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 

 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 in Support of Motion to 

Dismiss. 

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 4 Filed 10/12/10 Page 1 of 2
2

Vivien Clair 

Attorney 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

October 12, 2010 (202) 694-1650 

Case 1:10-cv-01350-RMC Document 4 Filed 10/12/10 Page 2 of 2
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 

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 

October 12, 2010 (202) 694-1650

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 1 of 35
i 

TABLE OF CONTENTS 

 Page 

I. BACKGROUND 2 

A. Legal Background 2 

B. Procedural History 4 

 1. Plaintiffs’ Administrative Complaint 4 

2. Plaintiffs’ Judicial Complaint 6 

II. THE COURT SHOULD DISMISS PLAINTIFFS’ COMPLAINT FOR 

 LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO 

 STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 7 

A. Legal Standards 8 

B. The Court Lacks Jurisdiction to Address Plaintiffs’ Claim That the 

Commission Failed to Provide an Explanation of Its Dismissal of 

MUR 5908 9 

1. Plaintiffs’ Claim As to the Dismissal of MUR 5908 Is Moot 

Because the Commission Has Made Public Its Statement 

of Reasons and Other Explanatory Materials 9 

2. Plaintiffs Lack Article III Standing to Challenge the Dismissal 

of Their Administrative Complaint in MUR 5908 11 

a. Plaintiffs Have Suffered No Article III Injury from the 

Timing of the Commission’s Explanation of the 

Dismissal of MUR 5908 12 

b. Even If Plaintiffs Had Challenged the Commission’s 

Dismissal of MUR 5908 on the Merits, They Have 

Failed to Allege That They Suffered Any Injury 

from the Dismissal Itself Under Article III 13 

C. Plaintiffs’ Broad “Pattern and Practice” Allegations Are Not Justiciable 

and Fail to State a Claim Upon Which Relief Can Be Granted 17 

1. FECA Provides No Jurisdiction for Plaintiffs to Pursue 

Their Generalized “Pattern and Practice” Claim on Behalf 

of Others Who Have Filed Administrative Complaints 18 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 2 of 35
ii 

2. The APA Provides No Basis for Plaintiffs to Pursue 

Their “Pattern and Practice” Allegations, Which 

Also Fail to State a Claim Upon Which Relief Can Be Granted 20 

3. Plaintiffs Lack Article III and Prudential Standing to Pursue 

Their Generalized “Pattern and Practice” Claims 23 

III. CONCLUSION 26 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 3 of 35
iii 

TABLE OF AUTHORITIES1

Page 

Cases 

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003) 8 

Allen v. Wright, 468 U.S. 737 (1984) 19, 24 

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987) 11, 24 

American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) 19 

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004) 8 

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

Clark v. United States, 915 F.2d 699 (D.C. Cir. 1990) 9 

City of Houston, Texas. v. HUD, 24 F.3d 1421 (D.C. Cir. 1994) 10 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) 3, 4, 11, 16 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) 4 

Commonwealth of Mass. v. Mellon, 262 U.S. 447 (1923) 19 

County of Los Angeles v. Davis, 440 U.S. 625 (1979) 9 

CREW v. FEC, 401 F. Supp. 2d 115 (D.D.C. 2005), aff’d, CREW v. FEC, 475 F.3d 337 

(D.C. Cir. 2007) 3, 4, 11, 16 

Davis v. FEC, 128 S. Ct. 2759 (2008) 12 

*Del Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116 

(D.D.C. 2010) 20, 21, 23 

Diamond v. Charles, 476 U.S. 54 (1986) 24 

Doe v. Doe Agency, 608 F. Supp 2d 68 (D.D.C. 2009) 23 

Doe v. Harris, 696 F.2d 109 (D.C. Cir. 1982) 9 

FEC v. Akins, 524 U.S. 11 (1998) 16 

 

1

 Asterisks signify authorities upon which the FEC chiefly relies. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 4 of 35
iv 

Page 

*FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981) 3 

FEC v. National Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) 4 

Flast v. Cohen, 392 U.S. 83 (1968) 10 

Friends of Animals v. Salazar, 670 F. Supp. 2d 7 (D.D.C. 2009) 10 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) 12 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) 12 

Griswold v. Connecticut, 381 U.S. 479 (1965) 25 

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

Hinck v. United States, 550 U.S. 501 (2007) 20 

Honig v. Doe, 484 U.S. 305 (1988) 9 

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977) 25 

*Institute for Wildlife Protection v. Norton, 337 F. Supp. 2d 1223 (W.D. Wash. 2004) 22 

Int’l Brotherhood of Teamsters v. TSA, 429 F.3d. 1130 (D.C. Cir. 2005) 12 

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004) 8 

Judicial Watch, Inc. v. FEC, 180 F.3d 277 (D.C. Cir. 1999) 11 

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008) 8, 9 

*Kowalski v. Tesmer, 543 U.S. 125 (2004) 24 

*Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 11, 12, 19 

*Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) 20, 22 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 24, 25 

Natural Resources Defense Council v. NRC, 680 F.2d 801 (D.C. Cir. 1982) 10 

*Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) 20, 21, 22 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 5 of 35
v 

Page 

NTEU v. United States, 101 F.3d 1423 (D.C. Cir. 1996) 12 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) 3 

*Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) 3, 18 

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 25 

Pfizer, Inc. v. Shalala, 182 F.3d 975 (D.C. Cir. 1999) 23

Rumber v. District of Columbia, 595 F.3d 1298 (D.C. Cir. 2010) 24 

Settles v. U.S. Parole Commission, 429 F.3d 1098 (D.C. Cir. 2005) 8 

Singleton v. Wulff, 428 U.S. 106 (1976) 25 

Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83 (1998) 11, 19 

*Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009) 12, 13 

The Grand Council of the Crees of Quebec v. FERC, 198 F.3d 950 (D.C. Cir. 2000) 11 

