UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 PLAINTIFF FEC’S 

 MOTION TO DISMISS 

 

PLAINTIFF FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS DEFENDANT’S COUNTERCLAIMS 

The Federal Election Commission respectfully moves this Court, pursuant to Fed. R. Civ. 

P. 12(b)(6), to dismiss the counterclaims filed by Jody L. Novacek, the Republican Victory 

Committee, Inc. (“RVC”), BPO, Inc., and BPO Advantage LP because defendants can prove no 

set of facts that would entitle them to relief. A brief in support of this motion and a proposed 

order is submitted herewith. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 1 of 18
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 PLAINTIFF FEC’S 

 MEMORANDUM IN SUPPORT 

 OF ITS MOTION TO DISMISS 

 COUNTERCLAIMS 

PLAINTIFF FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT 

OF ITS MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 2 of 18
TABLE OF CONTENTS 

I. NOVACEK FAILS TO STATE A CLAIM AGAINST 

THE COMMISSION .......................................................................................... 2 

A. Novacek Pleads No Underlying Facts and Identifies 

No Cause of Action ................................................................................ 2 

B. Novacek Has Failed to State a Claim Against 

the Commission ...................................................................................... 3 

C. Novacek’s Request for Damages is Barred Because the United 

States Has Not Waived Sovereign Immunity ......................................... 8 

D. Novacek Has No Cause of Action for any Alleged 

Constitutional Violations ....................................................................... 8 

E. If Novacek’s Counterclaims Are Construed as Alleging 

Selective Prosecution, They Must Fail ................................................... 9 

F. Counterclaims Have Not Been Properly Brought By the 

RVC and BPO ....................................................................................... 10 

II. CONCLUSION ................................................................................................. 11 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 3 of 18
TABLE OF AUTHORITIES 

CASES 

Adeleke v. Heaton, No. 08-11211, 2009 WL 3682539 

(5th Cir. Nov. 5, 2009) ............................................................................................. 3 

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) ................................ 5

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................... 2, 3

AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001) ...................................................... 3 

Atlantic Richfield Co. v. Dep’t of Energy, 769 F.2d 771 

(D.C. Cir. 1984) ........................................................................................................ 6 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................... 2 

Bennett v. Spear, 520 U.S. 154 (1997) ........................................................................... 5 

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ......................................... 8 

Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir. 1995) ....................................... 3 

Donovan v. Road Rangers Country Junction, Inc., 

736 F.2d 1004 (5th Cir. 1984) ................................................................................ 10 

Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002) .................................................................. 8 

Falls v. Town of Dyer, 875 F.2d 146 (7th Cir. 1989) ..................................................... 9 

FDIC v. Meyer, 510 U.S. 471 (1994) ............................................................................. 8 

FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) ................................................... 7 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) .................................................................................. 7 

Freeman v. United States, 556 F.3d 326 (5th Cir. 2009) ................................................ 8

Gold v. SEC, 48 F.3d 987 (7th Cir. 1995) .................................................................... 4, 5 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 4 of 18
Hannah v. Larche, 363 U.S. 420 (1960) ..................................................................... 4, 5 

Heckler v. Chaney, 470 U.S. 821 (1985) ....................................................................... 6 

In re Sealed Case, 131 F.3d 208 (D.C. Cir. 1997) .......................................................... 6

Lane v. Pena, 518 U.S. 187 (1996) ................................................................................. 8 

K.M.A., Inc. v. General Motors Acceptance Corp., 

652 F.2d 398 (5th Cir.1982) ................................................................................... 10 

McLaughlin v. Lodge 647, 876 F.2d 648 (8th Cir. 1989) ............................................... 6 

NAACP v. Meese, 615 F. Supp. 200 (D.D.C. 1985) ....................................................... 6 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ................................................................... 4 

SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984) ....................................................... 4 

Smith v. Commonwealth of Virginia, No. 3:08-800, 2009 WL 2175759 

(4th Cir. July 16, 2009) ............................................................................................. 3 

Southwest Express Co., Inc. v. Interstate Commerce Comm’n, 

670 F.2d 53 (5th Cir. 1982) .................................................................................... 10 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) ............................................................. 7 

Taylor v. Books a Million, Inc., 296 F.3d 376 (5th Cir. 2002) ....................................... 3 

Taylor v. FDIC, 132 F.3d 753 (D.C. Cir. 1997) ............................................................. 8 

United States v. Armstrong, 517 U.S. 456 (1996) .......................................................... 9 

