UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

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

Commission hereby moves for an order dismissing (a) counts three and four of plaintiffs’ 

complaint in their entirety, and (b) the portions of counts one and two of plaintiffs’ complaint 

that seek relief pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, all of which fail to 

state a claim upon which relief can be granted. The Federal Election Campaign Act, 52 U.S.C. 

§ 30109(a)(8), provides the exclusive basis for judicial review of the administrative dismissal 

decisions that plaintiffs challenge in this action, and that provision limits the scope of review and 

relief available here. A supporting memorandum and a proposed order accompany this motion.1

 

1

 This litigation is commenced against the Federal Election Commission (Commission) 

on the grounds that the Commission did not approve a recommendation of the Commission’s 

Office of General Counsel (OGC) to find “reason to believe” (RTB) that a violation of the FECA 

or of its regulations occurred in this case and that the file was consequently closed. 52 U.S.C. 

§ 30109(a)(8) (formerly 2 U.S.C. § 437g(a)(8)). The reason for the inaction of the Commission 

is because there were not four or more Commissioners’ votes to proceed on the RTB 

recommendation. Courts have held that, in order to properly review the inaction of the 

Commission, the court must be supplied with a “statement of reasons” of those Commissioners 

who voted against, or abstained from voting for, the OGC recommendation, who the court has 

called the “controlling group.” See Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 

1132 (D.C. Cir. 1987); FEC v. Nat’l Republican Senatorial Comm., 966 F. 2d 1471, 1476 (D.C. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 1 of 27
2 

 Respectfully submitted, 

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

Deputy General Counsel 

Kevin Deeley 

Acting Associate General Counsel 

 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

 Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

Attorneys 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

October 28, 2014 (202) 694-1650 

 

Cir. 1992) (“[W]hen the Commission deadlocks 3-3 and so dismisses a complaint, that dismissal, 

like any other, is judicially reviewable under Section [30109(a)(8)]. . . . [T]o make judicial 

review a meaningful exercise, the three Commissioners who voted to dismiss must provide a 

statement of their reasons for so voting. Since those Commissioners constitute a controlling 

group for purposes of the decision, their rationale necessarily states the agency’s reasons for 

acting as it did.”); Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986), rev’d on other 

grounds, 842 F.2d 436 (D.C. Cir. 1988). The Commission has historically voted by a majority 

vote (pursuant to 52 U.S.C. §§ 30106(c) and 30107(a)(6) (formerly 2 U.S.C. §§ 437c(c) and 

437d(a)(6))) to authorize the OGC’s appearance on behalf of the Commission in suits 

commenced pursuant to 52 U.S.C. 30109(a)(8) (formerly 2 U.S.C. § 437g(a)(8)). Accordingly, 

the views of the Commissioners who voted to pursue enforcement are not defended by the OGC, 

although their statements of reasons are part of the administrative record and available for the 

Court’s consideration. Furthermore, the OGC’s representational role in this matter does not 

change OGC’s recommendation to find RTB or any of the reasons supporting it, which are part 

of the administrative record. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 2 of 27
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 gmueller@fec.gov 

 ckitcher@fec.gov 

 

FEDERAL ELECTION COMMISSION 

999 E Street N.W. 

 Washington, DC 20463 

October 28, 2014 (202) 694-1650 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 3 of 27
i 

TABLE OF CONTENTS 

 

 Page 

BACKGROUND .......................................................................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND .............................................2 

A. The FEC and FECA’s Administrative Enforcement Process ............................2 

B. FECA’s Requirements for Political Committees ...............................................6 

II. FACTUAL BACKGROUND ........................................................................................8 

A. The Administrative Proceedings Underlying this Action ..................................8 

III. THIS JUDICIAL-REVIEW ACTION ...........................................................................9 

ARGUMENT ...........................................................................................................................10 

I. STANDARD OF REVIEW .........................................................................................10 

II. JUDICIAL REVIEW UNDER SECTION 30109 IS THE EXCLUSIVE 

PROCEDURE FOR CHALLENGING FEC DISMISSAL DECISIONS ...................10 

III. COUNTS THREE AND FOUR OF PLAINTIFFS’ COMPLAINT 

SHOULD BE DISMISSED .........................................................................................14 

A. Plaintiffs’ Claims for Declaratory and Injunctive Relief Regarding 

a Purported “De Facto” Regulation Are Outside Section 30109(a)(8)’s 

Exclusive Scope ...............................................................................................14 

B. Plaintiffs Are Neither a Proper Nor Timely Challenger to the 

Commission’s Dismissal of an Earlier Administrative Complaint ..................17 

IV. THE PORTIONS OF COUNTS ONE AND TWO OF PLAINTIFFS’ 

COMPLAINT THAT SEEK RELIEF UNDER THE APA SHOULD 

BE DISMISSED ..........................................................................................................18 

CONCLUSION ........................................................................................................................19 

 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 4 of 27
ii 

TABLE OF AUTHORITIES 

Cases 

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) ........................................... 18 

Akins v. FEC, 146 F.3d 1049 (D.C. Cir. 1998) ..........................................................................5 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ......................................................................14 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................8, 10 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................10 

Block v. Community Nutrition Inst., 467 U.S. 340 (1984) .................................................10, 12 

Bowen v. Massachusetts, 487 U.S. 879 (1988) ........................................................................11 

Buckley v. Valeo, 424 U.S. 1, (1976) (per curiam) ..............................................................6, 15 

Citizens for Responsibility & Ethics in Washington v. FEC, 475 F.3d 337 

(D.C. Cir. 2007) .............................................................................................................4

 

Coal River Energy, LLC v. Jewell, 751 F.3d 659 (D.C. Cir. 2014) .........................................12 

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

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per curiam) ....................................17 

Durkin for U.S. Senate Comm. v. FEC, No. C80-503D, 2 Fed. Election Camp. Fin. 

