IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER, 

Civil Action No. 18-0053 (TSC) 

 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

MEMORANDUM IN OPPOSITION TO DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS

Mark P. Gaber (D.C. Bar No. 988077) 

CAMPAIGN LEGAL CENTER 

1411 K St. NW, Ste. 1400 

Washington, DC 20005 

(202) 736-2200 

mgaber@campaignlegalcenter.org 

Counsel for Plaintiff

April 2, 2018

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 1

I. CLC Has Standing to Seek Redress for the Injury Congress Expressly Defined 

Pursuant to the Cause of Action Congress Expressly Authorized. ...................................... 1

A. Congress Created a Substantive Right to FEC Action on Administrative Complaints 

and Authorized a Judicial Remedy to Enforce that Right. .............................................. 1

B. The Context in Which Section 30109(a)(8)(A) Operates Indicates Congress Intended 

It to Convey a Substantive Right over Which Administrative Complainants Have 

Standing to Sue. ............................................................................................................... 8

CONCLUSION ............................................................................................................................. 11

CERTIFICATE OF SERVICE ..................................................................................................... 13

 

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TABLE OF AUTHORITIES 

Cases Page(s) 

Buckley v. Valeo, 

 424 U.S. 1 (1976) .................................................................................................................8 

Citizens for Percy ’84 v. FEC, 

 1984 WL 6601 (D.D.C. 1984) .............................................................................................8 

Common Cause v. FEC, 

 108 F.3d 413 (D.C. Cir. 1997) .............................................................................................9

CREW v. FEC, 

 236 F. Supp. 3d 378 (D.D.C. 2017) ................................................................................. 4-5 

DCCC v. FEC, 

 831 F.2d 1131 (D.C. Cir. 1987) ...........................................................................................4 

Families for Freedom v. Napolitano, 

 628 F. Supp. 2d 535 (S.D.N.Y. 2009) ..........................................................................2, 7, 9 

FEC v. Akins, 

524 U.S. 11 (1998) .............................................................................................................10 

Fund Democracy, LLC v. SEC, 

278 F.3d 21 (D.C. Cir. 2002) ......................................................................................... 9-10 

Gettman v. DEA, 

290 F.3d 430 (D.C. Cir. 2002) .............................................................................................9 

Herron for Congress v. FEC, 

 903 F. Supp. 2d 9 (D.D.C. 2012) .........................................................................................9 

In re Am. Rivers & Idaho Rivers United, 

 372 F.3d 413 (D.C. Cir. 2004) .....................................................................................3, 5, 7 

Judicial Watch, Inc. v. FEC, 

 293 F. Supp. 2d 41 (D.D.C. 2003) ...................................................................................6, 7 

Linda R.S. v. Richard D., 

 410 U.S. 614 (1973) .............................................................................................................2 

Lujan v. Defs. of Wildlife, 

 504 U.S. 555 (1992) .....................................................................................................2, 4, 5 

Nat’l Parks Conservation Ass’n v. Dep’t of Interior, 

 794 F. Supp. 2d 39 (D.D.C. 2011) .......................................................................................3 

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Pub. Citizen v. DOJ, 

 491 U.S. 440 (1989) .............................................................................................................5 

Warth v. Seldin, 

 422 U.S. 490 (1975) .............................................................................................................2 

WWHT, Inc. v. FCC, 

 656 F.2d 807 (D.C. Cir. 1981) .............................................................................................3 

Statutes Page(s) 

52 U.S.C. § 30119(a)(1) ...................................................................................................................6 

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

52 U.S.C. § 30109(a)(4)(A)(ii) ........................................................................................................8 

52 U.S.C. § 30109(a)(8)(A) .................................................................................................1, 3, 4, 5 

52 U.S.C. § 30109(a)(8)(C) .............................................................................................................4 

Other Authorities Page(s) 

125 Cong. Rec. S19099 (daily ed. Dec. 18, 1979) ...........................................................................4 

Richard J. Pierce, Administrative Law Treatise (5th ed. 2013) .......................................................3 

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INTRODUCTION 

 In 2016, Plaintiff Campaign Legal Center (“CLC”) filed an administrative complaint with 

Defendant Federal Election Commission (“FEC”) alleging that a private prison company had 

violated federal law by making contributions to the main super PAC supporting then-candidate 

Donald Trump. As the complainant, CLC is legally entitled to have the FEC “act on such complaint 

during the 120-day period beginning on the date the complaint is filed,” and if the FEC fails to 

take timely action, to “file a petition with the United States District Court for the District of 

Columbia.” 52 U.S.C. § 30109(a)(8)(A). The basis for CLC’s standing to sue here is thus clear: 

Congress specifically granted administrative complainants a substantive right to FEC action, and 

conferred upon them a statutory cause of action to sue to enforce that right. 