United States v. Bourgeois, 964 F.2d 935 (9th Cir. 1992) ........................................... 10 

United States v. Sage Pharmaceuticals, Inc., 

210 F.3d 475 (5th Cir. 2000) .................................................................................... 4 

United States v. Mitchell, 463 U.S. 206 (1983) .............................................................. 8 

United States v. Morgan, 313 U.S. 409 (1941) ............................................................... 6 

United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992) .................................. 8 

Wayte v. United States, 470 U.S. 598 (1985)................................................................ 10 

Woodfield v. Bowman, 193 F.3d 354 (5th Cir. 1999) ..................................................... 2 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 5 of 18
STATUTES 

Federal Election Campaign Act of 1971, as amended, codified at 

2 U.S.C. §§ 431-455 ................................................................................................. 1 

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

2 U.S.C. § 437c(b)(1) ................................................................................................. 1, 7 

2 U.S.C. § 437d(a) ......................................................................................................... 1

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

2 U.S.C. § 437g ............................................................................................................... 1 

2 U.S.C. § 437g(a) .......................................................................................................... 4

2 U.S.C. § 437g(a)(1) ...................................................................................................... 4 

2 U.S.C. §437g(a)(3) ....................................................................................................... 4 

2 U.S.C. § 437g(a)(4) ...................................................................................................... 5 

2 U.S.C. § 437g(a)(4)(A) ................................................................................................ 6 

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

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

2 U.S.C. § 437g(a)(6)(A) ................................................................................................ 5 

2 U.S.C. § 437g(a)(6)(B) ................................................................................................ 5 

2 U.S.C. § 437g(a)(8)(A) ................................................................................................ 7 

5 U.S.C. § 702 ................................................................................................................. 9 

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

11 C.F.R. § 111.15(a)...................................................................................................... 7

MISCELLANEOUS 

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

2A James W. Moore et al., Moore's Federal Practice ¶ 12.07 (1995) ............................ 3

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 6 of 18
1 

 Pursuant to Fed. R. Civ. P. 12(b)(6), plaintiff Federal Election Commission (“FEC” or 

“Commission”), has moved to dismiss the counterclaims filed by Jody L. Novacek, the 

Republican Victory Committee, Inc. (“RVC”), BPO, Inc., and BPO Advantage LP because 

defendants (collectively “Novacek”) can prove no set of facts that would entitle them to relief. 

Defendants’ counterclaims allege that the Commission “ignored evidence” (Claim 1), proceeded 

with “malice and contempt” (Claim 2), and was “negligent” in how it conducted its investigation 

(Claim 3). All three claims allege a defect in the administrative process without identifying a 

specific cause of action or alleging any specific underlying facts. The claims — addressed 

collectively below — should be dismissed because they fail to state a claim and fail to identify a 

statutory waiver of sovereign immunity. 

The Commission brought this civil enforcement action under the Federal Election 

Campaign Act, as amended, 2 U.S.C. §§ 431-55 (“Act”) after Novacek made fundraising 

solicitations by phone and in mailers that fraudulently misrepresented the source of the 

solicitation as the Republican Party and/or Republican National Committee (“RNC”), in 

knowing and willful violation of the Act. Compl. ¶ 1, Mar. 9, 2009. Novacek made 

misrepresentations to vendors and the general public stating or implying that the RVC was 

raising money for the Republican Party and the RNC. Id. Novacek and the RVC raised more 

than $75,000 as a result of these solicitations. Id. In addition, Novacek and the RVC violated 

the Act by failing to include on their communications the required disclaimer information in the 

manner specified by statute. Id. 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation and civil enforcement of the Act. 

See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), and 437g. The FEC is a non-partisan, sixCase 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 7 of 18
2

member Commission, of which no more than three members may belong to the same political 

party. 2 U.S.C. § 437c(a)(1). After an investigation, if at least four Commissioners vote to find 

“probable cause to believe” that a violation has occurred, the Commission must attempt to 

correct or prevent the violation by engaging in conciliation with the respondent for at least 30 

days. 2 U.S.C. § 437g(a)(4)(A)(i). If conciliation fails, the Commission may bring a de novo

suit against the respondent, if at least four Commissioners affirmatively vote to do so. 2 U.S.C. 

