UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON and )

MELANIE SLOAN, )

)

Plaintiffs, ) No. 1:10-cv-01350-RMC

)

v. ) FEC REPLY

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION TO DISMISS AMENDED COMPLAINT

Phillip Christopher Hughey

Acting General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

Robert W. Bonham III (D.C. Bar No. 397859)

Senior Attorney

Vivien Clair

Attorney

 

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

January 18, 2011 (202) 694-1650

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 1 of 23
TABLE OF CONTENTS 

 Page 

I. INTRODUCTION 1 

II. PLAINTIFFS LACK CONSTITUTIONAL STANDING TO SEEK REVIEW OF 

THE DISMISSAL OF THEIR ADMINISTRATIVE COMPLAINT 2 

A. FECA Requires the Commission to Keep Certain Matters Confidential 2 

B. Melanie Sloan Lacks Standing Based on an Alleged Informational Interest 3 

C. CREW Lacks Standing Based on an Alleged Informational Interest 7 

III. PLAINTIFFS CANNOT SHOW THAT THE COMMISSION’S 

DISMISSAL OF THEIR ADMINISTRATIVE COMPLAINT WAS 

AN ABUSE OF DISCRETION 8 

IV. THIS COURT LACKS JURISDICTION OVER PLAINTIFFS’ “POLICY 

AND PRACTICE” CLAIM, WHICH ALSO FAILS TO STATE A CLAIM 

UPON WHICH RELIEF CAN BE GRANTED 13 

A. Plaintiffs Lack Both Statutory and Constitutional Standing 14 

B. Even If It Is Reviewable, Plaintiffs’ Policy and Practice Claim Should 

Be Dismissed for Failure to State a Claim Upon Which Relief 

Can Be Granted 19 

V. CONCLUSION 21 

i 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 2 of 23
I. INTRODUCTION

The Federal Election Commission (“Commission” or “FEC”) has moved to dismiss the 

amended complaint of Citizens for Responsibility and Ethics in Washington (“CREW”) and 

Melanie Sloan because they lack standing and have failed to state a claim. See Fed. R. Civ. P. 

12(b)(1), 12(b)(6). In response to the Commission‟s showing that they have not suffered an 

informational injury under Article III, plaintiffs conclusorily assert that they seek additional 

factual information when in truth they seek a legal ruling that certain disbursements — about 

which they are fully aware — constitute prohibited in-kind contributions. In essence, plaintiffs 

seek a recharacterization of already-reported spending that would not provide them with any 

further factual information. Even if plaintiffs had standing to complain about the Commission‟s 

dismissal of their administrative complaint, their substantive disagreement with the 

Commission‟s view of the underlying facts and its exercise of prosecutorial discretion falls far 

short of meeting plaintiffs‟ heavy burden of demonstrating that the Commission abused its 

discretion when it weighed the evidence and declined to pursue what was at worst a de minimis

violation of the Federal Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA” or “Act”).

Plaintiffs also fail to show that they have suffered an injury in fact from the 

D.C. Circuit‟s interpretation of 2 U.S.C. § 437g(a)(8), which gives an aggrieved party 60 days 

from the date the Commission dismisses an administrative complaint to file a petition 

challenging the dismissal in this district court. Plaintiffs do not deny that were able to bring this 

action even though they did not receive immediate notice of the Commission‟s dismissal of their 

administrative complaint, and they do not allege any concrete injury from the timing of the 

Commission‟s issuance of its statements of reasons. In any event, neither FECA nor court 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 3 of 23
2

decisions construing it require the Commission to provide its notice or statement of reasons on 

the same day that it dismisses an administrative complaint.

II. PLAINTIFFS LACK CONSTITUTIONAL STANDING TO SEEK REVIEW OF 

THE DISMISSAL OF THEIR ADMINISTRATIVE COMPLAINT

In its memorandum supporting its motion to dismiss (“FEC Mem.”), the Commission 

showed that Melanie Sloan and CREW have not suffered the Article III injury in fact necessary 

for this Court to review the merits of the Commission‟s dismissal of their administrative 

complaint. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (standing 

requirements). Plaintiffs‟ opposition does not undermine that showing. Sloan has all the factual 

information to which FECA entitles her as a voter, and she and CREW cannot rely on their 

alleged roles as detectors and publicists of campaign finance violations to support their claims to 

constitutional standing. 