The Wilderness Society v. Norton, Civil Action No. 03-64-RMC, 2005 WL 3294006 

(D.D.C. 2005) 20 

Warth v. Seldin, 422 U.S. 490 (1975) 1, 11, 24 

*Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) 17 

Statutes and Regulations

Administrative Procedure Act, 5 U.S.C. §§ 701-706 passim

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

2 U.S.C. § 432(a) 14 

2 U.S.C. § 432(e)(1) 5 

2 U.S.C. § 433 14 

2 U.S.C. § 434(a)(3) 5 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 6 of 35
vi 

Page 

2 U.S.C. § 434(b) 5 

2 U.S.C. § 437c(b)(1) 2 

2 U.S.C. § 437d(a) 2 

2 U.S.C. § 437d(a)(6) 2 

2 U.S.C. § 437d(a)(7) 2 

2 U.S.C. § 437d(a)(8) 2 

2 U.S.C. § 437d(e) 2 

2 U.S.C. § 437f 2 

2 U.S.C. § 437g 2 

2 U.S.C. § 437g(a)(1) 2 

2 U.S.C. § 437g(a)(2) 2 

2 U.S.C. § 437g(a)(3) 2 

2 U.S.C. § 437g(a)(4) 2 

2 U.S.C. § 437g(a)(5) 2 

2 U.S.C. § 437g(a)(6) 2 

*2 U.S.C. § 437g(a)(8) passim 

*2 U.S.C. § 437g(a)(8)(A) 3, 11, 18 

*2 U.S.C. § 437g(a)(8)(B) 3, 6, 7, 8, 12 

*2 U.S.C. § 437g(a)(8)(C) 3, 18, 19 

2 U.S.C. § 437g(a)(12) 2 

2 U.S.C. § 438(a)(8) 2 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 7 of 35
vii 

Page 

2 U.S.C. § 441a 5 

2 U.S.C. § 441a(f) 5 

5 U.S.C. § 706(1) 22 

26 U.S.C. § 501(c)(3) 16 

11 C.F.R. § 5.4(a)(4) 6 

11 C.F.R. § 100.72 5 

11 C.F.R. § 100.131 5 

11 C.F.R. § 104.3(b) 5 

11 C.F.R. § 104.9(a) 5 

11 C.F.R. § 110.2(b)(1) 5 

11 C.F.R. § 111.4 2 

11 C.F.R. § 111.20(a) 6 

Other 

Fed. R. Civ. P. 12(b)(1) 1, 8 

Fed. R. Civ. P. 12(b)(6) 1, 8 

Fed. R. Civ. P. 15(a) 13 

United States Constitution, Article II § 3 19 

United States Constitution, Article III passim

Administrative Complaint, MUR 5908 (Mar. 14, 2007), available at 

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

Certification for MUR 5908 (Jan. 30, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274470.pdf 5, 15 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 8 of 35
viii 

Page 

Certification for MUR 5908 (June 30, 2010), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274525.pdf 5, 15 

Factual and Legal Analysis for Peace Through Strength Political Action Committee 

and Michael G. Kelly, as Treasurer, MUR 5908 (Feb. 19, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274495.pdf 15, 16 

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

http://eqs.nictusa.com/eqsdocsMUR/10044274452.pdf 5, 14 

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

http://eqs.nictusa.com/eqsdocsMUR/10044274508.pdf 5, 15, 16 

Letter from Assistant General Counsel Mark D. Shonkweiler to Melanie Sloan, 

MUR 5908 (Aug. 24, 2010) 6 

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

available at http://eqs.nictusa.com/eqsdocsMUR/10044274527.pdf 5 

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 6 

Selected Enforcement Statistics for Fiscal Years 2003-2008, available at 

http://www.fec.gov/em/enfpro/enforcestatsfy03-08.pdf 23 

Statement of Reasons of Chairman Petersen and Commissioners Hunter, 

 McGahn II, Walther and Weintraub, MUR 5908 (Aug. 23, 2010), 

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

Supplemental Statistics, available at 

http://www.fec.gov/em/enfpro/enforcestatsfy09-10.pdf 23 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 9 of 35
The Federal Election Commission (“Commission” or “FEC”) moves this Court to dismiss 

the 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’ claim (Complaint ¶¶ 47-49) that 

the Commission unlawfully failed to explain its recent 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. Plaintiffs also lack Article III standing to 

pursue this claim because they have suffered no concrete injury as a result of the timing of the 

FEC’s explanation of its dismissal, and because, in any event, plaintiffs have not alleged any 

particular connection to the activities described in their administrative complaint that could have 

caused them any cognizable injury. 

In addition, the Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA” or 

“Act”), provides no jurisdiction for plaintiffs to pursue their generalized claim (Compl. ¶¶ 50-56) 

that the Commission engages in a “pattern and practice” of not explaining dismissals of 

administrative complaints within 60 days. The Act permits certain suits by administrative 

complainants about their own complaints, but does not provide the equitable relief (Compl. 

Prayer for Relief (3) and (4)) that plaintiffs seek on behalf of many administrative complainants, 

past, present, and future. Nor does the Administrative Procedure Act, 5 U.S.C. §§ 701-706 

(“APA”), provide a basis for plaintiffs to pursue their “pattern and practice” allegations, which 

also fail to state a claim upon which relief can be granted. Moreover, plaintiffs lack Article III 

and prudential standing to pursue their generalized claim because a federal litigant “generally 

must assert his own legal rights and interests, and cannot rest his claim to relief on the legal 

rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 10 of 35
2 

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. 

I. 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 

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. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 11 of 35
3 

Under 2 U.S.C. § 437g(a)(8)(A), there is limited judicial review of FEC enforcement 

decisions. Specifically, administrative complainants who satisfy standing and other 

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

complaint[s]” within 120 days after the complaint was filed, and may also 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). Dismissal suits must be filed “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 

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). Thus, 

“[a]part from § 437g(a)(8)(C), there is no private right of action to enforce FECA against an 

alleged violator.” Perot, 97 F.3d at 558 n.2 (citations omitted).

