UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-259 (BAH) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS ) REPLY 

 POLICY STRATEGIES, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS 

Daniel A. Petalas (D.C. Bar No. 467908) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

dpetalas@fec.gov hsummers@fec.gov 

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

Deputy General Counsel – Law Attorney 

lstevenson@fec.gov snesin@fec.gov 

Kevin Deeley FOR THE DEFENDANT 

Acting Associate General Counsel FEDERAL ELECTION COMMISSION 

kdeeley@fec.gov 999 E Street NW 

Washington, DC 20463 

June 30, 2016 (202) 694-1650 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 1 of 13
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TABLE OF CONTENTS 

 

 Page 

I. FACIAL CHALLENGES TO FEC REGULATIONS GENERALLY MUST 

BE BROUGHT WITHIN SIX YEARS AFTER PROMULGATION ..........................1 

II. PLAINTIFFS LACK STANDING TO CHALLENGE 

11 C.F.R. § 109.10(e)(1)(vi) PURSUANT TO THE LIMITED EXCEPTION 

TO THE STATUTE OF LIMITATIONS FOR PARTIES DIRECTLY 

HARMED BY APPLICATION OF AGENCY REGULATIONS ................................2 

III. ADOPTING PLAINTIFFS’ ARGUMENT WOULD ALLOW PARTIES TO 

EASILY CIRCUMVENT THE GENERAL RULE PROTECTING THE 

GOVERNMENT’S SOVEREIGN IMMUNITY ..........................................................8 

IV. CONCLUSION ..............................................................................................................9 

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TABLE OF AUTHORITIES 

Cases 

Alvin Lou Media, Inc. v. FCC, 571 F.3d 1 (D.C. Cir. 2009) .....................................................6

Am. Trading Transp. Co. v. United States, 791 F.2d 942 (D.C. Cir. 1986) ...............................7 

AT&T v. FCC, 978 F.2d 727 (D.C. Cir. 1992) ..........................................................................6 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................3

Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442 (D.C. Cir. 1994) ........................1

FEC v. Akins, 524 U.S. 11 (1998) ..............................................................................................3

Functional Music, Inc. v. FCC, 274 F.2d 543 (D.C. Cir. 1958) ...............................................3

Hopkins v. Women’s Div. Gen. Bd. of Global Ministries, 

238 F. Supp. 2d 174 (D.D.C. 2002) ...............................................................................2

Midtec Paper Corp. v. United States, 857 F.2d 1487 (D.C. Cir. 1988) .....................................6

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209 (D.C. Cir. 2013) .........................................1 

Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 70 F.3d 1345 (D.C. Cir. 1995) .....................3 

Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 

666 F.2d 595 (D.C. Cir. 1981) .......................................................................................8

NLRB Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987) ......................................................2, 3, 8

P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008) ....................1, 2

P & V Enters. v. U.S. Army Corps of Eng’rs, 

466 F. Supp. 2d 134 (D.D.C. 2006) .......................................................................2, 3, 5

RCA Global Commc’ns, Inc. v. FCC, 758 F.2d 722 (D.C. Cir. 1985) ...................................2, 3

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987) ........................................1, 9

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) .....................4, 5 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 3 of 13
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Statutes and Regulations 

5 U.S.C. § 706 ............................................................................................................................9 

28 U.S.C. § 2401(a) ..............................................................................................................1, 9 

52 U.S.C. § 30109(a)(1) .............................................................................................................4 

52 U.S.C. § 30109(a)(8)(A) ...............................................................................................3, 6, 9 

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................3 

52 U.S.C. § 30109(a)(12) ...........................................................................................................4 

11 C.F.R. § 109.10(e)(1)(vi) ..........................................................................................1, 2, 4, 9 

Miscellaneous

33 Charles Alan Wright & Charles H. Koch, Jr., 

Federal Practice and Procedure: Judicial Review § 8355 (2016 Supplement) ..............7 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 4 of 13
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The Federal Election Commission (“Commission” or “FEC”) has moved to dismiss the 

direct challenge to 11 C.F.R. § 109.10(e)(1)(vi) made by plaintiffs Citizens for Responsibility 

and Ethics in Washington (“CREW”) and Nicholas Mezlak because the statute of limitations 

deprives this court of jurisdiction to hear that claim. Plaintiffs concede that the statute of 

limitations applicable to the Commission’s original promulgation of that regulation expired long 

ago. Plaintiffs argue that this Court can still hear the claim, however, due to a limited exception 

for parties that are affected when an agency applies a regulation in a way that directly harms 

them. But plaintiffs’ challenge to an FEC decision that its regulation does not reach the alleged 

conduct of a third party does not meet the standards required for that narrow exception to the 

government’s sovereign immunity, and so that claim remains time barred. Plaintiffs are free to 

challenge the regulation by petitioning the Commission to change it and, if the agency declines, 

challenging that denial. The Court should therefore dismiss Claim Two of plaintiffs’ complaint. 