A. FECA Requires the Commission to Keep Certain Matters Confidential

In arguing that they have standing to seek judicial review under 2 U.S.C. § 437g(a)(8), 

plaintiffs imply that the Commission is hiding information that it must make public. For 

example, plaintiffs describe the Commission‟s votes in enforcement matters as “secret,” 

a product of “closed-door” proceedings, and insinuate that the voting procedure is therefore 

suspect. (E.g., CREW Opp. at 1, 13, 28, 29.) But the Commission does not vote in public on 

these matters because that is what the statute requires: Absent consent by the person notified or 

investigated, FECA requires confidentiality until, at the earliest, the enforcement matter is 

closed. 2 U.S.C. § 437g(a)(12)(A).1 See, e.g., Stockman v. FEC, 138 F.3d 144, 147 n.3 (5th Cir. 

 

1

Section 437g(a)(12)(A) provides: “Any notification or investigation . . . shall not be 

made public by the Commission or by any person without the written consent of the person 

receiving such notification or the person with respect to whom such investigation is made.”

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 4 of 23
3

1998) (refusing to quote the subject of investigation — the “administrative respondent” — in 

ongoing investigation where respondent refused to consent to making responses public). 

As the D.C. Circuit held in In re Sealed Case, 237 F.3d 657, 666-67 (D.C. Cir. 2001), 

“both 2 U.S.C. § 437g(a)(12)(A) and 11 C.F.R. § 111.21(a) plainly prohibit the FEC from 

disclosing information concerning ongoing investigations under any circumstances without the 

written consent of the subject of the investigation.” FECA‟s “confidentiality mandate” serves in 

part to protect innocent persons accused of wrongdoing from “damaging publicity.” AFL-CIO v. 

FEC, 333 F.3d 168, 174, 175 (D.C. Cir. 2003). Indeed, Commission members and employees 

(or any other persons) who violate the confidentiality provision can be fined $2,000 or, if the 

violation is knowing and willful, $5,000. 2 U.S.C. § 437g(a)(12)(B). See, e.g., Stockman, 

138 F.3d at 149 (stating that, contrary to respondent‟s claim, FEC did not violate Act‟s 

confidentiality provision). 

Plaintiffs also criticize the Commission for redacting portions of General Counsel‟s 

Report #2. (Opp. at 9.) The redacted passages discuss the conciliation process that FECA 

requires the Commission to treat as confidential, even after a matter has been dismissed. See

2 U.S.C. § 437g(a)(4)(B)(i). Thus, the statute does not entitle the public to see the redacted 

passages. 

B. Melanie Sloan Lacks Standing Based on an Alleged Informational Interest

Plaintiffs‟ opposition to the Commission‟s motion to dismiss asserts that the lack of 

revised financial reports by PTS PAC and the Hunter Committee has denied Sloan information 

useful in voting. (See, e.g., Opp. at 11, 18-21.) Sloan, however, has all the facts to which FECA 

entitles her. When Sloan and CREW filed their amended judicial complaint, the Commission 

had already released to the public documents in Matter Under Review (“MUR”) 5908. Those 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 5 of 23
4

documents reveal more facts about PTS PAC‟s financial support of Hunter‟s activities than the 

PAC and Hunter Committee would have been required to disclose in revised reports.2 Because 

the “„existence of federal jurisdiction ordinarily depends on the facts as they exist when the 

complaint is filed.‟” Lujan, 504 U.S. at 569 n.4 (quoting Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 830 (1989) (emphasis added by Lujan)), it is irrelevant what information 

Sloan had “[a]t the time she filed [the administrative] complaint with the FEC.” (Opp. at 19 

(emphasis added).)

In particular, General Counsel‟s Report #2 (Exh. 4 to Doc. 13-1) states that PTS PAC 

paid a total of approximately $10,200 for travel expenses incurred by then-Congressman Hunter 

for specific activities in specific states. (Id. at 5.) The GC Report provides details about 

Hunter‟s itinerary and the expenses paid by PTS PAC, including the names of particular cities 

and states visited, the dates of particular events, the nature of the events (e.g., “Pheasant Hunt,” 

“Reception,” “Tour,” “Radio appearance”), and specific topics Hunter addressed (e.g., China 

trade issues, right-to-life issues). (Id. at 5-7.) In contrast, if PTS PAC had simply reported those 

disbursements as in-kind contributions to Hunter, it would have been required to disclose only 

the name of the candidate (Hunter), the office the candidate was seeking (presidency), the 

election in question (primary), the amount or value of the in-kind contributions, and the 

contributions‟ general purpose (e.g., “travel”).3 As the recipient of the in-kind contributions, the 

 

2

The Commission earlier noted that, according to the D.C. Circuit, the agency “„has no 

authority to order anyone to report anything.‟” (FEC Mem. at 17 n.15, quoting CREW v. FEC 

(“CREW I”), 475 F.3d 337, 340 (D.C. Cir. 2007).) Sloan and CREW offer no contrary 

authority. (See Opp. at 22 n.33.)