§ 437g(a)(6).1

I. NOVACEK FAILS TO STATE A CLAIM AGAINST THE COMMISSION 

A. Novacek Pleads No Underlying Facts and Identifies No Cause of Action 

 The Court should dismiss defendants’ claims because their general allegations are devoid 

of factual support and fail to identify a cause of action. To survive a motion to dismiss, a 

plaintiff is required to plead “enough facts to state a claim to relief that is plausible on its face.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 

Counterclaims and affirmative defenses are subject to the same pleading requirements as 

complaints. Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). 

 Novacek offers no facts to support her claims. When she alleges that the Commission 

“ignored evidence,” she does not offer facts explaining what evidence was ignored or showing 

how she was harmed by that alleged action. Likewise, when Novacek alleges “malice,” 

“contempt,” and a “negligent investigation,” she does not allege how those labels and 

 

1

 A more extensive description of the Commission’s statutory enforcement procedures, the 

procedural history in this case, and the underlying statutory violations can be found in the 

Commission’s Memorandum in Support of its Motion for Summary Judgment, filed 

contemporaneously with this motion. 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 8 of 18
3

conclusions could be reached. “A pleading that offers labels and conclusions or a formulaic 

recitation of the elements of a cause of action will not do.” Iqbal, 129 S. Ct. at 1949 (internal 

citations and quotation marks omitted). “While pro se complaints are held to less stringent 

standards than those drafted by lawyers, ‘conclusory allegations or legal conclusions 

masquerading as factual conclusions will not suffice to prevent a motion to dismiss.’” Adeleke v. 

Heaton, No. 08-11211, 2009 WL 3682539, at *2 (5th Cir. Nov. 5, 2009) (quoting Taylor v. 

Books a Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (and applying standard from Iqbal to 

complaint by pro se plaintiff); see also Smith v. Commonwealth of Virginia, No. 3:08-800, 2009 

WL 2175759, at *2 (4th Cir. July 16, 2009) (“The Iqbal/Twombly standard applies to pro se

litigants as well as represented parties. . . .”). 

 Novacek’s conclusory labels also do not constitute causes of action. Novacek has failed 

not only to allege the necessary facts, but also to set forth the elements of any causes of action. 

“‘Dismissal is proper if the complaint lacks an allegation regarding a required element necessary 

to obtain relief. . . .’” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) 

(quoting 2A James W. Moore et al., Moore's Federal Practice ¶ 12.07 (1995) (footnote omitted)). 

Malice, contempt, ignoring evidence, and negligent investigation are not causes of action. 

 B. Novacek Has Failed to State a Claim Against the Commission 

Novacek’s allegation that the Commission improperly conducted the administrative 

process that underlies this action amounts to nothing more than a generalized complaint without 

any basis in law. At their core, Novacek’s claims are based entirely on ipse dixit — she believes 

none of the Commission’s actions were justified because she believes she did not violate the Act. 

Resp. to Compl. ¶¶ 6-8, filed July 29, 2009 (Dkt # 12). There is no legal basis for Novacek to 

challenge the Commission’s actions here; instead, she must defend herself on the merits in this 

action. AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (after an agency files suit, “[o]f 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 9 of 18
4

course, the Company could not challenge that decision as final agency action under the APA; it 

would instead simply defend itself against the suit”); United States v. Sage Pharmaceuticals, 

Inc., 210 F.3d 475, 480 (5th Cir. 2000) (rejecting claim that the government’s action was 

arbitrary and capricious under the APA because the government allegedly had not taken similar 

action against defendant’s competitors: “a claim that the FDA’s action is arbitrary and 

capricious is not a defense to an enforcement proceeding”). 

Novacek’s argument that she was not provided with certain information upon request 

during the administrative investigation or a hearing upon request, Counter Compl. ¶ 4, is not a 

basis for damages when, as here, there is no statutory basis for such opportunities or damages. 

The procedures in 2 U.S.C. § 437g(a) provide respondents like Novacek numerous statutory 

opportunities to respond to the administrative complaints filed against them and to the General 

Counsel’s recommendation, if any, that the Commission find “probable cause” to believe that 

they have violated the Act. See 2 U.S.C. §§ 437g(a)(1), 437g(a)(3); Perot v. FEC, 97 F.3d 553, 

559 (D.C. Cir. 1996) (explaining that section 437g(a) procedures were “purposely designed to 

ensure fairness not only to complainants but also to respondents”). But Novacek cites no 

provision providing her additional rights, and there is none. Moreover, to the extent that 

Novacek is suggesting a due process claim, there is no such cause of action regarding the 

conduct of agency investigatory proceedings that do not adjudicate legal rights. SEC v. Jerry T. 

