain categories of documents from 

the Commission initial search for responsive records,5

 had informed CREW that the Commission 

had located thousands of potentially responsive documents that it was in the process of 

reviewing, and had informed CREW that it would produce documents on a rolling basis — a 

production that began only weeks later and that is now complete. See supra p. 4.6

 Given both 

their frequency and substance, the multiple communications from the Commission more than 

adequately constitute “a reply from the agency indicating that it is responding to [the] request.” 

Petit-Frere, 664 F. Supp. 2d at 71 (quoting Oglesbly, 920 F.2d at 61). 

Indeed, judicial review at this juncture would be unnecessary and would defeat the 

cardinal purpose of exhaustion: to avoid premature interference with agency processes. See, 

e.g., Weinberger, 422 U.S. at 765. Those processes were not only ongoing when CREW filed 

 

5

 CREW’s original request was extremely broad and would have covered a wide range of 

documents transmitted to or from individual Commissioners such as carbon copies of rulemaking 

comments and official reports transmitted by the Chair or Vice Chair of the Commission to 

Congress or the Office of Management and Budget. See supra p.3 n.1. 

6

 The “conversations and communications” with the Commission that CREW alleges, 

Compl. ¶¶ 17-19, as well as the documents referenced in the complaint, St. Louis Matthis Decl. 

Exhs. 1-2, are sufficient to show that the Commission adequately responded to the request and 

that CREW’s Complaint therefore merits dismissal. Alternatively, the Court may rely on the 

other facts presented in the attached declarations and grant the Commission summary judgment. 

10 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 16 of 22
suit — indeed they are now complete — but commenced almost immediately upon receipt of 

CREW’s FOIA request. Within two days of receiving it, the Commission contacted CREW 

about its request. And as of this filing — within four months of receiving the request — the 

Commission has already completed its response by providing CREW with 835 pages of 

documents. See supra p. 4. CREW does not, and cannot, allege that Commission staff ever 

indicated that the Commission would not respond to plaintiff’s FOIA request. To the contrary, 

when CREW filed suit, it knew that the Commission was searching for responsive documents. 

In sum, because no component of the Commission had rendered any decision against 

CREW that top managers at the Commission could reconsider, see Oglesby, 920 F.2d at 61, 

judicial review would be inappropriate. The Court should not “decide an issue which [the 

Commission] never had a fair opportunity to resolve prior to being ushered into litigation.” 

Dettmann, 802 F.2d at 1476 n.8. 

III. CONCLUSION

For all the foregoing reasons, the Commission respectfully asks this Court to dismiss 

CREW’s Complaint, or in the alternative, grant summary judgment in favor of the Commission. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

11 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 17 of 22
12 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, DC 20463 

June 23, 2011 (202) 694-1650 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 18 of 22
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 11-951 (CKK) 

 ) 

FEDERAL ELECTION COMMISSION, ) FEC STATEMENT OF MATERIAL 

 ) FACTS 

 Defendant. ) 

____________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S STATEMENT 

OF MATERIAL FACTS AS TO WHICH THERE IN 

NO GENUINE DISPUTE 

The defendant Federal Election Commission (“FEC” or “Commission”) submits the 

following Statement of Material Facts as to Which There is No Genuine Dispute. 

1. The defendant Federal Election Commission is the independent agency of the 

federal government with exclusive jurisdiction to administer, interpret and civilly enforce the 

Federal Election Campaign Act of 1971, as amended (“FECA”). See 2 U.S.C. §§ 437c(b)(1); 

437d(a), (e); and 437g. The Commission is broadly empowered to investigate possible 

violations of the FECA and other federal statutes within the Commission’s jurisdiction, 2 U.S.C. 

§ 437g(a)(1), and has exclusive jurisdiction to initiate civil actions in the United States district 

Courts to obtain enforcement of these statutes, 2 U.S.C. §§ 437c(b)(1); 437d(a)(6); 437d(e). 

2. On March 7, 2011, Citizens for Responsibility and Ethics in Washington 

(“CREW”) submitted a request to the Commission under the Freedom of Information Act, 5 

U.S.C. § 552, seeking various categories of records related to communications between three 

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Commission members and individuals and entities outside the Commission. Compl. ¶ 1; 

Higginbothom Decl. Exh. 1. 

3. In its request, CREW sought: 

• Correspondence related to any business between Commissioners Matthew S. Petersen, 

Caroline C. Hunter, and Donald F. McGahn and any individual or entity outside the 

Commission from the date each Commissioner took office; 

• All calendars, agendas, or other records of the schedules of these three Commissioners; 

• All written ex parte communications delivered to any agency ethics official by any of 

these Commissioners, or by anyone acting on their behalf pursuant to Commission 

regulations 11 C.F.R. §§ 7.15(c), 201.3(c), and 201.4(a); and 

• All statements setting forth the substance and circumstances of any oral ex parte 

communication prepared by any of these Commissioners or someone acting on their 

behalf and delivered to an agency ethics official pursuant to Commission regulations, 11 

C.F.R. §§ 7.15(d), 201.3(c), and 201.4(a). Compl. ¶¶ 13-14; Higginbothom Decl. Exh. 1. 

4. The day after receiving CREW’s request, the Commission emailed CREW to 

acknowledge receipt of the request and to inform CREW that its application for a fee waiver had 

been granted. Compl. ¶ 17. 

5. In “subsequent conversations and communications” with FEC Assistant General 

Counsel Nicole St. Louis Matthis, CREW agreed to exclude certain categories of documents 

from the Commission’s initial search for responsive records. Id. ¶¶ 18-19; St. Louis Matthis 

Decl. ¶¶ 2-6. 

6. This agreement was reached through five conversations between Ms. St. Louis 

Matthis and CREW, the first of which took place on March 9, two days after CREW submitted 

its FOIA request. St. Louis Matthis Decl. ¶¶ 2-6. 

7. In this March 9 conversation, Ms. Matthis informed CREW that the Commission 

would provide responsive materials on a rolling basis. Id. ¶ 2. 

8. In two additional conversations on March 14 and March 18, 2011, Ms. Matthis 

continued to discuss which categories of documents CREW would allow the Commission to 

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exclude from its initial search. In these two additional conversations she reiterated that the 

Commission would provide documents on a rolling basis. Id. ¶ 3. 

9. On May 4, 2011, Commission attorney Katie Higginbothom became the point of 

contact for CREW’s request because Ms. St. Louis Matthis was preparing to leave her position 

with the Commission by early June 2011. St. Louis Matthis Decl. ¶ 8; Higginbothom Decl. ¶ 2. 

10. Ms. Higginbothom called CREW that day, May 4, 2011, and informed them that 

the Commission was still in the process of searching for responsive documents. Higginbothom 

Decl. ¶ 3. She also informed CREW that the Commission had located thousands of potentially 

responsive documents that the Commission was in the process of reviewing. Id. She further 

indicated her hope that the review would allow for provision of the first batch of documents 

within a matter of weeks. Id. 

11. On May 23, 2011, CREW filed its complaint in this matter. Compl. 

12. On June 15, 2011, the Commission provided CREW with 386 pages of responsive 

documents. Id. at ¶ 6. 

13. On June 21, 2011, the Commission provided CREW with 354 pages of responsive 

documents. Id. at ¶ 7. 

14. On June 23, 2011, the Commission provided CREW with 95 pages of responsive 

documents. These documents constituted the remaining agency records responsive to CREW’s 

request. Id. at ¶ 8. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

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4 

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

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 23, 2011 (202) 694-1650 

Case 1:11-cv-00951-CKK Document 4 Filed 06/23/11 Page 22 of 22