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 Committee, 454 U.S. 27, 38 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 12 of 35
4 

& 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 (“The Commission voted to adopt 

the General Counsel’s recommendations, but did not issue a separate joint statement. 

We therefore infer that the General Counsel’s report sets forth the Commission’s rationale for 

ending its inquiry into CREW’s administrative complaint”) (footnote and citations omitted)). 

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, 449 (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 and its treasurer violated various 

provisions of FECA and its implementing regulations.1

 The Commission designated the 

complaint Matter Under Review (“MUR”) 5908 for administrative purposes. In January 2009, 

the Commission found “reason to believe” that several respondents in MUR 5908 violated 

certain provisions of the Act, but following the recommendations of the General Counsel, 

 

1

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

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

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 13 of 35
5 

determined to take no action with respect to other allegations in the administrative complaint.2

 

Following an administrative investigation as to the remaining allegations, the Commission’s 

General Counsel made additional recommendations.3 On June 29, 2010, the Commission 

concluded that there was insufficient evidence to establish whether probable cause existed 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.4 

 Five of the six Commissioners voted to dismiss the administrative complaint; the sixth 

Commissioner did not vote. Id. In a letter dated July 23, 2010, the Commission notified 

plaintiffs of the dismissal of MUR 5908.5 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 

 

2

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

http://eqs.nictusa.com/eqsdocsMUR/10044274452.pdf; Certification for MUR 5908 (Jan. 30, 

2009), available at http://eqs.nictusa.com/eqsdocsMUR/10044274470.pdf. 

Specifically, the Commission found reason to believe that Duncan Hunter violated 

2 U.S.C. §§ 432(e)(1) and 441a(f), and 11 C.F.R. §§ 100.72 and 100.131; that Hunter for 

President, Inc. and Bruce Young, in his official capacity as Treasurer, violated 2 U.S.C. 

§§ 434(a)(3) and 441a(f); and that Peace Through Strength Political Action Committee 

(“PTS PAC”) and Meredith G. Kelley, in her official capacity as Treasurer, violated 

2 U.S.C.§ 441a and 11 C.F.R. § 110.2(b)(1). On the same date, however, the Commission also 

determined, in accord with the General Counsel’s recommendations, to “[t]ake no action at this 

time with respect to the allegation that [PTS PAC] and Meredith G. Kelley, in her official 

capacity as Treasurer, violated 2 U.S.C. § 434(b) and 11 CFR §§ 104.3(b) and 104.9(a).” 

Certification for MUR 5908 (Jan. 30, 2009). 

3

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

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

4

 Certification for MUR 5908 (June 30, 2010), available at 

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

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

2010), available at http://eqs.nictusa.com/eqsdocsMUR/10044274546.pdf. 

5

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

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

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 14 of 35
6 

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.6

 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 

complainants by facsimile and first-class mail on August 24.7 

2. Plaintiffs’ Judicial Complaint 

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

complaint had been dismissed, plaintiffs initiated this lawsuit. It 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).8 

 

6

 Statement of Reasons. See 11 C.F.R. §§ 5.4(a)(4), 111.20(a); see also 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. 

7

 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). 

8

 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. 

§§ 5.4(a)(4), 111.20(a). 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 15 of 35
7 

The sole issue plaintiffs raise in their judicial complaint is the timing of the 

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

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

First, plaintiffs contend 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 seek both a 

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

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 allege (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 describe 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 seek declaratory and injunctive relief as to these “pattern and practice” allegations. 

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

II. 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’ challenge to the dismissal of their administrative complaint in MUR 5908 is 

moot because plaintiffs have already received the relief they seek. Plaintiffs challenge only the 

Commission’s alleged failure to provide an explanation for its dismissal within the 60 days 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 16 of 35
8 

provided under section 437g(a)(8)(B), but plaintiffs filed this suit seventeen days before that 

deadline, and the FEC in fact provided its explanation on August 23 and 24, 2010, within the 

deadline. Plaintiffs also lack standing because they have suffered no injury under Article III as a 

result of the timing or substance of the dismissal of their complaint. In addition, neither FECA 

nor the APA provides a jurisdictional basis for plaintiffs’ generalized “pattern and practice” 

allegations, which also fail to state a claim under the APA. And plaintiffs lack Article III and 

prudential standing to make the “pattern and practice” claim concerning third parties. 

Accordingly, the Court should dismiss for lack of subject matter jurisdiction pursuant to Fed. R. 

Civ. P. 12(b)(1) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 

A. Legal Standards 

When reviewing a motion to dismiss for lack of subject matter jurisdiction, each court 

has “‘an affirmative obligation to insure that it is acting within the scope of its jurisdictional 

authority.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004) (citation omitted). 

In evaluating such motions, courts review the complaint liberally and grant plaintiffs the benefit 

of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 

(D.C. Cir. 2004). To determine whether it has jurisdiction over a claim, the court may consider 

materials outside the pleadings. Settles v. U.S. Parole Commission, 429 F.3d 1098, 1107 

(D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal 

court because subject matter jurisdiction is both a statutory requirement and a constitutional 

requirement under Article III. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 

2003). 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). 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 17 of 35
9 

B. The Court Lacks Jurisdiction to Address Plaintiffs’ Claim That the 

Commission Failed to Provide an Explanation of Its Dismissal of 

MUR 5908 

1. Plaintiffs’ Claim As to the Dismissal of MUR 5908 Is Moot 

Because the Commission Has Made Public Its Statement of 

Reasons and Other Explanatory Materials 

When the Commission in August 2010 made public its statement of reasons and other 

explanatory materials in MUR 5908, plaintiffs’ claim regarding the failure to receive that 

explanation became moot. They now have the relief they sought. Under the Constitution, 

federal courts are limited to deciding “actual, ongoing controversies.” Honig v. Doe,

484 U.S. 305, 317 (1988). “Even 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-thanspeculative chance of affecting them in the future.” Clark v. United States, 915 F.2d 699, 701 

(D.C. Cir. 1990) (quotation marks and citations omitted). A case is moot if a defendant can 

demonstrate that two conditions are met: (1) interim relief or events have completely and 

irrevocably eradicated the effects of the alleged violation, and (2) there is no reasonable 

expectation that the alleged wrong will be repeated. Doe v. Harris, 696 F.2d 109, 111 (D.C. Cir. 