I. FACIAL CHALLENGES TO FEC REGULATIONS GENERALLY MUST BE 

BROUGHT WITHIN SIX YEARS AFTER PROMULGATION 

As explained in the Commission’s opening memorandum, a challenge to one of the 

FEC’s regulations ordinarily is foreclosed for lack of subject matter jurisdiction unless it is filed 

within six years after the regulation was promulgated. (FEC’s Mem. of P&A in Supp. of Its 

Partial Mot. to Dismiss (“FEC Mem.”) (Docket No. 12) at 6-7 (citing 28 U.S.C. § 2401(a); P & 

V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1023 (D.C. Cir. 2008); Daingerfield 

Island Protective Soc’y v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994); Muwekma Ohlone Tribe v. 

Salazar, 708 F.3d 209, 218 (D.C. Cir. 2013); Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 

(D.C. Cir. 1987)). The regulation plaintiffs challenge, 11 C.F.R. § 109.10(e)(1)(vi), was 

promulgated 36 years ago. 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 5 of 13
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The Commission’s earlier brief also discussed the exception to that general rule under 

which parties can bring otherwise time-barred challenges to regulations by first “petition[ing] the 

agency for amendment or rescission of the regulations and then . . . appeal[ling] the agency’s 

decision.” (FEC Mem. at 7 (quoting NLRB Union v. FLRA, 834 F.2d 191, 196 (D.C. Cir. 

1987)).) Plaintiffs did not address this exception in their response, and therefore they have 

waived any argument that they can rely on a rulemaking petition filed by others or that bringing 

such a petition now would be futile. See, e.g., Hopkins v. Women’s Div. Gen. Bd. of Global 

Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this Circuit that 

when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments 

raised by the defendant, a court may treat those arguments that the plaintiff failed to address as 

conceded.”) (citations omitted); see also FEC Mem. 9-12 (discussing why neither an earlier 

rulemaking petition nor a claim of futility make plaintiffs’ second claim timely). 

II. PLAINTIFFS LACK STANDING TO CHALLENGE 11 C.F.R. § 109.10(e)(1)(vi) 

PURSUANT TO THE LIMITED EXCEPTION TO THE STATUTE OF 

LIMITATIONS FOR PARTIES DIRECTLY HARMED BY APPLICATION OF 

AGENCY REGULATIONS 

 Plaintiffs’ defense to this motion hinges solely upon the limited exception to the statute 

of limitations for situations in which an “aggrieved” and “personally injured” party with standing 

“may challenge regulations directly on the ground that the issuing agency acted in excess of its 

statutory authority in promulgating them” in a proceeding involving the agency’s application of 

the regulation. NLRB Union, 834 F.2d at 195; RCA Global Commc’ns, Inc. v. FCC, 758 F.2d 

722, 730 (D.C. Cir. 1985); P & V Enters. v. U.S. Army Corps of Eng’rs, 466 F. Supp. 2d 134, 

143 (D.D.C. 2006), aff’d, 516 F.3d 1021 (D.C. Cir. 2008). But this exception to the general rule 

is unavailable to plaintiffs here. 

A party must meet several threshold requirements to bring a direct challenge to a 

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regulation that would otherwise be barred by the statute of limitations without first petitioning 

the agency to change the regulation. The party bringing such a challenge must of course 

“possess[ ] standing.” NLRB Union, 834 F.2d at 195. The challenge must be “properly brought 

before this court for review of further [agency] action applying it.” Id. at 196 (quoting 

Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958)). The party bringing the 

action must be “aggrieved” by application of the regulation. RCA Global Commcn’s, 758 F.2d 

at 730 (finding parties “aggrieved” by application of regulation may challenge validity of 

regulation outside of “statutory time limits”). And any facial challenge must be accompanied by 

an as-applied challenge by someone that is “personally injured by [the] agency[’s] action.” P & 

V Enters., 466 F. Supp. 2d at 143 (quoting Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 70 

F.3d 1345, 1349 (D.C. Cir. 1995)). 