O’Brien, Inc., 467 U.S. 735, 742 (1984); Hannah v. Larche, 363 U.S. 420, 440-43 (1960); Gold 

v. SEC, 48 F.3d 987, 991 (7th Cir. 1995) (“Due process does not require notice, either actual or 

constructive, of an administrative investigation into possible violations of the securities laws.”) 

(footnote omitted). 

 As the Supreme Court explained in Hannah: 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 10 of 18
5

[W]hen governmental agencies adjudicate or make binding determinations 

which directly affect the legal rights of individuals, it is imperative that those 

agencies use the procedures which have traditionally been associated with the 

judicial process. On the other hand, when governmental action does not partake 

of an adjudication, as for example, when a general fact-finding investigation is 

being conducted, it is not necessary that the full panoply of judicial procedures 

be used. 

Hannah, 363 U.S. at 442; see also Gold, 48 F.3d at 991 n.8 (quoting Hannah). 

The Commission has no legal authority to adjudicate legal rights or impose remedies in 

its administrative investigations under 2 U.S.C. § 437g(a). If the Commission finds, after an 

investigation, that there is probable cause to believe the Act has been violated, it is required to 

attempt to resolve the matter through informal conciliation. 2 U.S.C. § 437g(a)(4). If the 

respondent does not voluntarily enter into a conciliation agreement, the Commission’s only 

recourse is to institute a de novo civil suit in federal court. 2 U.S.C. § 437g(a)(6)(A). Only a 

court, acting in such a lawsuit, can adjudicate that a violation has occurred and impose a remedy. 

2 U.S.C. § 437g(a)(6)(B). 

 More fundamentally, the Commission’s process leading up to and including its decision 

to initiate suit is not subject to judicial review. This case is about defendants’ alleged violations 

of the Act, not the Commission’s underlying decision to bring these allegations to this Court for 

judicial resolution. The Commission’s decision to enforce the Act against Novacek is simply not 

reviewable: It is not final agency action that determines rights and obligations, and the Act does 

not provide courts with the authority to review the Commission’s decision to exercise its 

prosecutorial discretion and initiate de novo litigation. Only “final agency action” that 

determines rights or obligations is subject to judicial review. 5 U.S.C. § 704. “[T]o be final, 

agency action must mark the consummation of the agency’s decisionmaking process, and must 

either determine rights or obligations or occasion legal consequences.” Alaska Dep’t of Envtl. 

Conservation v. EPA, 540 U.S. 461, 483 (2004) (citing Bennett v. Spear, 520 U.S. 154, 177-178 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 11 of 18
6

(1997)) (internal quotation marks omitted). “An agency’s decision . . . to bring suit,” however, 

“‘determine[s] the legal rights and liabilities of no one.’” Atlantic Richfield Co. v. Dep’t of 

Energy, 769 F.2d 771, 787 (D.C. Cir. 1984) (citation omitted)). Accord NAACP v. Meese, 615 

F. Supp. 200, 203 (D.D.C. 1985) (“Only the courts . . . have the power to take any of these steps, 

and it is these courts, not the [agency], which take final action.”). Therefore, the Commission’s 

decision to file suit under 2 U.S.C. § 437g(a)(6), as well its prior determination under 2 U.S.C. 

§ 437g(a)(4)(A) that there was “probable cause” to believe that Novacek violated the Act, are not 

final agency actions. Those decisions neither adjudicate defendants’ liability nor receive 

deference in this de novo action. The “district court stands ready to dismiss the suit if it has no 

factual basis.” McLaughlin v. Lodge 647, 876 F.2d 648, 653 (8th Cir. 1989). 

The courts’ inability to review decisions that are not final agency actions is grounded in 

the separation of powers. As the Supreme Court has observed: 

Just as a judge cannot be subjected to such a scrutiny, so the integrity of the 

administrative process must be equally respected. It will bear repeating that although 

the administrative process has had a different development and pursues somewhat 

different ways from those of courts, they are to be deemed collaborative 

instrumentalities of justice and the appropriate independence of each should be 

respected by the other. 

United States v. Morgan, 313 U.S. 409, 422 (1941) (quotation marks and citations omitted). 

“[T]he exercise of prosecutorial discretion, at the very core of the executive function, has long 

been held presumptively unreviewable.” In re Sealed Case, 131 F.3d 208, 214 (D.C. Cir. 1997). 

“[G]iven the limited resources and policy objectives of the federal government, not every 

violation of federal law is prosecuted in federal court,” id., and law enforcement agencies like the 

Commission have prosecutorial discretion to decide which violations to pursue. See Heckler v. 