1982) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). When both conditions 

are satisfied, the case is moot because neither party has a legally cognizable interest in the final 

determination of the underlying facts and law. Id. While the movant has the burden of proving 

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

a preponderance of the evidence that the court has jurisdiction to hear its claims. Khadr, 

529 F.3d at 1115. Plaintiffs cannot meet this burden. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 18 of 35
10 

When plaintiffs filed this suit on August 11, 2010, more than two weeks before the 

60-day deadline under section 437g(a)(8), the Commission had not yet explained its dismissal of 

the administrative complaint. However, on August 23 and 24, 2010, the five Commissioners 

who voted to dismiss the administrative complaint issued a joint statement of reasons and the 

Commission made public portions of its administrative file on MUR 5908; these materials 

further explain the Commission’s decisions in the matter, and all were released before the 

deadline for plaintiffs to file suit under section 437g(a)(8). Indeed, plaintiffs were on notice 

from the Commission’s July 23 notification letter that documents from the Commission’s 

administrative file would be made public within 30 days, and those documents were in fact made 

public on the first business day after that deadline. Furthermore, a copy of the Commissioners’ 

statement of reasons was sent by mail and facsimile to plaintiffs the next day, August 24. 

Since the Commission has provided plaintiffs the only relief they seek regarding 

MUR 5908 — an explanation for the Commission’s dismissal decision — plaintiffs’ claim for 

relief is now moot. Release of the documents from the Commission’s file and issuance of the 

statement of reasons has “completely and irrevocably eradicated” the effects of the alleged 

violation. Friends of Animals v. Salazar, 670 F. Supp. 2d 7, 11-12 (D.D.C. 2009) (citations 

omitted). “[N]o justiciable controversy is presented . . . when the question sought to be 

adjudicated has been mooted by subsequent developments.” Id. (quoting Flast v. Cohen, 

392 U.S. 83, 95 (1968); Natural Resources Defense Council v. NRC, 680 F.2d 801, 813-814 

(D.C. Cir. 1982)). Plaintiffs’ request for injunctive relief cannot keep their claim about 

MUR 5908 alive. “As the Supreme Court has recognized in several decisions, ‘[p]ast exposure 

to illegal conduct does not in itself show a present case or controversy regarding injunctive 

relief . . . if unaccompanied by any continuing, present adverse effects.’” City of Houston, 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 19 of 35
11 

Texas. v. HUD, 24 F.3d 1421, 1429 n.6 (D.C. Cir. 1994) (quoting Lujan v. Defenders of Wildlife, 

504 U.S. 555, 563 (1992)). Moreover, plaintiffs do not allege that any other administrative 

complaints filed by them are awaiting statements of reasons from the Commission, so there is no 

reasonable basis to conclude that the Commission might fail to provide timely explanations of 

hypothetical dismissals of plaintiffs’ hypothetical future complaints.9

 Thus, the only concrete 

claim in plaintiffs’ complaint is moot. 

2. Plaintiffs Lack Article III Standing to Challenge the Dismissal 

of Their Administrative Complaint in MUR 5908 

Those who seek review of Commission decisions under 2 U.S.C. § 437g(a)(8) must have 

standing under Article III of the Constitution. “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; Judicial Watch, Inc .v. FEC,

180 F.3d 277 (D.C. Cir. 1999). A plaintiff’s standing must be determined to establish the court’s 

jurisdiction before the court may hear the case and reach the merits. Steel Co. v. Citizens for a 

Better Env’t., 523 U.S. 83, 101 (1998); The Grand Council of the Crees of Quebec v. FERC, 

198 F.3d 950, 954 (D.C. Cir. 2000). 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. at 498). 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.” 

 

9

 Instead, plaintiffs allege only that the Commission’s purported failure to provide an 

explanation for the dismissal decision in MUR 5908 was part of a “pattern and practice of 

arbitrarily and capriciously failing to provide the basis for its dismissal of complaints” within the 

60-day period. Compl. ¶ 38. As we explain infra pp. 17-26, for several reasons this “pattern or 

practice” claim, involving administrative complaints filed by persons who are not parties before 

this Court, should also be dismissed. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 20 of 35
12 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 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., 528 U.S. 167, 180-181 (2000) 

(citing Lujan, 504 U.S. at 560-561). The injury alleged 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). Where a plaintiff asserts a procedural right, he must show 

that he has suffered a personal and particularized injury that impairs one of his concrete interests. 

Int’l Brotherhood of Teamsters v. TSA, 429 F.3d. 1130, 1135 (D.C. Cir. 2005). “[D]eprivation of 

a procedural right without some concrete interest that is affected by the deprivation — a 

procedural right in vacuo — is insufficient to create Article III standing.” Summers v. Earth 

Island Inst., ___ U.S. ___, 129 S. Ct. 1142, 1151 (2009). 

a. Plaintiffs Have Suffered No Article III Injury from the Timing 

of the Commission’s Explanation of the Dismissal of MUR 5908 

Plaintiffs contend that the Commission’s alleged failure to provide an explanation for the 

agency’s decision to dismiss their administrative complaint within the 60-day period in 2 U.S.C. 