3

See FEC Form 3X (“Report of Receipts and Disbursements for Other than an Authorized 

Committee”) and Instructions for Form 3X and Related Schedules at 12 (“Instructions for 

Schedule B, Itemized Disbursements”) (rev. 4/2006 ed.). These reporting forms and instructions 

and those cited in footnote 4 can be accessed at http://www.fec.gov/info/forms.shtml. See also

2 U.S.C. § 434(b); 11 C.F.R. 104.3(b)(3)(i)(A),(B). 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 6 of 23
5

Hunter Committee would have been required to report only the name and address of the 

contributor (PTS PAC), the value of the in-kind contributions, and the general nature of the 

contributions (e.g., “travel expenses”).4 

Thus, like the plaintiffs in Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 144-145

(D.D.C. 2005), who lacked standing, Sloan already possesses all the factual information that she 

seeks and to which FECA entitles her. Sloan contends that she lacks “specific information,” 

“„the in-kind contributions by PTS PAC to Hunter for President‟” (Opp. at 20, quoting Am. 

Compl. ¶ 51). But she already knows the fact that the PAC spent $10,200 on Hunter‟s travel. 

She only questions whether those payments constitute “in-kind contributions” — a label 

reflecting a legal, not a factual, conclusion. See Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. 

Cir. 2001) (“„[C]oordination‟ appears to us to be a legal conclusion that carries certain law 

enforcement consequences.”). As the Commission explained (Mem. at 13-18), Wertheimer

controls this case because Sloan‟s real dispute with the Commission concerns the legal 

consequences of the information she already has, and she has failed to show that “the legal ruling 

. . . [she] seek[s] might lead to additional factual information.” 268 F.3d at 1074. Plaintiffs

attempt (Opp. at 20-21) to distinguish Wertheimer and Common Cause v. FEC, 108 F.3d 413 

(D.C. Cir. 1997), but in those cases the plaintiffs, like Sloan here, claimed they were denied 

information to which they were entitled when political groups failed to comply with FECA 

reporting requirements. Common Cause, 108 F.3d at 416-17; Wertheimer, 268 F.3d at 1074-75. 

And, as in Wertheimer, the additional reporting Sloan seeks is simply to have a different legal 

 

4

See FEC Form 3X, Schedule A and accompanying instructions (“Instructions for 

Schedule A, Itemized Receipts”) at 10; see also FEC Form 3P (“Report of Receipts and 

Disbursements by an Authorized Committee of a Candidate for the Office of President or Vice 

President”) (rev. 01/2003 ed.) and accompanying instructions for Schedule A-P (“Itemized 

Receipts”) at 8. 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 7 of 23
6

description applied to disbursements about which she already knows. That exercise would not 

provide plaintiffs any new factual information.

Thus, contrary to Sloan‟s assertion (Opp. at 19), her position differs markedly from that 

of the plaintiffs in FEC v. Akins, 524 U.S. 11 (1998), who had Article III standing. As current 

and future voters, the Akins plaintiffs sought information that they could obtain only if, as the 

first step, the reviewing court reached the merits and declared the Commission‟s dismissal 

unlawful. See id. at 20. To explain its decision to dismiss the Akins plaintiffs‟ administrative 

complaint against the American Israel Public Affairs Committee (“AIPAC”), the Commission 

had not needed to include in its reports and statements the particular factual information that the 

plaintiffs most wanted and to which they and the rest of the public might be entitled — a list of 

AIPAC‟s financial supporters and a list of all the candidates that the organization assisted. Id. at 

21. As a result, “the plaintiffs in Akins had been completely denied access to any information 

about the AIPAC‟s receipt and disbursement of funds, and thus had no way to determine whether 

a particular candidate was even supported by the AIPAC.” Alliance for Democracy, 

362 F. Supp. 2d at 147. The Akins plaintiffs therefore had informational standing to bring their 

petition for a declaration that the FEC‟s dismissal of their complaint was unlawful. Akins, 