Guide (CCH) ¶ 9147 (D.N.H. Oct. 30, 1980) ..............................................................13 

FEC v. Akins, 524 U.S. 11 (1998) ..............................................................................................5 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ....................................4 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .........................5, 13 

FEC v. Nat’l Republican Senatorial Comm., 966 F. 2d 1471 (D.C. Cir. 1992) ..................4, 16 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .................................................................7 

Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009) .............................................................11, 12 

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) .........................................................................18 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 5 of 27
iii 

Judicial Watch v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) .....................................................17 

Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) ...................................................................18 

Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) ............................................................10 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ..................................................................5 

National Rifle Ass’n of Am. v. FEC, 854 F.2d 1330 (D.C. Cir. 1988) .....................................18 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................................14 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ............................................................................13 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012) ...................................7 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) ..........................................10 

SEC v. Chenery Corp., 318 U.S. 80 (1943) ...............................................................................5 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................................11 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...............................................................7, 15 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) ................................................................13, 15 

Statutes, Regulations, and Rules 

5 U.S.C. § 704 ..........................................................................................................................11 

5 U.S.C. § 706 ................................................................................................................1, 18, 19 

5 U.S.C. § 706(2)(A)................................................................................................................14 

26 U.S.C. §§ 527(a)(e)(1) ..........................................................................................................7 

52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)) ......................................................................1 

52 U.S.C. § 30101(4) (2 U.S.C. § 431(4)) .................................................................................8 

52 U.S.C. § 30101(4)(A) (2 U.S.C. § 431(4)(A)) ......................................................................6 

52 U.S.C. § 30101(8)(A)(i) ( 2 U.S.C. § 431(8)(A)(i) ...............................................................6 

52 U.S.C. §§ 30102-30104 (2 U.S.C. §§ 432-434) ....................................................................8 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 6 of 27
iv 

52 U.S.C. § 30103 (2 U.S.C. § 433) ..........................................................................................6 

52 U.S.C. § 30104(a)-(b) (2 U.S.C. § 434(a)-(b)) .....................................................................6 

52 U.S.C. § 30106 (2 U.S.C. § 437c).........................................................................................2 

52 U.S.C. § 30106(b)(1) (2 U.S.C. § 437c(b)(1)) ................................................................2, 12 

52 U.S.C. § 30106(c) (2 U.S.C. § 437c(c)) ......................................................................2, 3, 16 

52 U.S.C. § 30107 (2 U.S.C. § 437d) ......................................................................................16 

52 U.S.C. § 30107(a)(6) (2 U.S.C. § 437d(a)(6)) ......................................................................2 

52 U.S.C. § 30107(a)(8) (2 U.S.C. § 437d(a)(8)) ..........................................................2, 11, 16 

52 U.S.C. § 30107(a)(9) (2 U.S.C. § 437d(a)(9)) ......................................................................2 

52 U.S.C. § 30109(a)(1)-(2) (2 U.S.C. § 437g(a)(1)-(2)) ......................................................2, 3 

52 U.S.C. § 30109(a)(4)(A)(i) (2 U.S.C. § 437g(a)(4)(A)(i)) ...................................................3 

52 U.S.C. §30109(a)(6) (2 U.S.C. §437g(a)(6)) ........................................................................2 

52 U.S.C. § 30109(a)(6)(A) (2 U.S.C. § 437g(a)(6)(A)) ...........................................................3 

52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)) ................................................ 4, 9, 13, 14-18 

52 U.S.C. § 30109(a)(8)(A) (2 U.S.C. § 437g(a)(8)(A)) ...........................................................4 

52 U.S.C. § 30109(a)(8)(C) (2 U.S.C. § 437g(a)(8)(C)) .....................................................5, 11 

52 U.S.C. § 30109(a)(12) (2 U.S.C. § 437g(a)(12)) ..................................................................3 

52 U.S.C. § 30111(a)(8) (2 U.S.C. § 438(a)(8)) ........................................................................2 

11 C.F.R. § 100.5(a)...................................................................................................................6 

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

Fed. R. Civ. P. 12(b)(6) ...........................................................................................................10 

Proposed Rules: Political Committee Status, 69 Fed. Reg. 11,736 

 (Mar. 11, 2004) ..............................................................................................................7 

Rules and Regulations: Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) ..........7 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 7 of 27
v 

Miscellaneous 

House Report, H.R. Rep. No. 917, 94th Cong., 2d Sess. 4 (1976), 

reprinted in FEC, Legislative History of Federal Election Campaign Act 

 Amendments of 1976 (GPO 1977) ..............................................................................12 

House Report, H.R. Rep. No. 1057, 94th Cong., 2d Sess. 35 (1976), 1976, 

 reprinted in FEC, Legislative History of Federal Election Campaign Act 

 Amendments of 1976 (GPO 1977) ........................................................................12, 13 

120 Cong. Rec. 18,525 (1974) (remarks of Sen. Cannon), 

reprinted in FEC, Legislative History of Federal Election Campaign 

Amendments of 1974, (GPO 1977) ..............................................................................13 

In the Matter of Crossroads Grassroots Policy Strategies, MUR 6396, Certification 

(Dec. 5, 2013), http://eqs.fec.gov/eqsdocsMUR/14044350869.pdf ............................18 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 8 of 27
Plaintiffs Citizens for Responsibility and Ethics in Washington and its Executive Director 