Rather than explain how Congress ran afoul of Article III of the Constitution in so doing, 

the FEC’s entire brief attacks strawmen—contending that CLC has not suffered certain specific 

injuries that might flow from the dismissal of its administrative complaint. These arguments have 

no bearing here, where the injury CLC seeks to redress through this statutorily authorized lawsuit 

is the FEC’s failure to take any action whatsoever. The Federal Election Campaign Act (“FECA”) 

and the case law are clear that the party seeking agency action has standing to sue to redress its 

injury on account of the agency’s failure to act. The FEC’s motion to dismiss should be denied. 

ARGUMENT 

I. CLC Has Standing to Seek Redress for the Injury Congress Expressly Defined 

Pursuant to the Cause of Action Congress Expressly Authorized. 

A. Congress Created a Substantive Right to FEC Action on Administrative 

Complaints and Authorized a Judicial Remedy to Enforce that Right. 

 CLC has standing to sue the FEC for its failure to act because Congress granted 

administrative complainants a substantive right to timely agency action and expressly authorized 

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complainants to file suit to enforce that right. It is axiomatic that “Congress may create a statutory 

right or entitlement the alleged deprivation of which can confer standing to sue even where the 

plaintiff would have suffered no judicially cognizable injury in the absence of statute.” Warth v. 

Seldin, 422 U.S. 490, 514 (1975); cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992); id. at 

580 (Kennedy, J., concurring in part and concurring in opinion) (“Congress has the power to define 

injuries and articulate chains of causation that will give rise to a case or controversy where none 

existed before, and I do not read the Court’s opinion to suggest a contrary view.”); Linda R.S. v. 

Richard D., 410 U.S. 614, 617 n.3 (1973). 

 When Congress enacts a statute authorizing a person to request agency action, and creates 

a cause of action to challenge the agency’s failure to act upon that request, it exercises its authority 

to “define injuries and articulate chains of causation.” Lujan, 504 U.S. at 580 (Kennedy, J., 

concurring in part and concurring in opinion). As a result, the party requesting the agency action 

has standing to file the lawsuit Congress expressly authorized in order to remedy the injury to the 

right Congress expressly created. In Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 

538 (S.D.N.Y. 2009), the plaintiffs argued that “an agency presented with a petition for rulemaking 

must, at a minimum, respond to that petition, and that the petitioning party has standing to compel 

a response unreasonably withheld.” The court rightfully found this a simple proposition, describing 

it as “clear that [the agency] is required to at least definitively respond to plaintiffs’ petition—that 

is, to either deny or grant the petition,” id. at 540, and “that plaintiffs, as the parties who submitted 

a petition for rulemaking to [the agency], have standing as to their . . . cause of action” for 

unreasonable delay—a point then-District Judge Chin explained the agency “conceded . . . 

correctly” at oral argument, id. at 539. 

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 In concluding that the plaintiffs properly invoked the court’s jurisdiction in Families for 

Freedom, the court cited the D.C. Circuit’s decision in In re American Rivers & Idaho Rivers 

United, 372 F.3d 413 (D.C. Cir. 2004). In American Rivers, plaintiffs sued an agency for its nonresponse to a petition requesting that it engage in interagency consultation regarding an 

infrastructure project’s environmental ramifications. The D.C. Circuit held that the agency’s 

contention that the legal basis for the rulemaking petition was misplaced was “beside the point” in 

that suit challenging the agency’s failure to respond. Id. at 419. The court explained that it was 

“not concerned [] with what answer [the agency] might ultimately give the petitioners,” but instead 

“its failure to give them any answer.” Id. (emphasis in original). This was not a novel holding. See, 

e.g., WWHT, Inc. v. FCC, 656 F.2d 807, 813 (D.C. Cir. 1981) (“[A]n agency must receive and 

respond to petitions for rulemaking . . . .”); Nat’l Parks Conservation Ass’n v. Dep’t of Interior, 

794 F. Supp. 2d 39, 44 (D.D.C. 2011) (“[A]n agency ‘is required to at least definitively respond to 

. . . [a] petition—that is, to either deny or grant the petition.’” (quoting Families for Freedom, 628 

F. Supp. 2d at 540)); Richard J. Pierce, Administrative Law Treatise 517 (5th ed. 2013) (“At a 

minimum, the right to petition for rulemaking entitles a petitioning party to a response to the merits 

of the petition.”). 