524 U.S. at 26. By contrast, Sloan lacks no comparable information.

Finally, even if plaintiffs were correct and the legal conclusion they seek were a fact, 

Sloan has not attempted to explain how PTS PAC‟s reporting of Hunter‟s travel expenses as 

in-kind contributions would be useful to Sloan as a voter. See CREW I, 475 F.3d at 340 (noting 

that, where a plaintiff‟s purported standing to challenge a Commission dismissal rested on 

learning the value of a mailing list, the “list‟s precise value — if that could be determined —

would add only a trifle to the store of information about the transaction already publicly 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 8 of 23
7

available”). Mr. Hunter is no longer a Member of Congress, and plaintiffs have not alleged that 

he is a candidate for any future federal office or that information about the PAC‟s alleged in-kind 

contributions to Hunter would be relevant to any other candidate‟s campaign. Thus, plaintiffs‟ 

conclusory allegation that the information they supposedly lack would be useful in voting is too 

speculative to provide standing under Article III.

When considering any chain of allegations for standing purposes, we may 

reject as overly speculative those links which are predictions of future events 

. . . and those which predict a future injury that will result from present or 

ongoing actions — those types of allegations that are not normally susceptible 

of labeling as “true” or “false.” Our authority to reject as speculative 

allegations of future injuries is well-established. 

United Transp. Union v. Interstate Commerce Comm’n, 891 F.2d 908, 912 (D.C. Cir. 1989) 

(footnote omitted) (citing Los Angeles v. Lyons, 461 U.S. 95 (1983); O’Shea v. Littleton, 414 U.S. 

488 (1974); Golden v. Zwickler, 394 U.S. 103 (1969)). 

C. CREW Lacks Standing Based on an Alleged Informational Interest

CREW does not contest the Commission‟s showing (Mem. at 14) that CREW cannot 

base its claim to standing on an alleged lack of information useful in voting. CREW I resolved 

that issue. See 475 F.3d at 339. CREW is not a citizen; it is an organization without members 

and, as a section 501(c)(3) corporation under the Internal Revenue Code, it cannot engage in 

partisan political activity. CREW describes itself as an organization devoted to “ensuring the 

integrity of those officials and protecting the right of citizens to be informed about the activities 

of government officials.” (Am. Compl. ¶ 5.) As the D.C. Circuit noted in CREW I, however, in 

holding that CREW did not have standing to pursue an earlier section 437g(a)(8) suit, “any 

citizen who wants to learn the details . . . can do so by visiting the Commission‟s website . . . .” 

CREW I, 475 F.3d at 339. Thus, CREW cannot base its standing on its purported interest in 

conveying information to the general public. 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 9 of 23
8

Plaintiffs‟ opposition also does not deny that, under Supreme Court and D.C. Circuit 

precedent, an interest in the “information” that an administrative respondent violated the Act 

cannot support constitutional standing to challenge the Commission‟s dismissal of an 

administrative complaint. See, e.g., Lujan, 504 U.S. at 573-74; Common Cause, 108 F.3d at 417. 

In sum, plaintiffs in effect concede that CREW lacks constitutional standing to seek 

judicial review of the dismissal of plaintiffs‟ administrative complaint.

III. PLAINTIFFS CANNOT SHOW THAT THE COMMISSION’S DISMISSAL OF 

THEIR ADMINISTRATIVE COMPLAINT WAS AN ABUSE OF DISCRETION

Even if plaintiffs could demonstrate standing, they cannot show that the Commission‟s 

dismissal of their administrative complaint in MUR 5908 was contrary to law under 2 U.S.C. 

§ 437g(a)(8)(A), as they allege in Claim One of their amended judicial complaint. As the 

Commission demonstrated (Mem. at 18-27), plaintiffs cannot meet the heavy burden necessary 

for them to prevail in their challenge to the agency‟s decision not to pursue allegations that about 

$10,200 in travel expenses paid by PTS PAC in late 2006 and early 2007 should be considered 

in-kind contributions to the Hunter for President Committee. The Commission explained (Mem. 

at 19-20) that judicial review of its decisions to dismiss administrative complaints under the 

applicable “arbitrary or capricious” standard is “highly deferential.” American Horse Prot. 

Ass’n, Inc. v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990); see Common Cause, 108 F.3d at 415. 