Melanie Sloan challenge the Federal Election Commission’s (“Commission” or “FEC”) 

dismissal of two administrative complaints that plaintiffs filed with the Commission alleging 

certain campaign-finance violations by American Action Network (“AAN”) and Americans for 

Job Security (“AJS”). Plaintiffs’ administrative complaints alleged that those two entities 

violated the Federal Election Campaign Act (“FECA” or “Act”) by spending substantial sums of 

money on advertising referencing federal candidates and legislative issues without registering 

with the Commission as a “political committee” and complying with the disclosure requirements 

applicable to political committees. Two of plaintiffs’ claims in this action seek judicial review of 

the dismissal of those administrative matters pursuant to the narrow judicial-review provision in 

FECA, 52 U.S.C. § 30109(a)(8) (formerly 2 U.S.C. § 437g(a)(8)).1

 But plaintiffs also bring 

claims here for broad relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, 

including injunctive relief that would preclude the Commission “from relying on” certain legal 

analyses in determining whether any organization is subject to FECA’s registration and reporting 

requirements for political committees (Compl. Prayer for Relief ¶ 6). FECA, however, provides 

the exclusive mechanism for obtaining judicial review of an FEC decision to dismiss an 

administrative complaint, and limits the scope of relief available to parties seeking such review. 

Consequently, the portions of plaintiffs’ complaint that rely on the APA and seek relief beyond 

the scope of FECA’s narrow judicial-review provision fail to state a claim and must be 

dismissed. 

 

1

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

United States Code were recodified in Title 52. This submission will indicate in parentheses the 

former Title 2 citations. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 9 of 27
2 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

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

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

U.S.C. §§ 30106, 30107 (§§ 437c, 437d). Congress authorized the Commission to “formulate 

policy” with respect to FECA, id. § 30106(b)(1) (§ 437c(b)(1)); “to make, amend, and repeal 

such rules . . . as are necessary to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 

30111(a)(8) (§§ 437d(a)(8), 438(a)(8)); and to investigate possible violations of the Act, id. 

§ 30109(a)(1)-(2) (§ 437g(a)(1)-(2)). The Commission has exclusive jurisdiction to initiate civil 

enforcement actions for violations of the Act in the United States district courts. Id.

§§ 30106(b)(1), 30109(a)(6) (§§ 437c(b)(1), 437g(a)(6)). 

FECA provides that decisions of the Commission “with respect to the exercise of its 

duties and power under the provisions of th[e] Act shall be made by a majority vote of the 

members of the Commission,” and that certain specified actions require “the affirmative vote of 

4 members of the Commission.” 52 U.S.C. § 30106(c) (§ 437c(c)). As explained in greater 

detail below, the decision to open an investigation or take other statutory steps in the process of 

enforcing against an alleged violation of FECA thus requires the assent of at least four 

Commissioners. 52 U.S.C. §§ 30106(c), 30107(a)(6), (9) (§§ 437c(c), 437d(a)(6), (9)). When 

pursuit of an alleged violation is not supported by four or more votes of the agency’s six 

Commissioners, the statute precludes the opening of an investigation or advancement of the 

enforcement process. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 10 of 27
3 

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

alleging a violation of the Act. Id. § 30109(a)(1) (§ 437g(a)(1)); see also 11 C.F.R. § 111.4. 

After reviewing the complaint and any response filed by the respondent, the Commission 

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

§ 30109(a)(2) (§ 437g(a)(2)). Any investigation under this provision is confidential until the 

administrative process is complete. Id. § 30109(a)(12) (§ 437g(a)(12)). If at least four of the 

FEC’s six Commissioners vote to find such reason to believe, the Commission may investigate 

the alleged violation; otherwise, the Commission dismisses the administrative complaint. Id.

§§ 30106(c), 30109(a)(2) (§§ 437c(c), 437g(a)(2)). 

If the Commission votes to proceed with an investigation, it then must determine whether 

there is “probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i) 

(§ 437g(a)(4)(A)(i)). Like a reason-to-believe determination, a determination to find probable 

cause to believe that a violation of FECA has occurred requires an affirmative vote of at least 

four Commissioners. Id. §§ 30106(c), 30109(a)(4)(A)(i) (§§ 437c(c), 437g(a)(4)(A)(i)). If the 

Commission so votes, it is statutorily required to attempt to remedy the violation informally and 

attempt to reach a conciliation agreement with the respondent. Id. Entering into a conciliation 

agreement requires an affirmative vote of at least four Commissioners and such an agreement, 

unless violated, operates as a bar to any further action by the Commission related to the violation 

underlying that agreement. Id. If the Commission is unable to reach a conciliation agreement, 

FECA authorizes the agency to institute a de novo civil enforcement action in federal district 

court. Id. § 30109(a)(6)(A) (§ 437g(a)(6)(A)). The institution of a civil action under section 

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

(§ 437c(c)). 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 11 of 27
4 

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

FECA provides the complainant with a narrow cause of action for judicial review of the 

Commission’s dismissal decision. See id. § 30109(a)(8)(A) (§ 437g(a)(8)(A)) (detailing the 

procedure for seeking judicial review of an administrative dismissal and the scope of such 

review). That limited judicial review of FEC dismissal decisions applies equally to dismissals 

that result from a 3-3 vote. FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (“NRSC”) (“[A split vote] dismissal, like any other, is judicially reviewable 

under [§ 30109(a)(8) (§ 437g(a)(8))].”). In such cases, judicial review is based on the statement 

of reasons issued by the Commissioners who voted to dismiss. Id. “[T]hose Commissioners 

constitute a controlling group for purposes of the [dismissal] decision,” because their “rationale 

necessarily states the agency’s reasons for acting as it did.” Id. 