§ 437g(a)(8)(B) prevented them from obtaining judicial review of the dismissal decision. 

Compl. ¶¶ 2, 14. However, as we have shown, the Commission explained its dismissal before 

the 60 days expired. In particular, the Commission made public its statement of reasons and 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 21 of 35
13 

documents from the Commission’s file in the administrative matter sufficiently in advance of the 

statutory deadline for filing suit. If plaintiffs had waited two weeks before filing this action, they 

would have received the Commission’s explanation and could have challenged it in a timely 

complaint; or, if after receiving the Commission’s explanation plaintiffs wanted to challenge it, 

they could have amended their existing complaint accordingly. See Fed. R. Civ. P. 15(a). Thus, 

the Commission has not caused plaintiffs to suffer any injury that could be redressed by the 

Court. The FEC has already provided the explanation plaintiffs purportedly seek, and they have 

had procedural options to challenge the merits of the dismissal of MUR 5908. Plaintiffs 

therefore lack standing to pursue their claim as to the timing of the Commission’s explanation of 

its dismissal of MUR 5908. 

b. Even If Plaintiffs Had Challenged the Commission’s Dismissal of 

MUR 5908 on the Merits, They Have Failed to Allege That They 

Suffered Any Injury from the Dismissal Itself Under Article III 

Even if plaintiffs had challenged the Commission’s dismissal of MUR 5908 on the 

merits, they have failed to show that they would have Article III standing to challenge the 

Commission’s decision not to pursue FECA violations they alleged in their administrative 

complaint. Plaintiffs have not shown that the agency’s decision caused any “concrete” or 

“particular” injury to them because they have alleged no direct connection between themselves 

and those involved in the activities about which they complained. Because there is no allegation 

explaining how plaintiffs’ alleged procedural injury deprived them of a “concrete interest that is 

affected by the deprivation,” they have alleged only “a procedural right in vacuo — 

... insufficient to create Article III standing.” Summers, ___ U.S. ___, 129 S. Ct. at 1151. 

 Plaintiffs’ administrative complaint described actions by several persons and entities 

(collectively, the “respondents”): (1) then-Congressman Duncan Hunter of California; (2) Peace 

Through Strength Political Action Committee (“PTS PAC”), a nonconnected, multicandidate 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 22 of 35
14 

political committee that first registered with the Commission in 2002 (see 2 U.S.C. § 433) and 

was affiliated with Representative Hunter; (3) Hunter for President, Inc., the authorized principal 

campaign committee for Representative Hunter’s 2008 presidential bid; and (4) the two 

committees’ respective treasurers.10 However, PTS PAC and its treasurer were the only persons 

plaintiffs’ administrative complaint alleged had violated the Act or Commission regulations. 

Specifically, the administrative complaint alleged that, while Representative Hunter was 

considering a potential presidential bid in the 2008 elections, PTS PAC should have registered as 

Hunter’s principal campaign committee and abided by the rules applicable to such committees; 

in turn, PTS PAC allegedly violated the Act by accepting contributions that exceeded the limit 

on contributions by individuals to candidate committees and by making excessive in-kind 

contributions to Representative Hunter and the Hunter committee in the form of expenditures for 

certain television advertisements. Finally, the administrative complaint alleged that PTS PAC 

violated the Act by failing to disclose its disbursements for the television advertisements. 

See generally Admin. Compl. 

After reviewing the administrative complaint, the Commission’s General Counsel 

recommended that the Commission find reason to believe that Congressman Hunter, Hunter for 

President, PTS PAC, and their respective committee treasurers violated certain provisions of the 

Act and Commission regulations in connection with activity described in the administrative 

complaint. See First General Counsel’s Report at 15. The First General Counsel’s Report, 

however, also recommended that the Commission take no action at that time against PTS PAC 

and its treasurer regarding the committee’s alleged failure to disclose its disbursements for the 

television advertisements described in plaintiffs’ administrative complaint. Id. at 12-14, 15. 

 

10 See Admin. Compl. at 2-9 ; 2 U.S.C. § 432(a). 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 23 of 35
15 

The Commission voted 5-0 to adopt the General Counsel’s recommendations, and it approved 

documents summarizing the Commission’s factual and legal analysis in the matter. 

See Certification (Jan. 30, 2009). The factual and legal analysis for PTS PAC and its treasurer 

concluded that disbursements for the advertisement had already been reported by the 

committee.11 

Following an administrative investigation, the Commission’s Office of General Counsel 

submitted another report to the Commission, “General Counsel’s Report #2,” which contained 

additional recommendations to the Commission. On June 29, 2010, the Commission concluded 

that there was insufficient evidence to find probable cause to believe that violations of the Act 

had occurred, and determined by a 5-0 vote to take no further action and close its file in the 

matter.12 

 Plaintiffs point to no direct, specific connection between themselves and any of the above 

allegations that could satisfy the requirements of Article III standing. As noted above, plaintiffs’ 

administrative complaint alleged violations of the Act only by PTS PAC and its treasurer. 

Admin. Compl. ¶¶ 27, 31, 35, 37. In their court complaint, plaintiffs do not indicate how the 

Commission’s failure to pursue the alleged violations by PTS PAC has caused any “concrete” or 

“particularized” injury to plaintiffs CREW and Sloan, nor how any such injury would be 

redressed by a favorable decision in this case. Indeed, the only mention of actions taken by PTS 

PAC and its treasurer occurs in paragraph 27 of plaintiffs’ judicial complaint, with no contention 

about how those alleged actions had any effect whatsoever on plaintiffs. It is well-established 

 

11 Factual and Legal Analysis for Peace Through Strength Political Action Committee and 

Meredith G. Kelley, as Treasurer, MUR 5908 (Feb. 19, 2009) at 6, available at 

http://eqs.nictusa.com/eqsdocsMUR/10044274495.pdf. 