 These authorities demonstrate precisely why CLC has standing to sue the FEC for failing 

to act upon its administrative complaint. Congress provided that “[a]ny person who believes a 

violation of [FECA] has occurred[] may file a complaint with the [FEC],” and that “[a]ny party 

aggrieved by an order of the [FEC] dismissing a complaint filed by such party . . . or by a failure 

of the [FEC] to act on such complaint during the 120-day period beginning on the date the 

complaint is filed, may file a petition with the United States District Court for the District of 

Columbia.” 52 U.S.C. § 30109(a)(8)(A) (emphasis added). In such a proceeding, “the court may 

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declare . . . the failure to act is contrary to law, and may direct the [FEC] to conform with such 

declaration within 30 days, failing which the complainant may bring, in the name of such 

complainant, a civil action to remedy the violation involved in the original complaint.” 52 U.S.C. 

§ 30109(a)(8)(C). 

 Through this statutory scheme, Congress exercised its power to “define injuries and 

articulate chains of causation that will give rise to a case or controversy” sufficient to confer Article 

III standing. Lujan, 504 U.S. at 580 (Kennedy, J., concurring). Here, Congress expressly defined 

an injury and a chain of causation—the FEC’s failure to act upon an administrative complaint 

within 120 days—and thus CLC’s complaint, filed pursuant to the express cause of action 

Congress created, states a “case or controversy” seeking to redress the injury to its statutorily 

conferred right.1 Id. CLC’s injury-in-fact is the FEC’s failure to act upon its administrative 

complaint, an injury caused by FEC’s inaction exceeding 120 days, and an injury this lawsuit can 

redress given this Court’s authority to order the FEC to take action pursuant to 52 U.S.C. 

§ 30109(a)(8)(C). Just like the plaintiffs who had standing to sue for inaction in Families for 

Freedom, CLC has standing to sue for inaction here.2 Indeed, CLC’s position is even stronger, in 

light of the explicit timetable Congress adopted in FECA. See 52 U.S.C. § 30109(a)(8)(A). 

 

1

 That Congress intended to define injuries and chains of causation sufficient to confer standing is 

amply demonstrated by the plain text of §§ 30109(a)(8)(A) & (C), but the legislative history 

underscores the point. Senator Claiborne Pell, the chair of the relevant Senate committee, stated 

that the provision was designed to ensure “that the Commission does not shirk its responsibility to 

decide” whether to pursue administrative complaints, and thus Congress “provide[d] that a total 

failure to address a complaint within 120 days is a basis for a court action.” 125 Cong. Rec. S19099 

(daily ed. Dec. 18, 1979) (statement of Sen. Pell). 

2

 The fact that CLC’s administrative complaint seeks enforcement rather than rulemaking is 

irrelevant for standing purposes. Just as an agency must explain why it takes any given rulemaking 

action, the FEC must “explain coherently the path [it is] taking” when it resolves an enforcement 

matter. DCCC v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987). Likewise, the FEC’s prosecutorial 

discretion does not extend to simply ignoring administrative complaints. Cf. CREW v. FEC, 236 

F. Supp. 3d 378, 390 (D.D.C. 2017) (“When the FEC exercises prosecutorial discretion, its 

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In conferring standing to the administrative complainant to sue the FEC for inaction, 

Congress did not improperly “confer[] upon all persons [] an abstract . . . ‘right’ to have the 

Executive observe the procedures required by law.” Lujan, 504 U.S. at 573 (emphasis in original). 

Rather, Congress created a tangible right for a limited and narrowly defined set of persons—a right 

to agency action enforceable by the administrative complainant, not just any observer desiring 

timely FEC consideration of enforcement matters.3 Congress acted within its authority in doing 

so. Cf. Pub. Citizen v. DOJ, 491 U.S. 440, 449-50 (1989) (reasoning that party demanding 

disclosure under Federal Advisory Committee Act did not suffer a “lessen[ed] . . . injury” because 

another group could have requested disclosure and sued, citing similar rule with respect to 

Freedom of Information Act). It is beyond dispute that CLC has suffered an injury to its statutorily 

created right—a right to action on its administrative complaint—and that Congress expressly 

authorized CLC’s lawsuit to redress that injury. Article III requires nothing more. 