By statute, the judicial task in such an action “is limited.” Common Cause v. FEC, 842 

F.2d 436, 448 (D.C. Cir. 1988) (describing 52 U.S.C. § 30109(a)(8) (§ 437g(a)(8))). As the 

Supreme Court has explained, the Commission “has the ‘sole discretionary power’ to determine 

in the first instance whether or not a civil violation of the Act has occurred” and “Congress 

wisely provided that the Commission’s dismissal of a complaint should be reversed only if 

‘contrary to law.’” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); 

see Citizens for Responsibility & Ethics in Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 

2007) (“[J]udicial review of the Commission’s refusal to act on complaints is limited to 

correcting errors of law.”). 

FECA also expressly limits the scope of relief available to a plaintiff challenging an FEC 

dismissal decision. The reviewing court may only (a) declare that the Commission’s dismissal 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 12 of 27
5 

was “contrary to law” and (b) order the Commission to “conform with” the court’s declaration 

within 30 days. 52 U.S.C. § 30109(a)(8)(C) (§ 437g(a)(8)(C)). A judicial order to “conform 

with” a contrary-to-law declaration cannot mandate a different outcome on remand; the 

Commission remains free to reach the same outcome based on a different rationale. FEC v. 

Akins, 524 U.S. 11, 25 (1998) (explaining that even where a reviewing court finds that an FEC 

administrative dismissal was contrary to law, the Commission “(like a new jury after a mistrial) 

might later, in the exercise of its lawful discretion, reach the same result for a different reason” 

(citing SEC v. Chenery Corp., 318 U.S. 80 (1943))); Akins v. FEC, 146 F.3d 1049, 1050 (D.C. 

Cir. 1998) (“A holding that the FEC’s decision was invalid would leave the FEC free to reach the 

same decision on another ground.”); see, e.g., La Botz v. FEC, 889 F. Supp. 2d 51, 63 n.6 

(D.D.C. 2012) (clarifying that a judicial determination that an FEC dismissal of an administrative 

complaint was contrary to law does not mean “that the FEC is required to reach a different 

conclusion on remand” and suggesting the “possib[ility]” that “the [dismissal] . . . could have 

been justified entirely by the FEC’s prosecutorial discretion, which is ‘considerable’” (citation 

omitted)).

If a court declares that the Commission’s dismissal of an administrative complaint was 

contrary to law and the Commission fails to conform with such a declaration within 30 days, 

FECA permits the administrative complainant to bring “a civil action to remedy the violation 

involved in the original [administrative] complaint.” 52 U.S.C. § 30109(a)(8)(C) 

(§ 437g(a)(8)(C)); see FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 

(1985) (“NCPAC”) (explaining that administrative complainants may bring a civil action directly 

against the administrative respondents “[i]f, and only if, the FEC failed to obey . . . an order” to 

conform with a judicial declaration that an administrative dismissal was contrary to law). 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 13 of 27
6 

B. FECA’s Requirements for Political Committees 

FECA imposes several different kinds of disclosure obligations that apply depending 

upon the nature of the organization making the communications and the timing, form, and 

content of the communications. As relevant here, FECA provides that certain organizations that 

qualify as “political committees” must, inter alia, register with the Commission, appoint a 

treasurer, maintain names and addresses of contributors, and file periodic reports disclosing to 

the public most receipts of $200 or more. 52 U.S.C. §§ 30103, 30104(a)-(b) (§§ 433, 434(a)-

(b)). 

Under FECA, any “committee, club, association, or other group of persons” that receives 

more than $1,000 in “contributions” or makes more than $1,000 in “expenditures” in a calendar 

year is a “political committee.” 52 U.S.C. § 30101(4)(A) (§ 431(4)(A)); 11 C.F.R. § 100.5(a). 

The Act defines “contribution” and “expenditure” to include any payment of money to or by any 

person “for the purpose of influencing any election for Federal office.” 52 U.S.C. 

§ 30101(8)(A)(i), (9)(A)(i) (§ 431(8)(A)(i), (9)(A)(i)). In Buckley v. Valeo, however, the 

Supreme Court explained that the way FECA defines political-committee status “only in terms of 

amount of annual ‘contributions’ and ‘expenditures’” might result in an overbroad application by 

reaching “groups engaged purely in issue discussion.” 424 U.S. 1, 79 (1976) (per curiam). The 

Court therefore concluded that, in order to “fulfill the purposes of the Act,” FECA’s politicalcommittee provisions “need only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Id. 

Buckley thus established that an entity that is not controlled by a candidate must register as a 

political committee only if the group (1) crosses the $1,000 threshold of contributions or 

expenditures and (2) has as its “major purpose” the nomination or election of federal candidates. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 14 of 27
7 

FECA does not require a specific method for determining “major purpose” under 

Buckley. Nor does the Commission have any regulation or policy mandating a particular method 

for determining an organization’s major purpose. In 2004, the Commission considered, but 

declined to promulgate, a regulatory definition of “political committee” that would have 

encompassed all political organizations holding tax-exempt status under Section 527 of the 

Internal Revenue Code. Proposed Rules: Political Committee Status, 69 Fed. Reg. 11,736, 

11,748-11,749 (Mar. 11, 2004); see 26 U.S.C. §§ 527(a), (e)(1). In February 2007, the 

Commission published in the Federal Register a Supplemental Explanation and Justification 

further explaining its decision not to promulgate such a regulation. Rules and Regulations: 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (“Supplemental E&J”). The 

Supplemental E&J explained that the Commission would continue its longstanding practice of 

determining an organization’s major purpose through case-by-case adjudication. See id. at 5596-

97. It further explained that this case-by-case approach involves a fact-specific analysis of an 

organization’s conduct — including by reference to its public statements and spending activity 

— to evaluate whether the organization’s major purpose is the nomination or election of federal 

candidates. Id. at 5601. 