12 Certification for MUR 5908 (June 30, 2010); Statement of Reasons at 2. 

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16 

that a plaintiff’s desire for an administrative agency to “‘get the bad guys’” is insufficient to 

create standing. Common Cause, 108 F.3d at 418. 

 In their court complaint, plaintiffs allege generally that CREW is “hindered in its 

programmatic activity” and that Sloan is “harmed” if persons fail to report information as 

required by FECA or the Commission fails to properly administer the reporting requirements of 

the Act. (Compl. ¶¶ 7-9.) Although an informational injury can support standing, see FEC v. 

Akins, 524 U.S. 11 (1998), the vague, general allegations plaintiffs make here are insufficient, 

and they have not alleged a concrete injury from any particular missing information. Moreover, 

“[u]nlike the plaintiffs in [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 (citation omitted). 

 The administrative complaint did allege that PTS PAC and its treasurer had failed to 

disclose certain disbursements for television advertisements, but the General Counsel’s Office 

concluded, and five Commissioners agreed, that those disbursements had already been disclosed 

on the committee’s previous reports.13 Thus, plaintiffs suffered no informational injury from the 

Commission’s decision not to pursue those alleged violations. Plaintiffs’ administrative 

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

multicandidate committee, rather than a candidate committee. But since PTS PAC was already 

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

any information that would create standing. Rather than seeking additional information, 

plaintiffs appear to be seeking a “legal determination” that certain expenditures should have been 

 

13 Factual and Legal Analysis for PTS PAC at 6-7; General Counsel’s Report #2 at 11-13; 

Statement of Reasons at 2. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 25 of 35
17 

reported differently or “from a different source.” Wertheimer v. FEC, 268 F.3d 1070, 1075 

(D.C. Cir. 2001). As the D.C. Circuit has explained, however, any such marginal increase in 

information is too “trivial” to provide standing under Article III. Id. Thus, even if plaintiffs had 

alleged a more specific informational injury, the Commission’s dismissal of the allegations in 

plaintiffs’ administrative complaint regarding the manner in which PTS PAC registered with and 

reported to the Commission cannot establish standing. 

C. Plaintiffs’ Broad “Pattern and Practice” Allegations Are Not Justiciable 

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

Plaintiffs complain not only about the dismissal of their own administrative complaint, 

but also claim that the Commission engages in a general “pattern and practice” of not furnishing 

explanations before the end of the 60-day period for administrative complainants to seek judicial 

review under 2 U.S.C. § 437g(a)(8). Citing several other dismissals from 2008 and 2009. 

(Compl. ¶¶ 32-46, 50-56), the complaint seeks (Prayer for Relief (3)) a declaration that “the 

failure of the FEC to provide a Statement of Reasons or other explanation for dismissing 

complaints within 60 days of such dismissals [is] arbitrary, capricious, and contrary to law.”14 

The complaint also requests (id. at (4)) that the Court “[o]rder the FEC to issue a Statement of 

Reasons or other explanation for dismissing complaints sufficiently within 60 days of such 

dismissals so as to permit a complainant to file a petition for review” with this Court. This relief 

should be denied. 

 

14 Only one of those other administrative matters, MUR 5541, was filed by plaintiffs. (See

Compl. ¶¶ 32-37.) As plaintiffs admit, the notification of the dismissal in that matter was 

delayed due to an out-of-date mailing address for CREW, but the Commission still hand 

delivered a copy of the notification letter before the expiration of the 60-day period. (Id. ¶¶ 33, 

35.)

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 26 of 35
18 

1. FECA Provides No Jurisdiction for Plaintiffs to Pursue Their 

Generalized “Pattern and Practice” Claim on Behalf of Others 

Who Have Filed Administrative Complaints 

Plaintiffs lack statutory standing to pursue their “pattern and practice” claim. The Act’s 

special jurisdictional grant, 2 U.S.C. § 437g(a)(8), departs from the usual rule that an agency’s 

prosecutorial decisions are not judicially reviewable, see, e.g., Heckler v. Chaney, 470 U.S. 821, 

831 (1985), and 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 

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

the original [administrative] complaint.” Compl. ¶ 24. 

 Plaintiffs’ “pattern 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 

dismissal of anyone’s administrative complaint but their own. As the quotations above from the 

court complaint reveal, the allegations broadly cover the Commission’s procedures for handling 

administrative complaints, and plaintiffs seek equitable relief beyond the specific remedies — 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 27 of 35
19 

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 the issue of whether a statute provides a particular 

person a right to sue is a question of statutory standing). There is no indication that Congress 

intended to create a remedy so expansive that it would permit the relief plaintiffs seek on behalf 

of third parties. Indeed, such a remedy would raise serious separation of power concerns 

because it would expand the narrow confines of section 437g(a)(8) to allow court supervision of 

an agency’s overall practices at the request of a single plaintiff. 

To permit Congress to convert the undifferentiated public interest in executive 

officers’ compliance with the law into an “individual right” vindicable in the 

courts is to permit Congress to transfer from the President to the courts the 

Chief Executive’s most important constitutional duty, to “take Care that the 

Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the 

permission of Congress, “to assume a position of authority over the 

governmental acts of another and co-equal department . . ..” 

Lujan, 504 U.S. at 577 (quoting Commonwealth of Mass. v. Mellon, 262 U.S. 447, 489 (1923)). 

See also Allen v. Wright, 468 U.S. 737, 752 (1984) (“law of Art. III standing is built on a single 

basic idea — the idea of separation of powers”). 

 Simply put, in enacting section 437g(a)(8), Congress did not authorize a court to 

adjudicate or a petitioner to pursue a “pattern or practice” allegation like the one 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 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 28 of 35
20 

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 FECA provides for an administrative complainant is a suit to challenge the disposition of 

that person’s own complaint — not those of others. 