Plaintiffs do not meet these requirements. The judicial review provision at 52 U.S.C. 

§ 30109(a)(8)(A) is the sole authority that gives plaintiffs statutory standing to sue the FEC for 

the dismissal of its administrative complaint. And as the Commission explained, the power of a 

court reviewing the dismissal of an administrative complaint pursuant to 52 U.S.C. 

§ 30109(a)(8)(A) “is limited.” (FEC Mem. at 10-11 (quoting Common Cause v. FEC, 842 F.2d 

436, 448 (D.C. Cir. 1988).) The reviewing court can only declare that the dismissal was 

“contrary to law” and order the Commission to “conform with” the court’s declaration. 52 

U.S.C. § 30109(a)(8)(C). As noted in the FEC’s prior brief, even if the Court holds that the 

Commission has erred, it cannot mandate a particular outcome on remand; the Commission may 

reach the same outcome based on a different rationale. (FEC Mem. at 10-11 (citing FEC v. 

Akins, 524 U.S. 11, 25 (1998).) 

 Plaintiffs’ role in the administrative proceeding at issue here and that proceeding’s 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 7 of 13
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ultimate effect on them are too attenuated to support a direct challenge to the regulation at issue. 

Plaintiffs filed the administrative complaint that initiated the administrative enforcement 

proceedings against Crossroads Grassroots Policy Strategies (“Crossroads GPS”), but they were 

not a party to that proceeding. “Any person” that believes a violation of FECA has taken place 

may file a complaint with the Commission that identifies an alleged violation. 52 U.S.C. 

§ 30109(a)(1). The filing of an administrative complaint is generally the end of the participation 

in the enforcement matter by the administrative complainant. Anything the Commission does 

after that — whether that be finding reason to believe a violation has occurred, conducting an 

investigation, or dismissing a matter entirely — occurs without any further input from the 

administrative complainant. In no sense can an administrative complainant be considered a party 

to the proceedings before the Commission. Nor does the FEC have the authority to award 

damages or any other direct remedy to an administrative complainant. The administrative 

complainant is not even aware of what is happening in the proceedings until they have reached a 

conclusion, because the enforcement process is confidential. Id. at § 30109(a)(12). For all of 

these reasons, the position of FEC administrative complainants like the plaintiffs differs 

materially from the parties in the cases plaintiffs cite that were permitted to pursue a direct 

challenge to a regulation that would otherwise have been time-barred. 

 Furthermore, plaintiffs cannot maintain a facial challenge here, but their complaint 

purports to do just that. It asks the Court to “[d]eclare that 11 C.F.R. § 109.10(e)(1)(vi) is 

contrary to law, arbitrary and capricious, and invalid.” (Compl. Requested Relief ¶ 3 (Docket 

No. 1).) It also states that “Plaintiffs are therefore entitled to relief in the form of a declaratory 

order that . . . 11 C.F.R. § 109.10(e)(1)(vi) is unlawful and invalid.” (Compl. ¶ 124.) Plaintiffs 

rely on Weaver v. Federal Motor Carrier Safety Administration, 744 F.3d 142 (D.C. Cir. 2014), 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 8 of 13
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which involved a challenge to an agency’s application of a regulation in a way that resulted in 

alleged harm to the plaintiff truck driver’s safety record. Id. at 145. That decision involved 

direct application of a regulation to the plaintiff, and the court made clear that such an as-applied 

challenge is required in order to support a challenge to a regulation after the statute of limitations 

has elapsed. Id. (“[F]acial challenges to the rule or the procedures by which it was promulgated 

are barred. . . . [W]hen an agency seeks to apply the rule, those affected may challenge that 

application.” (emphasis added)). Plaintiffs also cite P & V Enterprises, a case in which a 

developer brought a facial challenge to a regulation that would have required the developer to 

obtain a permit to develop certain lands. (Pls.’ Mem. in Opp’n to Defs. FEC’s and Crossroads 

GPS’s Mot. to Dismiss (“Pls.’ Mem.”) at 7 (Docket No. 18).) But the P & V court rejected that 

facial claim because the plaintiff had never sought a permit and thus had not made the as-applied 

claim that would be required to sustain such a challenge. P & V Enters., 466 F. Supp. 2d at 143, 

(“[A] litigant with standing to bring an as-applied challenge to the regulations . . . may at the 

same time ‘challenge [the] regulations directly on the ground that the issuing agency acted in 

excess of its statutory authority in promulgating them.’”). Thus, only a party that brings an asapplied challenge to a regulation is permitted to bring an associated facial challenge when the 

statute of limitations has expired. Id. 