The Commission’s case-by-case approach to determining political-committee status has 

been repeatedly upheld. See Free Speech v. FEC, 720 F.3d 788, 797-98 (10th Cir. 2013), cert. 

denied, 134 S. Ct. 2288 (2014); Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th 

Cir. 2012) (“RTAA”), cert. denied, 133 S. Ct. 841 (2013); Shays v. FEC, 511 F. Supp. 2d 19, 29-

31 (D.D.C. 2007). 

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8 

II. FACTUAL BACKGROUND

A. The Administrative Proceedings Underlying this Action 

 On March 8, and June 7, 2012, plaintiffs filed administrative complaints with the FEC 

alleging that AAN and AJS, respectively, had violated FECA.2

 Plaintiffs alleged that AAN and 

AJS each met the legal standard to qualify as a “political committee,” 52 U.S.C. § 30101(4), 

(§ 431(4)), and that both had failed to comply with FECA’s registration and reporting 

requirements for groups that satisfy that standard, see generally 52 U.S.C. §§ 30102-30104, 

(§§ 432-434); Compl. ¶¶ 69, 83 (Docket No. 1). AJS and AAN each responded to plaintiffs’ 

allegations, and each denied that it qualified as a political committee and further denied it had 

violated FECA. (Compl. ¶¶ 20, 24.) 

 The Commission’s Office of General Counsel recommended that the Commission find 

reason to believe that both AAN and AJS were political committees and that each had violated 

FECA by failing to comply with the statutory registration and reporting requirements for such 

groups. (Id. ¶¶ 70-77, 84-91.) The Office of General Counsel further recommended that the 

Commission authorize an investigation to determine whether there was probable cause to believe 

that AAN and AJS had violated the Act. (Id. ¶ 70, 84.) 

On June 27, 2014, the Commission, by a vote of 3-3, did not find reason to believe that 

either AAN or AJS had violated FECA’s registration and reporting requirements for political 

committees. (Id. ¶¶ 78, 91.) Vice Chair Ravel and Commissioners Walther and Weintraub voted 

to find reason to believe and to authorize an investigation. (Id. ¶¶ 81, 94.) Chairman Goodman 

and Commissioners Hunter and Petersen voted against finding reason to believe the Act had been 

violated. (Id. ¶¶ 79, 92.) The Commission then voted unanimously to close the file and the 

 

2

 For the purposes of this motion only, the Commission “accept[s] as true” the factual 

allegations — but not the legal arguments or conclusions — asserted in plaintiffs’ complaint. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

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9 

Commissioners thereafter issued “statements of reasons” explaining their reasons for voting as 

they did. (Id. ¶¶ 79, 81, 92, 94.) 

III. THIS JUDICIAL-REVIEW ACTION 

Plaintiffs’ complaint challenges the Commission’s dismissal of the administrative 

complaints that plaintiffs filed with the Commission alleging that AAN and AJS had violated 

FECA’s political-committee registration and reporting requirements. Plaintiffs’ complaint seeks 

declarations that the Commission’s dismissal decisions were contrary to law and an order 

requiring the Commission to conform with such declarations, i.e., relief consistent with the 

limited scope of 52 U.S.C. § 30109(a)(8). 

Plaintiffs also purport to seek relief under the APA. First, plaintiffs purport to rely on the 

APA to challenge a single, specific portion of the legal analyses in the statements of reasons 

issued by Chairman Goodman and Commissioners Hunter and Petersen in the AAN and AJS 

administrative enforcement matters, and in a third enforcement matter in which plaintiffs did not 

participate, in which those Commissioners explained their reasons for finding that there was no 

reason to believe that the administrative respondents were required to comply with FECA’s 

registration and reporting requirements for political committees. (Compl. ¶¶ 2, 96-98, 111-14, 

119-22.) In particular, plaintiffs claim that the three Commissioners’ analyses of whether the 

respondents in these three enforcement matters had the “major purpose” of nominating or 

electing federal candidates constituted a “policy and/or de facto regulation” that was “adopted 

without notice and an opportunity for public comment” and that “is arbitrary, capricious, and 

abuse of discretion, and contrary to law.” (Id. ¶¶ 113, 121.) Plaintiffs purport to seek 

declaratory and injunctive relief regarding this aspect of three Commissioners’ legal analyses in 

certain administrative dismissal decisions. (Id. Prayer for Relief ¶¶ 5-6.) 

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10 

Second, plaintiffs purport to rely on the APA as a separate and independent basis for 

challenging the Commission’s dismissal of their administrative complaints against AAN and 

AJS. (Compl. ¶¶ 100-02, 104-06.) 

ARGUMENT 

I. STANDARD OF REVIEW 

Dismissal of a complaint is appropriate where, accepting the factual allegations in 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); 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 558 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim must 

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

entitlement to relief.” Bell Atl. Corp., 550 U.S. at 558. 

II. JUDICIAL REVIEW UNDER SECTION 30109 IS THE EXCLUSIVE 

PROCEDURE FOR CHALLENGING FEC DISMISSAL DECISIONS 

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

any FEC dismissal of an administrative complaint, including the two administrative dismissal 

decisions challenged here. This is clear not only from the statute’s express language and 

structure, but also from its legislative history. See Block v. Community Nutrition Inst., 467 U.S. 