2. The APA Provides No Basis for Plaintiffs to Pursue Their “Pattern 

and Practice” Allegations, Which Also Fail to State a Claim Upon 

Which Relief Can Be Granted 

Plaintiffs’ claim under the APA of a “pattern and practice” of unreasonable delay must 

also be dismissed. A “pattern and practice” of delay is not “agency action unlawfully withheld 

or unreasonably delayed” within the meaning of the APA, which authorizes challenges to 

“discrete” federal agency action but does not contemplate entangling the courts in managing the 

day-to-day business of the agencies. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 

(2004); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (stating that, under the 

APA, a plaintiff “must direct its attack against some particular ‘agency action’ that causes it 

harm”); The Wilderness Soc’y v. Norton, Civil Action No. 03- 64-RMC, 2005 WL 3294006 

(D.D.C. Jan. 10, 2005) (dismissing a pattern or practice allegation that an agency failed to 

prepare certain plans required by statute: “The APA does not allow a suit to enforce a general 

statutory command” (citing S. Utah Wilderness Alliance, 542 U.S. at 66-67).) Thus, plaintiffs’ 

claim under the APA is not justiciable and fails to state a claim upon which relief can be granted. 

Courts have rejected claims similar to plaintiffs’ claim here. For example, in Del Monte 

Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116 (D.D.C. 2010), an importer of 

fresh produce claimed that the Food and Drug Administration (“FDA”) had engaged in an 

unlawful pattern and practice of delay in sampling and inspecting produce. The plaintiff claimed 

that the FDA “often allows too much time to pass before completing those inspections, causing 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 29 of 35
21 

Del Monte’s produce to become less fresh and therefore to lose value.” Id. at 118. As examples 

of this delay, Del Monte described six instances between early 2008 and early 2009 in which the 

FDA requested a sample of a shipment of produce but did not issue the notice alerting the 

importer of the agency’s decision to release the particular shipment until so many days had 

passed that Del Monte was harmed. Id. The importer sought a judgment “‘declaring that FDA 

has engaged in a pattern or practice that constitutes agency action unlawfully withheld and/or 

unreasonably delayed.’” Id. (quoting Del Monte’s complaint). 

Granting the government’s motion to dismiss, the court rejected the argument that, 

because a single failure to act is reviewable under the APA, a pattern and practice of many such 

failures also is reviewable for unreasonable delay. Del Monte, 706 F. Supp. 2d at 118-119. The 

court held that the importer’s claim was not justiciable under the APA. The Supreme Court, the 

district court stated, “has made explicit that a court may only review an agency’s failure to act, or 

unreasonable delay in acting, if the action not taken, or taken too late, is discrete.” Del Monte,

706 F. Supp. 2d at 119 (citing S. Utah Wilderness Alliance, 542 U.S. at 64). Quoting Southern 

Utah Wilderness Alliance, 542 U.S. at 66-67, the court explained that, “‘[i]f courts were 

empowered to enter general orders compelling compliance with broad statutory mandates, they 

would necessarily be empowered, as well, to determine whether compliance was achieved — 

which would mean that it would ultimately become the task of the supervising court, rather than 

the agency, to work out . . . day-to-day agency management.’” Del Monte, 706 F. Supp. 2d 

at 119. The district court refused to review Del Monte’s claim because that task would lead to 

just the sort of “entanglement” in the “management of the agency’s business that the Supreme 

Court has instructed is inappropriate” for the federal judiciary to undertake. Id.

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22 

In Institute for Wildlife Protection v. Norton, 337 F. Supp. 2d 1223 (W.D. Wash. 2004), 

the court applied the principles of National Wildlife Federation and Southern Utah Wilderness 

Alliance to dismiss a claim of a pattern and practice of delay similar to the claim here. The 

plaintiffs in that case alleged that the government had engaged in a pattern and practice of delay 

in responding to citizen petitions submitted in support of listing the Western Gray Squirrel as an 

endangered species under the Endangered Species Act, in violation of the APA, 5 U.S.C. 

§ 706(1). Citing four specific examples of past government inaction regarding their citizen 

petitions, the plaintiffs claimed that the government would “surely do it again in the near future, 

as they have taken no steps to address the funding problems they have brought upon themselves, 

nor have they changed the very lengthy times they take to make these simple, initial findings.” 

Inst. for Wildlife Prot., 337 F. Supp. 2d at 1229 (citation omitted). 

Although the plaintiffs had referred to four prior instances of government inaction, the 

court held that the plaintiffs were not challenging any final agency action, but instead sought to 

make “wholesale improvements” to the agency’s citizen review process — an attempt prohibited 

by National Wildlife Federation and its progeny. As the court explained, “the holding of Lujan 

[v. Nat’l Wildlife Fed’n] . . . denies jurisdiction to hear ‘pattern and practice claims’ regarding 

how an agency conducts its business on a system-wide level.” Inst. for Wildlife Prot., 337 F. 

Supp. 2d at 1229 (internal quotation marks and citation omitted). Instead, 

[p]laintiffs may direct their attacks against a particular agency action, [b]ut it 

is at least entirely certain that the flaws in the entire “program” — consisting 

principally of the many individual actions referenced in the complaint, and 

presumably actions yet to be taken as well — cannot be laid before the courts 

for wholesale correction under the APA, simply because one of them that is 

ripe for review adversely affects one of respondent’s members. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 31 of 35
23 

Id. at 1229 (citations omitted).15 

Like the plaintiffs in Del Monte and Institute for Wildlife Protection, plaintiffs CREW 

and Sloan allege a “pattern and practice” of agency delay, citing specific instances of past delays 

by the Commission in issuing a statement of reasons for a dismissal.16 But plaintiffs in effect 

seek a wholesale improvement, in the form of greater speed, in the Commission’s process of 

issuing explanations for dismissing administrative complaints. As the Commission has shown, 

allegations of a pattern and practice of delay are not actionable under the APA, and plaintiffs’ 

request for injunctive and declaratory relief is not justiciable. To hold otherwise would 

“entangle” this Court in the Commission’s labor-intensive process for issuing public 

explanations of its dismissal decisions. Thus, plaintiffs’ “pattern and practice” claim should be 

dismissed. 