As the Commission also noted (Mem. at 26-27), the agency has prosecutorial discretion in 

deciding whether to dismiss administrative complaints, especially in light of its enforcement 

priorities and limited resources. See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); CREW I, 

475 F.3d at 340. Against this background, the Commission explained in detail (Mem. at 20-25, 

27) why its unanimous vote not to proceed in MUR 5908 was consistent with the law. As noted 

in the Commission‟s statement of reasons, the agency found the evidence insufficient to establish 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 10 of 23
9

“probable cause to believe” that the travel disbursements were in-kind contributions to former 

Congressman Hunter‟s campaign. Further, in view of the relatively minor nature of any potential 

violation, the Commission concluded that dismissal was appropriate as an exercise of the 

agency‟s prosecutorial discretion. (See FEC Mem. at 21-23; FEC Statement of Reasons, 

attached as Exh. 1 (Doc. 11-2) to FEC‟s Motion to Dismiss.)

Plaintiffs do not dispute that judicial review here is highly deferential or that the 

Commission possesses prosecutorial discretion, but they argue (Opp. at 22-28) that the 

Commission‟s analysis of the relevant evidence was flawed. In particular, plaintiffs assert (id.

at 23-24) that the record does not support the Commission‟s determination regarding whether the 

travel expenses were allocable between PTS PAC and the Hunter Committee. However, as we 

explained (Mem. at 24), the investigation revealed credible evidence that the travel supported 

PTS PAC‟s public policy mission, and no evidence contradicted that conclusion. Plaintiffs still 

cite no such evidence and make no effort to show specifically why the travel did not advance 

PTS PAC‟s mission, even if it may also have advanced Congressman Hunter‟s presidential 

campaign and thus have been subject to the allocation rules. Nor do plaintiffs explain why, if the 

expenses were allocable, an even division would be an unreasonable way for the Commission to 

quantify the extent to which the disbursements advanced the missions of these two political 

committees, both of which were formed to further the political interests of former Congressman 

Hunter. 

Plaintiffs rely heavily (see, e.g., Opp. at 23-25) on the General Counsel‟s statements to 

the Commission regarding the apparent purpose of the travel costs and whether they should be 

allocated. But the opinions of the Commission‟s staff are irrelevant here. Although the General 

Counsel makes independent recommendations to the Commission, it is the Commission, not the 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 11 of 23
10

agency‟s staff, that is empowered to make final decisions about the weight of the evidence and 

whether to pursue enforcement actions. “The Commissioners are appointed by the President to 

administer the agency, the agency‟s staff is not.” San Luis Obispo Mothers For Peace v. NRC, 

751 F.2d 1287, 1327 (D.C. Cir. 1984), affirmed en banc in relevant part, 789 F.2d 26, 33 (1986). 

Thus, “Chevron deference is owed to the decisionmaker authorized to speak on behalf of the 

agency, not to each individual agency employee.” Serono Laboratories, Inc. v. Shalala,

158 F.3d 1313, 1321 (1998). The D.C. Circuit has rejected as a “rather silly suggestion” the 

argument than an NLRB decision should be found unreasonable because it conflicted with the 

General Counsel‟s advice. “It is of no moment . . . what was the General Counsel‟s 

understanding of the case law before the present decision issued, and the court will take no note 

of it.” Chelsea Industries, Inc. v. NLRB, 285 F.3d 1073, 1077 (D.C. Cir. 2002). This Court 

should do the same. 

 The Commission ultimately found the evidence insufficient to establish that 

Congressman Hunter became a presidential candidate, and thus could have received an in-kind 

contribution as a candidate, prior to January 2007. (See FEC Mem. at 20-25.) But plaintiffs 

argue (Opp. at 24-26) that some information, notably some of Hunter‟s reported public 

statements and certain statements in the General Counsel‟s reports, supports the conclusion that 

Hunter may have become a candidate in late 2006. However, plaintiffs fail to explain why the 

only reasonable conclusion to be drawn from Hunter‟s reported statements is that he was a 

candidate prior to January 2007. Rather, as we explained (Mem. at 24-25), the statements upon 

which plaintiffs rely do not clearly prove that Hunter had made a final decision to run. Tellingly, 

plaintiffs concede that the late 2006 example to which the Commission pointed in its opening 

brief, in which Hunter reportedly said he was “going to be preparing to run,” is “arguably 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 12 of 23
11

ambiguous.” (Opp. at 25 n.36.) But plaintiffs also argue (id.) that “the record here contains 

more,” presumably referring to other statements mentioned earlier in their brief (see id. at 8). 