Chaney, 470 U.S. 821 (1985). 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 12 of 18
7

 The Act, in fact, grants federal courts the ability to review certain Commission decisions, 

but the decision to sue is not one of them. If the Commission dismisses or delays proceedings 

regarding an administrative complaint, an “aggrieved” administrative complainant may file a 

petition with the United States District Court for the District of Columbia. 2 U.S.C. 

§ 437g(a)(8)(A). See Stockman v. FEC, 138 F.3d 144, 151-156 (5th Cir. 1998). However, there 

is no similar provision granting any court the ability to review the Commission’s decision to 

initiate suit to enforce the Act. Indeed, the D.C. Circuit court has expressly concluded that it has 

“no statutory authority to review the FEC’s decision to sue.” FEC v. Legi-Tech, Inc., 75 F.3d 

704, 709 (D.C. Cir. 1996). This litigation provides Novacek an opportunity to attempt to refute 

the showing made by the Commission that she violated the Act, but Novacek’s complaints about 

the Commission’s investigation fail to state a claim. 

Moreover, to the extent that Novacek might have objected to the investigation while it 

was ongoing, any such claims would now be moot because the investigation has ended. For 

example, if Novacek is complaining about the administrative subpoenas the Commission issued 

during its investigation, she could have filed a motion to quash a subpoena before the 

Commission, as permitted by 11 C.F.R. § 111.15(a), but she did not. Moreover, Commission 

subpoenas — whether for interrogatories, documents, or depositions — are not self-enforcing. 

See 2 U.S.C. §§ 437d(b), 437c(b)(1). Thus, if Novacek believed that any subpoena to her was 

improper or infringed her constitutional rights, her proper recourse would have been to seek 

judicial relief at the time the Commission sought to enforce the subpoena. See, e.g., FEC v. 

Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) (denying enforcement 

of FEC subpoena). 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 13 of 18
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C. Novacek’s Request for Damages is Barred Because the United States Has Not 

Waived Sovereign Immunity 

Novacek’s request for damages is also foreclosed because the United States has not 

waived sovereign immunity. Federal courts do not have jurisdiction over a claim against an 

agency of the federal government unless Congress enacts a statute that expressly and 

unequivocally waives the United States’ immunity to suit. See United States v. Mitchell, 463 

U.S. 206, 212 (1983); Freeman v. United States, 556 F.3d 326, 334-35 (5th Cir. 2009). 

“Waivers of the Government’s sovereign immunity, to be effective, must be ‘unequivocally 

expressed,’” and any such waiver must be construed strictly in favor of the sovereign. United 

States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992) (citation omitted). A waiver must be 

expressed unequivocally in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 

187, 192 (1996) (citations omitted). Novacek seeks to obtain $5 million from an agency of the 

United States based on allegations of misconduct by the Commission, but she fails to identify 

any statutory waiver of sovereign immunity that would permit such a claim. The Court is 

therefore without jurisdiction to hear defendants’ counterclaim for damages and it should be 

dismissed. 

D. Novacek Has No Cause of Action for any Alleged Constitutional Violations 

To the extent that Novacek may seek to rely on Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971), to provide an implied cause of action for monetary damages on her 

constitutional claims, it is well settled that such actions under Bivens cannot be brought against a 

federal agency such as the Commission. Drake v. FAA, 291 F.3d 59, 72 (D.C. Cir. 2002) (citing 

FDIC v. Meyer, 510 U.S. 471 (1994)). “[N]o cause of action for damages for constitutional 

violations — whether called a Bivens action or not — is to be implied against government 

agencies.” Taylor v. FDIC, 132 F.3d 753, 768 (D.C. Cir. 1997) (citing FDIC v. Meyer). Thus, it 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 14 of 18
9

is apparent that Novacek has no cause of action against the Commission based on any alleged 

constitutional violation under the Bivens doctrine. Likewise, the APA does not provide for 

monetary relief. 5 U.S.C. § 702 (“[a]n action in a court of the United States seeking relief other 

than money damages....”). 

E. If Novacek’s Counterclaims Are Construed as Alleging Selective Prosecution, 

They Must Fail 

Selective prosecution is a limited doctrine that cannot properly be invoked in a 

counterclaim. Defendants’ counterclaims are an improper effort to turn this enforcement case, 

where the facts and issues to be litigated involve the defendant’s own conduct, into a case about 

why the agency decided to pursue the case against particular defendants. Even if Novacek is 

attempting to make a selective prosecution argument, that theory provides only a very limited 

defense; it does not form the basis for an affirmative counterclaim. 