3. Plaintiffs Lack Article III and Prudential Standing to Pursue 

Their Generalized “Pattern and Practice” Claim 

As we have explained, those bringing suit under 2 U.S.C. § 437g(a)(8) must demonstrate 

Article III standing. See supra pp. 13-17. Plaintiffs have not even attempted, however, to show 

how the Commission’s decisions about administrative complaints filed by third parties about the 

 

15 If plaintiffs here are assuming that the Commission in the future will not issue 

explanations for dismissing administrative complaints within 60 days of voting to dismiss, 

plaintiffs’ “pattern and practice” claim is speculative and unripe. See, e.g., Doe v. Doe Agency,

608 F. Supp. 2d 68, 72 (D.D.C. 2009) (finding plaintiffs’ request for prospective relief unripe in 

a pattern and practice claim: “Based on this prediction, plaintiffs request that the Court establish 

a time frame for the completion by the Doe Agency of all future classification reviews. 

Plaintiffs’ speculative claims regarding hypothetical future violations are not ripe. . . . [T]hese 

contingencies [may]never occur . . . .”) (citation omitted); Pfizer, Inc. v. Shalala, 182 F.3d 975, 

978 (D.C. Cir. 1999) (“A claim is not ripe for adjudication if it rests upon contingent future 

events that may not occur as anticipated, or indeed may not occur at all.”) (Citation omitted)). 

16 Plaintiffs cite a few isolated examples from the hundreds of administrative enforcement 

cases closed by the Commission in the past few years. See Selected Enforcement Statistics for 

Fiscal Years 2003-2008, available at http://www.fec.gov/em/enfpro/enforcestatsfy03-08.pdf; 

Supplemental Statistics, available at http://www.fec.gov/em/enfpro/enforcestatsfy09-10.pdf. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 32 of 35
24 

actions of other third parties have caused plaintiffs any cognizable injury-in-fact that an order of 

this Court could redress. “[T]he decision to seek review must be placed in the hands of those 

who have a direct stake in the outcome . . ., not . . . in the hands of concerned bystanders, who 

will use it simply as a vehicle for the vindication of value interests.” Am. Legal Found., 

808 F.2d at 91 (internal quotation marks omitted) (quoting Diamond v. Charles, 476 U.S. 54, 62 

(1986) (other citation omitted)). Plaintiffs lack that direct stake as to the complaints of others 

and therefore cannot meet their burden to demonstrate standing under Article III. 

Plaintiffs also cannot meet the requirements of the limited exceptions to the prudential 

rule against third-party standing. Plaintiffs’ “pattern and practice” claim and the requested 

equitable relief rest on the interests of persons not before the Court — past, present, and future 

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). This prohibition is a 

“judicially self-imposed limit[ ] on the exercise of federal jurisdiction.” Allen v. Wright,

468 U.S. at 751. 

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 they have 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. Alabama ex rel. 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 33 of 35
25 

Patterson, 357 U.S. 449 (1958) (holding that NAACP could assert members’ constitutional right 

of association). Courts have also held that physicians may assert the rights of their patients. See, 

e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that doctors accused of being 

accessories to the crime of contraceptive use by their patients could raise their patients’ 

constitutional right to contraception). And school operators may be able to assert claims on 

behalf of parents. See, e.g,, Pierce v. Soc. of Sisters, 268 U.S. 510 (1925) (private school 

operators could raise the rights of parents to direct the upbringing and education of their children 

by enrolling them in plaintiffs’ schools). However, nothing in plaintiffs’ 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.17 

Finally, “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 a speedier explanation than 

those complainants themselves. Plaintiffs have not alleged that other administrative 

complainants who wish to litigate this issue face any special hindrance. Moreover, those other 

complainants’ position differs markedly, for example, from that of the members of the NAACP 

(in NAACP v. Alabama ex rel. Patterson), who, by suing individually, would lose the very 

 

17 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). 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 34 of 35
26 

privacy of association that they wanted to protect. Only the NAACP could effectively vindicate 

the members’ rights. For all of these reasons, plaintiffs lack standing to pursue their “pattern and 

practice” claim. 

III. CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court dismiss 

the 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 

October 12, 2010 (202) 694-1650 

Case 1:10-cv-01350-RMC Document 4-1 Filed 10/12/10 Page 35 of 35
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. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) [PROPOSED] ORDER 

 ) 

 Defendant. ) 

____________________________________) 

[PROPOSED] ORDER 

 For the reasons set forth in the Memorandum Opinion dated _____________, 

2010, it is this ______ day of ______________, 2010, hereby 

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

GRANTED, and it is further 

 ORDERED that the above-captioned case be DISMISSED. 

SO ORDERED. 

Dated: _______________, 2010 ____________________________ 

 ROSEMARY M. COLLYER 

 United States District Judge 

 

Case 1:10-cv-01350-RMC Document 4-2 Filed 10/12/10 Page 1 of 2
2

Notification to: 

Phillip Christopher Hughey 

David Kolker 

dkolker@fec.gov 

Harry J. Summers 

hsummers@fec.gov 

Robert W. Bonham III 

rbonham@fec.gov 

Vivien Clair 

vclair@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Anne L. Weismann 

Aweismann@citizensforethics.org 

Melanie Sloan 

CITIZENS FOR RESPONSIBILITYAND ETHICS IN WASHINGTON 

1400 Eye Street, N.W., Suite 450 

Washington, D.C. 20005 

(202) 408-5565 

Case 1:10-cv-01350-RMC Document 4-2 Filed 10/12/10 Page 2 of 2