340, 349 (1984) (explaining that a “detailed mechanism for judicial consideration of particular 

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

are “impliedly precluded”); Klayman v. Obama, 957 F. Supp. 2d 1, 20 (D.D.C. 2013) 

(considering the express language, structure, objectives, and legislative history of Foreign 

Intelligence Surveillance Act and concluding that the statute precluded plaintiffs’ claim for 

judicial review pursuant to the APA). 

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11 

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

action challenging an FEC dismissal of an administrative complaint.3

 The statute specifies that 

(a) the statutory cause of action is available only to a complainant who is “aggrieved by an order 

of the Commission dismissing a complaint filed by such party,” (b) any petition for judicial 

review of an FEC dismissal must be filed (i) in the United States District Court for the District of 

Columbia and (ii) “within 60 days after the date of the dismissal,” and (c) the available relief is a 

judicial declaration that “the dismissal of the complaint . . . is contrary to law” and an order 

“direct[ing] the Commission to conform with such declaration.” 52 U.S.C. § 30109(a)(8)(C) 

(§ 437g(a)(8)(C)). Section 30109(a)(8) further provides that if the Commission fails to conform 

to such a declaration, the complainant has a private right of action to remedy the violation 

alleged in its underlying administrative complaint. Id. 

Judicial review of final agency actions under the APA is available only where there is 

“no other adequate remedy” available. 5 U.S.C. § 704. As the Supreme Court has recognized, 

“Congress did not intend the general grant of review in the APA to duplicate existing procedures 

for review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)). Thus, the 

APA “‘does not provide additional judicial remedies in situations where the Congress has 

provided special and adequate review procedures.’” Id.(footnote omitted); see Garcia v. Vilsack, 

563 F.3d 519, 522 (D.C. Cir. 2009) (citing Bowen as recognizing that APA review is precluded 

“where Congress has otherwise provided a ‘special and adequate review procedure’”). 

 

3

 By contrast, FECA does not provide a mechanism for judicial review of the FEC’s 

formal rulemaking actions, 52 U.S.C. § 30107(a)(8) (§ 437d(a)(8)), and such rulemaking actions, 

unlike FEC administrative dismissals, are subject to APA review. See, e.g., Shays v. FEC, 414 

F.3d 76, 96 (D.C. Cir. 2005) (reviewing FEC regulations promulgated pursuant to statutory 

authority). This case, however, does not involve any rulemaking actions.

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12 

FECA’s “detailed mechanism for judicial consideration of particular issues at the behest 

of particular persons” clearly precludes other forms of judicial review, including review under 

the APA. See Block, 467 U.S. at 349. Where, as here, Congress has “fashion[ed] . . . an explicit 

provision for judicial review” of certain agency action and has “limit[ed] the time to raise such a 

challenge,” the Court of Appeals for the D.C. Circuit has found that “it is ‘fairly discernible’ that 

Congress intended that particular review provision to be exclusive.” Coal River Energy, LLC v. 

Jewell, 751 F.3d 659, 664 (D.C. Cir. 2014); see Garcia, 563 F.3d at 523 (“‘Congress did not 

intend to permit a litigant challenging an administrative denial . . . to utilize simultaneously both 

[the statutory review provision] and the APA.’”). 

FECA’s legislative history confirms Congress’s intent to ensure substantial deference to 

the expert, bipartisan FEC when it exercises its administrative discretion, and to limit the scope 

of judicial review of matters within that discretion. In establishing the Commission’s “exclusive 

jurisdiction with respect to the civil enforcement” of the Act, 52 U.S.C. § 30106(b)(1) 

(§ 437c(b)(1)), the House Report explained that Congress was using the term “exclusive” in its 

technical legal sense, to accord the Commission jurisdiction over matters within its special 

competence to the exclusion of all other tribunals. See H.R. Rep. No. 917, 94th Cong., 2d Sess. 

4 (1976), reprinted in FEC, Legislative History of Federal Election Campaign Act Amendments 

of 1976, at 804 (GPO 1977) (“1976 Legis. Hist.”). The Conference Committee expressly 

adopted the view of the House Report. H.R. Rep. No. 1057, 94th Cong., 2d Sess. 35 (1976), 

1976 Legis. Hist. at 1029. 

Together, the requirement of four votes for affirmative action, the broad 

investigatory powers granted . . . , the conciliation procedure mandated, and the 

substantial civil remedies provided represent a delicate balance designed to 

effectively prevent and redress violations, and to winnow out, short of litigation, 

insubstantial complaints and those matters as to which settlement is both possible 

and desirable. 

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13 

1976 Legis. Hist. at 804. Congress carefully created narrow exceptions to the Commission’s 

“exclusive jurisdiction to determine how and when” to enforce the federal campaign finance 

statutes, indicating it did not intend to leave open other avenues. NCPAC, 470 U.S. at 485-86. 

“The legislative history of [FECA] confirms that ‘[t]he delicately balanced scheme of procedures 

and remedies set out in the Act is intended to be the exclusive means for vindicating the rights 

and declaring the duties stated therein.’” Stockman v. FEC, 138 F.3d 144, 154 (5th Cir. 1998) 

(quoting 120 Cong. Rec. 35,314 (1974) (remarks of Rep. Hayes, Conference Committee 

Chairman)). 

 Every court that has considered the nature of the judicial-review procedures in section 

30109(a)(8), including the Court of Appeals for the D.C. Circuit, has found that those procedures 

are exclusive. In fact, the D.C. Circuit described section 30109(a)(8) “as specific a mandate as 

one can imagine,” and accordingly concluded that “the procedures it sets forth — procedures 

purposely designed to ensure fairness not only to complainants but also to respondents — must 

be followed before a court may intervene.” Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). 

The Court of Appeals for the Fifth Circuit similarly found “substantial evidence that Congress 

set forth the exclusive means for judicial review under [FECA]” in section 30109(a)(8). 