 The FEC’s brief disregards the plain text of FECA and the case law holding that parties 

who seek agency action have standing to sue over agency inaction. The FEC instead proceeds as 

if this were a lawsuit challenging the dismissal of CLC’s complaint, rather than the FEC’s failure 

to take any action whatsoever. But the injuries faced upon dismissal of an administrative complaint 

 

controlling statement of reasons must be sufficiently detailed so as to allow a reviewing court to 

determine why the controlling commissioners decided to forego prosecution.”); see also FEC Br. 

at 14 (noting that Congress created an “explicit provision for judicial review of . . . [FEC] action 

or failure to take action” (internal quotation marks omitted)).

3

 Congress expressly defined the conditions that would “aggrieve” a complainant with respect to 

delay—the failure of the agency to act within 120 days—but did not expressly define the 

conditions that would “aggrieve” a complainant if the complaint was dismissed. See 52 U.S.C. 

§ 30109(a)(8)(A). The statutory text thus demonstrates that Congress intended for a complainant 

whose complaint is unlawfully delayed to have standing to sue, even if that complainant would 

not have standing to judicially challenge the dismissal of the complaint. The latter must be judged 

based upon the substance of the FEC’s ultimate decision, but as the D.C. Circuit instructed in 

American Rivers, now is not the time to consider the substantive merits of the complaint. See 372 

F.3d at 419. 

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are distinct from the injuries faced by the FEC’s inaction, and the FEC’s near-complete reliance 

on case law regarding the former is therefore misplaced. The FEC contends that CLC lacks 

standing to vindicate an informational interest vis-à-vis FECA’s reporting requirements.4 See FEC 

Br. at 9-12. But the cases the FEC cites for this proposition center around a decision by the FEC 

to dismiss a complaint. The FEC also alleges that CLC lacks standing based on a desire to have 

the FEC “get the bad guys.” FEC Br. at 8-9. Again, this argument plainly misstates the issue here. 

The FEC cites cases for this proposition that are about FEC action—the substantive dismissals of 

complaints. Those cases involve the antithesis of the sole issue here: FEC inaction. Congress did 

not create a right to any particular substantive outcome following the FEC’s consideration of an 

administrative complaint, and thus an administrative complainant is not necessarily aggrieved by 

a dismissal merely because it instituted the administrative proceedings. But an administrative 

complainant whose complaint is ignored is aggrieved, because Congress conferred the right to 

agency action and created a cause of action when that right was injured. The Court should reject 

the FEC’s invitation to conflate the two statutory causes of action and the critical distinctions 

between the two types of injuries that give rise to them. 

 The only case the FEC cites involving standing in a case challenging agency inaction is 

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) (Leon, J.), but that case predated 

the D.C. Circuit’s decision in American Rivers. In Judicial Watch, the Court noted that the plaintiff 

 

4

 In so claiming, the FEC incorrectly asserts that “CLC already alleges that GC Holdings [a whollyowned subsidiary of GEO Group Inc.] is the true source of the funds” that were contributed to the 

super PAC, FEC Br. at 10-11 (citing Compl. ¶¶ 1, 8, 18), and thus CLC has no informational 

injury. The paragraphs the FEC cites do not use the phrase “true source,” nor does CLC purport to 

know the true source of GC Holdings’ reported contributions to the super PAC. Indeed, no one yet 

knows whether GEO Group Inc. is the true source of GC Holdings’ contributions—nor is anyone 

likely to know until the FEC takes some action on CLC’s administrative complaint. And in any 

event, FECA prohibits direct and indirect contributions by federal contractors. See 52 U.S.C. §§ 

30119(a)(1) & (2). 

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“appears to claim that the [FEC’s] delay in responding to his claim is, in and of itself, an injury in 

fact,” although “this argument was not specifically set forth in plaintiffs’ papers,” but only was 

raised “during oral argument.” Id. at 48. In rejecting the unbriefed argument, the Court relied 

exclusively upon a case involving standing to challenge dismissal of an administrative complaint. 