Plaintiffs in this case, however, have not brought an “as-applied” challenge to the 

regulation. They are asking the Court to declare that the regulation violates FECA by failing to 

regulate enough activity generally. Plaintiffs now claim that they also bring an “as applied” 

challenge because the matter involves the potential application of the regulation to Crossroads 

GPS. (Pls.’ Mem. at 8-9.) But plaintiffs cite no case in which a challenge to an agency decision 

not to pursue enforcement of a regulation against a third party has been deemed an “as applied” 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 9 of 13
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challenge by a plaintiff. Plaintiffs lack standing to bring an as-applied challenge to the 

regulation because the Commission has not applied the regulation to them. The nature of 52 

U.S.C. § 30109(a)(8)(A) means that plaintiffs’ standing here is limited to asking this Court to 

find that the FEC acted unlawfully by dismissing their administrative complaint. 

 Moreover, plaintiffs have not been “personally injured” in the same manner as the 

competitor claimants in other cases they cite. Plaintiffs rely heavily on AT&T v. FCC, 978 F.2d 

727, 729-31 (D.C. Cir. 1992), a case that they describe as “very similar to the one here.” (Pls.’ 

Mem at 8.) But it is easily distinguishable. In that case, AT&T had filed a complaint with the 

FCC against its competitor MCI for allegedly violating the law by “charging certain customers 

special negotiated rates that it had not filed with the FCC.” AT&T, 978 F.2d at 730. The 

complaint process before the FCC is very different from the enforcement process with the FEC 

— the FCC statute “expressly sets up the [FCC] as an adjudicator of private rights” and gives 

“AT&T the right to press a claim for damages suffered due to violation of the Act.” Id. at 732 

(footnote omitted). “AT&T sought both damages and a cease and desist order” based on the 

argument that “MCI’s actions injured AT&T by putting AT&T at a competitive disadvantage.” 

Id. at 730. AT&T was the equivalent of a civil litigant against MCI, and the FCC’s failure to act 

on AT&T’s administrative complaint due to an unlawful rule directly injured AT&T. See also 

Alvin Lou Media, Inc. v. FCC, 571 F.3d 1, 7-8 (D.C. Cir. 2009) (case cited by plaintiffs in which 

party was directly injured by allegedly unlawful auction procedures in which it would have been 

a participant); Midtec Paper Corp. v. United States, 857 F.2d 1487, 1496 (D.C. Cir. 1988) (case 

cited by plaintiffs in which a shipper claimed to have been directly injured by allegedly unlawful 

rules that governed its “competitive access” in the railroad industry.) 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 10 of 13
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 Plaintiffs’ situation here differs greatly. Plaintiffs may be able to show informational 

injury, but they are not competitors of those whose conduct is at issue, and they were not directly 

injured by the Commission’s decision not to apply the regulation to Crossroads GPS; the FEC is 

not an adjudicator of tangible private commercial rights, unlike the agencies in the cases on 

which plaintiffs rely; plaintiffs did not directly participate in the FEC’s enforcement proceedings 

against Crossroads GPS; and plaintiffs lack standing to bring an independent “as-applied” 

challenge. 

Indeed, this narrow exception to the normal operation of the statute of limitations was not 

developed to assist parties in situations like that of the plaintiffs. The exception is intended to 

address the potential unfairness of applying such a limit to a party that would have had no reason 

to know it had an interest in challenging a regulation at the time it was promulgated. See Am. 