Stockman, 138 F.3d at 156. And at least one district court has explicitly concluded that FEC 

dismissal decisions are not reviewable under the APA because “FECA is Congress’ carefully 

crafted response to a delicate, highly political issue . . . [and] provides a careful blend of 

administrative and judicial enforcement powers.’” Durkin for U.S. Senate Comm. v. FEC, No. 

C80-503D, 2 Fed. Election Camp. Fin. Guide (CCH) ¶ 9147, at 51,113-114 (D.N.H. Oct. 30, 

1980) (copy attached as Exhibit A). That court concluded that Congress did not intend for 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 21 of 27
14 

“private parties [to] employ the general review provisions of the APA to precipitate judicial 

intervention in the FECA enforcement scheme.” Id. at 51,114. 

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

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

available to plaintiffs in this action. The portions of plaintiffs’ complaint that purport to rely on 

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

claim and should be dismissed. Therefore, as explained below, the Court should dismiss 

(a) counts three and four of plaintiffs’ complaint in their entirety, and (b) the portions of counts 

one and two of plaintiffs’ complaint that seek relief under the APA.4

III. COUNTS THREE AND FOUR OF PLAINTIFFS’ COMPLAINT SHOULD BE 

DISMISSED 

A. Plaintiffs’ Claims for Declaratory and Injunctive Relief Regarding a 

Purported “De Facto” Regulation Are Outside Section 30109(a)(8)’s 

Exclusive Scope 

Counts three and four of plaintiffs’ complaint purport to challenge a particular aspect of 

the analyses of the three Commissioners who voted not to pursue enforcement of the allegations 

in plaintiffs’ administrative complaints. Specifically, plaintiffs challenge those Commissioners’ 

approach to applying the Supreme Court’s mandate in Buckley that FECA’s political-committee 

requirements apply only to organizations whose “major purpose . . . is the nomination or election 

 

4

 In applying the statutory “contrary to law” standard in cases seeking administrative 

review under section 30109(a)(8), courts often consider whether the challenged FEC decision 

was “arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 

(D.C. Cir. 1986); see also, e.g., Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997) (per 

curiam); Akins v. FEC, 736 F. Supp. 2d 9, 16-17 (D.D.C. 2010). The Commission does not 

dispute that the same considerations are implicated by review of agency decisions under the 

APA, 5 U.S.C. § 706(2)(A). But the fact that the Court’s review of the Commission’s dismissal 

decisions under section 30109(a)(8) may entail considerations similar to those required under the 

APA does not entitle plaintiff to relief under the APA here. On the contrary, as explained supra 

pp. 10-14, such relief is clearly precluded by FECA. 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 22 of 27
15 

of a candidate.” Buckley, 424 U.S. at 79; see Compl. ¶¶ 80, 93, 112, 120. Plaintiffs prefer a 

broader approach to evaluating an organization’s major purpose, and favorably cite the analysis 

described in the statement of reasons issued by the other three members of the Commission “who 

voted to find reason to believe and to authorize further investigation.” (Compl. ¶¶ 81, 94.) 

The fact that counts three and four of plaintiffs’ complaint selectively focus on a 

particular aspect of the dismissal decisions that plaintiffs challenge neither negates the exclusive 

nature of judicial review under section 30109(a)(8), nor entitles plaintiffs to relief beyond the 

scope of what section 30109(a)(8) permits. In determining whether the Commission’s dismissals 

of plaintiffs’ administrative complaints were contrary to law, the Court will necessarily evaluate 

all of the legal analyses of the three Commissioners who voted not to find reason to believe any 

violations had occurred, including those Commissioners’ application of Buckley’s “major 

purpose” requirement. Thus, the standards developed and applied by the Commission through 

its case-by-case adjudications are reviewable in the context of section 30109(a)(8) cases. See, 

e.g., Shays v. FEC, 511 F. Supp. 2d 19, 29-31 (D.D.C. 2007). But such standards are not 

reviewable as “de facto” regulatory challenges, and plaintiffs are not entitled to an order 

enjoining the Commission (or any of its members) from “relying on” certain legal analyses in 

explaining their rationales in particular administrative enforcement matters. Nor are plaintiffs 

entitled to any other relief under the APA. “Since [FECA] creates a public cause of action for 

the enforcement of its provisions and a private cause of action only under limited circumstances, 

the maxim expressio unius est exclusio alterius would clearly compel the conclusion that the 

remedies created in the Act are the exclusive means to enforce the duties and obligations 

imposed by the Act.” Stockman, 138 F.3d at 153-54 (citations and brackets omitted). 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 23 of 27
16 

Plaintiffs’ attempt to avoid the narrow scope of section 30109(a)(8) by mischaracterizing 

(Compl. ¶¶ 113, 122) the particular legal analyses with which they disagree as a Commission 

“policy and/or de facto regulation” is fatally flawed. A statement of three Commissioners 

explaining their rationale for voting not to pursue an investigation or other enforcement action in 

a particular administrative enforcement matter does not — and by statute cannot — establish any 

policy or regulation on behalf of the Commission. Because FECA requires that any affirmative 

Commission action to investigate or formally advance enforcement against alleged violations be 

approved by a vote of at least four Commissioners, 52 U.S.C. §§ 30106(c), 30107(a) (§§ 437c(c), 

437d(a)), a group of three Commissioners is “controlling” for purposes of judicial review of a 

decision not to pursue such investigative or enforcement actions. NRSC, 966 F.2d at 1476. But 

three Commissioners cannot establish any policy or regulation on behalf of the agency. 52 

U.S.C. §§ 30106(c), 30107(a)(8) (§§ 437c(c), 437d(a)(8)); see supra p. 2-5. Plaintiffs appear to 

acknowledge this fact by relying on the alternative analysis described in the statement of reasons 

issued by the other three Commissioners. (Compl. ¶¶ 81, 94.) Split votes of the Commission 

regarding whether certain organizations had as their major purpose the nomination or election of 

federal candidates do not establish an affirmative FEC policy or generally applicable regulation. 