 “Selectivity is not the same as applying the law to one person alone. A government 

legitimately could enforce its law against a few persons (even just one) to establish a precedent, 

ultimately leading to widespread compliance. The prosecutor may conserve resources for more 

important cases.” Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir. 1989). Only when a 

proponent of a selective prosecution defense satisfies the “demanding” burden of proving that a 

prosecution unjustifiably “had a discriminatory effect and that it was motivated by a 

discriminatory purpose” will a court question the exercise of the government’s broad discretion 

and power to prosecute. United States v. Armstrong, 517 U.S. 456, 463-65 (1996). 

 “[A] defendant must present specific facts, not mere allegations, which establish a 

colorable basis for the existence of both discriminatory application of a law and discriminatory 

intent on the part of government actors. This is a high threshold. As has been true historically, it 

will be the rare defendant who presents a sufficiently strong case of selective prosecution to 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 15 of 18
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merit discovery of government documents.” United States v. Bourgeois, 964 F.2d 935, 939 (9th 

Cir. 1992). The judiciary is “ill equipped to assess a prosecutor’s charging decisions,” noting 

that the factors to be considered, such as “the strength of the case, the prosecution’s general 

deterrence value, the Government’s enforcement priorities, and the case’s relationship to the 

Government’s overall enforcement plan are not readily susceptible to the kind of analysis the 

courts are competent to undertake.” Id. at 939 (quoting Wayte v. United States, 470 U.S. 598, 

607 (1985)). The Court also expressed the concern that judicial oversight of prosecutorial 

decision-making could undermine law enforcement. Id. at 939-940 (citing Wayte, 470 U.S. at 

607-08 (noting that examination of the decision to prosecute delays the court proceedings, could 

chill law enforcement, and may undermine prosecutorial effectiveness)). 

 To the extent that Novacek contends she has been selectively prosecuted, that contention 

is not a valid counterclaim and, in any event, is not supported by specific facts. 

F. Counterclaims Have Not Been Properly Brought By the RVC and BPO 

 Novacek may represent herself pro se, but she may not represent the RVC or either of the 

BPO entities because she is not an attorney. “[T]he ‘clear’ rule is ‘that a corporation as a 

fictional legal person can only be represented by licensed counsel.’” Donovan v. Road Rangers 

Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (quoting, K.M.A., Inc. v. General 

Motors Acceptance Corp., 652 F.2d 398, 399 (5th Cir.1982); accord Southwest Express Co., Inc. 

v. Interstate Commerce Comm’n, 670 F.2d 53, 56 (5th Cir. 1982). Accordingly, the 

counterclaims as brought by RVC, BPO, Inc. and BPO Advantage LP should be dismissed. 

 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 16 of 18
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II. CONCLUSION 

 Defendants’ contention that the Commission ignored evidence, proceeded with malice, 

and was negligent in its investigation fail to state a claim and defendants’ counter complaint 

should be dismissed in its entirety. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 17 of 18
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 Certificate of Service 

CERTIFICATE OF SERVICE 

I hereby certify that, on November 30, 2009, I caused Defendant Federal Election 

Commission’s motion to dismiss defendants’ counterclaims, memorandum of law in support, and 

proposed order to be served by email (pursuant to the stipulation of the parties under Fed. R. Civ. P. 

5(b)((2)(E)) upon: 

 Jody L. Novacek 

 jodylnovacek@hotmail.com 

 

s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

November 30, 2009 (202) 694-1650 

1 

Case 3:09-cv-00444-M Document 19 Filed 11/30/2009 Page 18 of 18
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

 v. 

JODY L. NOVACEK, et al., 

 Defendants. 

 

 Civ. No. 09-CV-00444 

 ORDER 

ORDER 

 This matter having come before the Court upon the Plaintiff Federal Election Commission’s 

Motion to Dismiss Defendants’ Counterclaims, and the Court having read and considered the motion, 

memoranda of law, and other materials submitted in support thereof and in opposition thereto, it is 

hereby ORDERED that Plaintiff’s Motion is GRANTED and Defendants’ counterclaims are hereby 

DISMISSED WITH PREJUDICE. 

It is SO ORDERED this ____ day of __________, 2009. 

 __________________________________ 

 Honorable Barbara M.G. Lynn 

 United States District Judge 

Case 3:09-cv-00444-M Document 19-2 Filed 11/30/2009 Page 1 of 1