Trading Transp. Co. v. United States, 791 F.2d 942, 950 n.11 (D.C. Cir. 1986) (“No time limit 

bars appellants from challenging a regulation that, they allege, is currently being used in a 

particular proceeding to harm them in a way they could not have anticipated at the time the rule 

was adopted.”); see also 33 Charles Alan Wright & Charles H. Koch, Jr., Federal Practice and 

Procedure: Judicial Review § 8355 (2016 Supplement) (“blocking challenges during 

enforcement proceedings could be grossly unfair to persons who lack notice of a rule’s issuance 

or likely impact”). CREW is an advocacy organization with a longstanding focus on political 

and election activity. (Compl. ¶¶ 7-15.) It now brings a generalized complaint, in its Claim 

Two, that the FEC’s regulation does not cover enough activity. But CREW has had the 

opportunity for many years to petition the FEC to amend or rescind that regulation. The same 

informational injury it asserts in this case could be asserted every time the FEC relies upon the 

regulation in declining to pursue enforcement action against any party, not just Crossroads GPS. 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 11 of 13
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Plaintiffs cannot argue that they lacked the opportunity to challenge the regulation using normal 

procedures before now. See Nat. Res. Def. Council v. Nuclear Regulatory Comm'n, 666 F.2d 

595, 602 (D.C. Cir. 1981). 

Accordingly, plaintiffs’ direct challenge to the FEC’s regulation should be dismissed. 

III. ADOPTING PLAINTIFFS’ ARGUMENT WOULD ALLOW PARTIES TO 

EASILY CIRCUMVENT THE GENERAL RULE PROTECTING THE 

GOVERNMENT’S SOVEREIGN IMMUNITY 

Plaintiffs argue that preventing them from bringing a direct challenge to the FEC 

regulation as part of this case would be an “absurdity” and cause “manifest injustice” because it 

would “‘effectively deny many parties ultimately affected by a rule an opportunity to question its 

validity.’” (Pls.’ Mem. at 10 (quoting NLRB Union, 834 F.2d at 196).) That is incorrect. As 

explained in the Commission’s prior memorandum (FEC Mem. at 7-10) and earlier in this reply, 

supra pp. 1-2, parties including plaintiffs have a clear path to challenging a regulation that they 

believe conflicts with the agency’s statutory authority. That path is to petition the agency to 

amend or rescind the regulation, and if that effort is unsuccessful, to sue the agency for failing to 

do so. See, e.g., NLRB Union, 834 F.2d at 196. This procedure affords the agency the 

opportunity to reconsider the lawfulness of its regulation, utilizing notice and comment 

procedures and public hearings if deemed necessary, without judicial intervention. The fact that 

plaintiffs have chosen not to take these well-recognized procedural steps does not make 

following the law an “absurdity.” (Pls.’ Mem. at 10.) 

On the other hand, adopting the position plaintiffs advocate here would permit 

administrative complainants to easily circumvent the statute of limitations without affording the 

Case 1:16-cv-00259-BAH Document 20 Filed 06/30/16 Page 12 of 13
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Commission the opportunity to engage in a review of the lawfulness of its own regulation.1 The 

six-year statute of limitation in 28 U.S.C. § 2401(a) for challenging agency regulations is a 

“jurisdictional condition attached to the government’s waiver of sovereign immunity, and as 

such must be strictly construed.” Spannaus, 824 F.2d at 55. This carefully struck legislative 

balance would be upended if a party could simply evade it by filing an administrative complaint 

accusing a third party of violating the law despite acting consistently with an agency regulation, 

and then bringing a facial challenge to the regulation if the Commission dismisses that 

administrative complaint. Congress never intended parties to be able to circumvent the statute of 

limitations so easily, and this Court should not permit plaintiffs to do so here. 

IV. CONCLUSION 

For all the foregoing reasons and those stated in the FEC’s prior memorandum, the Court 

should dismiss Claim Two of plaintiffs’ complaint, which challenges the lawfulness of 11 C.F.R. 

§ 109.10(e)(1)(vi) pursuant to the Administrative Procedure Act, 5 U.S.C. § 706. 

Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

dpetalas@fec.gov hsummers@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) s/ Seth Nesin 

Deputy General Counsel – Law Seth Nesin 

lstevenson@fec.gov Attorney 

snesin@fec.gov 

Kevin Deeley 

Acting Associate General Counsel FOR THE DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

June 30, 2016 Washington, DC 20463 

 (202) 694-1650 

 

1

 52 U.S.C. § 30109(a)(8)(A) permits administrative complainants to sue the Commission 

if it fails to act on an administrative complaint within 120 days. 

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