See id. (quoting Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997)). But as explained 

above, the injuries caused by inaction and dismissal are distinct; Congress has defined a particular 

statutory right to agency action and authorized a cause of action to enforce that right in this Court. 

In a subsequent decision challenging agency inaction, rather than the substance of agency action, 

the D.C. Circuit explained that the legal merit of the party’s substantive request is “beside the 

point,” because the court was not concerned with what the agency “might ultimately give 

petitioners,” but rather “its failure to give them any answer.” American Rivers, 372 F.3d at 419 

(emphasis in original). That is why, as the court explained in Families for Freedom, it is “clear 

that [an agency] is required to at least definitively respond,” 628 F. Supp. 2d at 540, and that 

“plaintiffs, as the parties who submitted a petition for rulemaking . . . have standing as to their [] 

cause of action,” id. at 539, for unreasonable delay. Because agency inaction is indeed a distinct 

injury, this Court should similarly adhere to the reasoning of American Rivers instead of Judicial 

Watch.

 In sum, the FEC offers no rationale for how Congress’s specific authorization of judicial 

redress against the injury of FEC inaction could have contravened Article III. The Court should 

disregard the FEC’s strawmen arguments and deny its motion to dismiss. 

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B. The Context in Which Section 30109(a)(8)(A) Operates Indicates Congress 

Intended It to Convey a Substantive Right over Which Administrative 

Complainants Have Standing to Sue. 

As explained above, Congress made clear that it was conferring a substantive right to 

agency action, redressable by an expressly authorized civil suit, not merely a procedural right that 

confers no standing to sue. Although that is apparent from the text of the statute alone, it is also 

apparent from the context in which the provision operates. 

First, the right to timely FEC action exhibits congressional awareness of the right’s 

important and substantive effects on the democratic process—a process that does not tolerate 

delay. The decision to include a 120-day timeframe for agency action in § 30109(a)(8)(A) reflects 

Congress’s reasoned judgment about FECA enforcement, a judgment this Court should vindicate. 

Members of Congress, all of whom were candidates in federal elections, understood well that each 

election is an exigent event and that FECA enforcement is most effective when done before 

Election Day. Cf. Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (explaining that FECA was designed, 

in part, to inform the electorate so it could make decisions in evaluating candidates).5

 Indeed, 

Congress was sufficiently worried about failures to vindicate FECA before Election Day that it 

provided an abbreviated timeframe for the FEC to “correct or prevent” violations occurring shortly 

before an election. See 52 U.S.C. § 30109(a)(4)(A)(ii). 

 

5

 Indeed, this Court has in the past chastised the FEC for its failure to take any action on a complaint 

involving excessive contributions in time for any enforcement action to make a difference. See 

Citizens for Percy ’84 v. FEC, 1984 WL 6601, at *3 (D.D.C. 1984) (“The significance of the threat 

[of allegedly unlawful contributions] to the integrity of the general election should have been 

obvious from the face of the complaint . . . . [T]he Commission’s casual handling of this matter is 

highlighted by the fact that the Commission’s finding of reason to believe [the law had been 

violated] was not made until . . . more than five months after the complaint was filed. Such dilatory 

conduct is not explained and cannot be condoned if the statute is to have any meaning.”). 

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Congress’s 120-day window is best understood as reflecting this firsthand knowledge and 

attempting to ensure that, when possible, complainants have their complaints acted upon on a 

timetable that does not render empty the FEC’s eventual action on the complaint. Congress was 

surely not blind to the reality that once an election law matter reaches the judiciary, it is unlikely 

that it will be resolved prior to Election Day. See, e.g., Herron for Congress v. FEC, 903 F. Supp. 

2d 9, 14 (D.D.C. 2012) (noting that “most electoral controversies” cannot “be fully litigated prior 

to election day”). Thus, Congress enacted section 30109(a)(8)(A) to emphasize the importance of 

a complainant’s right to efficient action at the agency level and to make that right judicially 

enforceable. The 120-day timeframe prior to judicial review reflects a congressional attempt to 

give the FEC sufficient time to act while also ensuring that complainants faced with FEC footdragging could turn to the federal judiciary—not to address the underlying dispute, but to force 

the FEC to do so. The importance of that right in helping to ensure transparent and informed voting 

underscores its substantive character. 