Plaintiffs’ allegations (Compl. ¶¶ 113, 121) about a lack of prior “notice and an opportunity for 

public comment” regarding the Commissioners’ explanatory statements issued in specific 

administrative enforcement matters are thus clearly misplaced. Counts three and four of 

plaintiffs’ complaint fail to state a claim for relief because the relief plaintiffs seek is outside the 

scope of section 30109(a)(8). 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 24 of 27
17 

B. Plaintiffs Are Neither Proper Nor Timely Challengers to the Commission’s 

Dismissal of an Earlier Administrative Complaint 

Counts three and four of plaintiffs’ complaint also purport to challenge a particular aspect 

of the analysis of three Commissioners who voted not to pursue enforcement of the allegations 

against another administrative respondent, Crossroads Grassroots Policy Strategies 

(“Crossroads”), in an earlier administrative enforcement matter in which neither of the plaintiffs 

here participated. (Compl. ¶¶ 96-98, 111, 119; see id. ¶ 98 (listing administrative complainants 

in the Crossroads matter, which do not include either of the plaintiffs here).) Plaintiffs’ attempt 

to challenge one aspect of the analysis of three Commissioners in the Crossroads administrative 

enforcement matter by mischaracterizing (Compl. ¶¶ 113, 122) that analysis as a “policy and/or 

de facto regulation” is fatally flawed for all of the reasons described above. 

In addition, plaintiffs here plainly lack a cause of action or standing to seek review of the 

Commission’s dismissal of the administrative complaint filed by other parties in the Crossroads 

matter. 52 U.S.C. § 30109(a)(8) (§ 437g(a)(8) (permitting only a party “aggrieved by an order of 

the Commission dismissing a complaint filed by such party” to seek judicial review of an FEC 

dismissal decision (emphasis added)); see Common Cause, 108 F.3d at 419 (explaining that to 

establish standing under section 30109(a)(8) (§ 437g(a)(8)), a plaintiff must show a “legally 

cognizable injury as a result of the FEC’s dismissal of its complaint” (emphasis added)); Judicial 

Watch v. FEC, 293 F. Supp. 2d 41, 45 (D.D.C. 2003) (“[T]he plain language of [section 

30109(a)(8)] makes clear that [judicial review] is only available to parties to the administrative 

complaint.”). 

Any attempt to seek judicial review of the Commission’s dismissal of the administrative 

complaint in the Crossroads matter at this point is also untimely. 52 U.S.C. § 30109(a)(8)(B) (§ 

437g(a)(8)(B) (requiring that any petition for review of an FEC dismissal of an administrative 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 25 of 27
18 

complaint “shall be filed . . . within 60 days after the date of the dismissal”). The 60-day limit is 

a jurisdictional bar that is “unalterable.” National Rifle Ass’n of Am. v. FEC, 854 F.2d 1330, 

1334 (D.C. Cir. 1988); accord Jordan v. FEC, 68 F.3d 518, 518-19 (D.C. Cir. 1995). As the 

public record reflects, the Commission dismissed the administrative complaint against 

Crossroads on December 3, 2013. See In the Matter of Crossroads Grassroots Policy Strategies, 

MUR 6396, Certification (Dec. 5, 2013), http://eqs.fec.gov/eqsdocsMUR/14044350869.pdf; 

Complaint, Public Citizen v. FEC, No. 14-0148 (RJL) (D.D.C. Jan. 31, 2014) (Docket No. 1) 

(action by administrative respondents in Crossroads matter for judicial review of FEC’s 

dismissal decision pursuant to 52 U.S.C. § 30109(a)(8) (§ 437g(a)(8))).5

 Plaintiffs filed their 

complaint in this case on August 20, 2014 — more than eight months later. 

IV. THE PORTIONS OF COUNTS ONE AND TWO OF PLAINTIFFS’ COMPLAINT 

THAT SEEK RELIEF UNDER THE APA SHOULD BE DISMISSED 

Counts one and two of plaintiffs’ complaint properly invoke section 30109(a)(8) and 

appear to seek relief consistent with the narrow scope of that judicial-review provision. 

Plaintiffs also, however, purport to rely on the APA, 5 U.S.C. § 706, in seeking declaratory relief 

regarding the Commission’s administrative dismissal decisions. (Compl. ¶¶ 100-01, 104-05.) 

To the extent counts one and two of plaintiffs’ complaint seek relief under the APA, 5 U.S.C. 

§ 706, such APA claims must be dismissed for the reasons explained above. 

CONCLUSION 

For all the foregoing reasons, the Court should dismiss (a) counts three and four of 

plaintiffs’ complaint in their entirety, and (b) the portions of counts one and two of plaintiffs’ 

 

 

5

 It is well settled that “public records [are] subject to judicial notice on a motion to 

dismiss.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting

Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)). 

Case 1:14-cv-01419-CRC Document 5 Filed 10/28/14 Page 26 of 27
19 

complaint that seek relief pursuant to the APA, 5 U.S.C. § 706, all of which fail to state a claim 

on which relief can be granted. 

Respectfully submitted, 

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

Deputy General Counsel 

Kevin Deeley 

Acting Associate General Counsel 

 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

Attorneys 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

October 28, 2014 (202) 694-1650 

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