Second, the injury to an administrative complainant resulting from FEC inaction is distinct 

from the injury that results from the substance of FEC action. Thus, administrative complainants 

have standing to sue to enforce their right to action, see Families for Freedom, 628 F. Supp. 2d at 

539-40, but because Congress did not create a right to any particular outcome once the FEC 

actually acts, a party with no concrete injury resulting from a given outcome may not raise a 

procedural challenge to an FEC dismissal decision. See Common Cause v. FEC, 108 F.3d 413, 

418-19 (D.C. Cir. 1997); see also Gettman v. DEA, 290 F.3d 430, 433-34 (D.C. Cir. 2002) (holding 

that party cannot rely upon statutory right to participate in agency proceeding for standing to 

challenge substance of agency decision through statute authorizing judicial petition for review of 

final agency action); Fund Democracy, LLC v. SEC, 278 F.3d 21, 24, 27 (D.C. Cir. 2002) (holding 

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that plaintiff had no standing to seek judicial review of final SEC action for procedural right created 

by SEC regulations). The fact that a litigant may ultimately be unable to challenge the dismissal 

of its administrative complaint has no bearing on whether the right to agency action is substantive 

in nature. Congress, having created a distinct right applicable to all administrative complainants—

the right to agency action within 120 days—and in the same sentence having characterized those 

denied that right as “aggrieved” and authorized to sue, must be viewed as having intended that 

right to be a substantive one enforceable in court. See FEC v. Akins, 524 U.S. 11, 19 (1998) (noting 

that “[h]istory associates the word ‘aggrieved’ with a congressional intent to cast the standing net 

broadly”). 

To conclude otherwise would lead to a situation in which the FEC could insulate itself from 

meaningful judicial review for failure to act except in the narrowest of circumstances. This cannot 

be squared with the plain text of section 30109, in which Congress not only contemplated, but 

expressly empowered, judicial review of inaction after 120 days. To accept the FEC’s invitation 

to conflate standing to challenge inaction with standing to challenge adverse action would defeat 

this congressional judgment. If the FEC were correct, see FEC Br. at 7-12, the only categories of 

administrative complaints for which the plain text of section 30109(a)(8)(A) would be meaningful 

would be those alleging reporting violations or a narrow class of electoral competitors who would 

be obviously “aggrieved” by a dismissal benefiting their electoral opponents. All other types of 

FECA violations—e.g., excessive contributions, unlawful coordinated expenditures, foreign 

contributions, unlawful corporate contributions—would be exempt from section 30109(a)(8)(A)’s 

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requirement that the FEC actually take action, because there would be no way to constitutionally 

enforce the right to agency action Congress expressly created for administrative complainants.6 

Congress expressly created a right applicable to all administrative complainants—a right 

to have the FEC take some action—and in the same breath created a cause of action to sue in this 

Court to enforce that right. Congress cannot have intended to have created a meaningless right. 

Rather, the plain text of the statute shows that Congress created a substantive right to agency 

action, and administrative complainants, by virtue of their status as complainants, have standing 

to vindicate that right in court. 

* * * 

 The FEC’s arguments supporting dismissal rest upon inapposite case law about an issue 

not before this Court—whether CLC will have standing to sue the FEC in the event it eventually 

dismisses CLC’s administrative complaint. We are not there yet. The statute and the case law make 

clear that CLC has standing to sue the FEC to take action on its administrative complaint. 

CONCLUSION 

 For the foregoing reasons, the FEC’s motion to dismiss should be denied.7

 

 

6

 Adopting the FEC’s position would also mean that a bloc of three Federal Election 

Commissioners could insulate themselves not only from judicial review, but also from public 

accountability, by declining to vote to close files in which they find no reason to believe a violation 

has occurred. 

7

 To the extent the Court concludes section 30109(a)(8)(A) provides an adequate mechanism for 

judicial review of the FEC’s failure to act, CLC does not object to the dismissal of its separate 

APA claim. 

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April 2, 2018 Respectfully submitted, 

/s/ Mark P. Gaber

Mark P. Gaber (D.C. Bar No. 988077) 

CAMPAIGN LEGAL CENTER 

1411 K Street NW, Suite 1400 

Washington, DC 20005 

(202) 736-2200 

mgaber@campaignlegalcenter.org 

Counsel for Plaintiff 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on April 2, 2018, I caused the foregoing to be served on all counsel of 

record via the Court’s CM/ECF system. 

 /s/ Mark P. Gaber

 Mark P. Gaber 

 Counsel for Plaintiff

 

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