However, plaintiffs fail to explain how these other statements — such as one in which plaintiffs 

say Hunter responded to a reporter “without denying that he was running,” and another from 

December 2006 in which he was quoted as saying “I‟m going to be running” (id.) — establish 

that he had finished the “testing the waters” phase and crossed the line to being a committed 

candidate. The absence of a denial is hardly equivalent to a confirmed decision. Moreover, as 

explained above, the views of the General Counsel carry no weight in this Court‟s review of the 

Commission‟s decision. In any event, the First General Counsel‟s Report upon which plaintiffs 

rely most heavily contains only preliminary recommendations about whether to initiate an 

administrative investigation and does not purport to offer definitive conclusions or 

recommendations. See 2 U.S.C. § 437g(a)(2). 

In sum, plaintiffs appear to concede (Opp. at 2, 12, 26, 27) that the Commission‟s 

decision to take no further action regarding the travel costs was an exercise of prosecutorial 

discretion. They simply disagree with the way the Commission evaluated the evidence and its 

own enforcement priorities, and plaintiffs evidently would have made a different decision. But 

that is not a sufficient basis upon which to set aside an agency‟s law enforcement decision; the 

proper test is not whether the decision was one that plaintiffs or even a court would have made, 

but whether the decision was “„sufficiently reasonable‟ to be accepted by a reviewing court.” 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (citation omitted).

Plaintiffs also appear to argue (Opp. at 26-27) that the Commission‟s motion to dismiss 

should be denied because the amended complaint conforms to the basic requirements of Fed. R. 

Civ. P. 8(a). However, the Commission has not argued that the case should be dismissed 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 13 of 23
12

because of technical deficiencies in plaintiffs‟ pleading, but because the complaint fails to state a 

claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Plaintiffs alleged that the 

Commission‟s decision in MUR 5908 was flawed, and the Commission‟s memorandum in 

support of its motion to dismiss explained why its decision was reasonably supported by the 

record and a proper exercise of discretion.5 (See FEC Mem. at 20-27.) In response to that 

explanation, plaintiffs must now do more than put the Commission on notice of their claims; 

rather, plaintiffs must demonstrate why the Commission‟s legal conclusion was contrary to law. 

[T]he tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions. Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do 

not suffice. [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).]

(Although for the purposes of a motion to dismiss we must take all of the 

factual allegations in the complaint as true, we “are not bound to accept as 

true a legal conclusion couched as a factual allegation” (internal quotation 

marks omitted)). 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). The relevant paragraphs in plaintiffs‟ 

amended complaint (see ¶¶ 42-51), however, simply describe the Commission‟s statement of 

reasons and take issue with its legal conclusions. Because plaintiffs cannot demonstrate that the 

reasoning in that statement was contrary to law, their Claim One fails. 

Plaintiffs also assert (Opp. at 27) that the “entire record is so shrouded in secrecy as to 

make it nearly impossible to ascertain what the Commission considered and why.” But a wealth 

 

5

The Commission‟s statement of reasons was referenced in plaintiffs‟ complaint and can 

be considered by the Court when ruling on the pending motion. See Tellabs, Inc. v. Makor 

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its 

entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) 

motions to dismiss, in particular, documents incorporated into the complaint by reference, and 

matters of which a court may take judicial notice.”) (citing 5B Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1357 (3d ed. 2004 and Supp. 2007)); Gargano v. 

Liberty Int’l Underwriters, Inc., 572 F.3d 45, 47 n.1 (1st Cir. 2009) (courts evaluating Rule

12(b)(6) motions consider “documents sufficiently referred to in the complaint” (citation 

omitted)).

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 14 of 23
13

of publicly available evidence explains what the Commission did and why, including the 

statement of reasons, the detailed General Counsel‟s reports, the disclosure reports of PTS PAC 

and the Hunter Committee, and other materials regarding MUR 5908 that are posted on the 

Commission‟s website. (MUR 5908 documents are accessible at 

http://eqs.nictusa.com/eqs/searcheqs.) The publicly released version of General Counsel‟s 

Report #2 reflects limited redactions, but as we have explained, supra pp. 2-3, FECA‟s 

prohibition against releasing information regarding conciliation in the enforcement process

required those redactions. See 2 U.S.C. § 437g(a)(4)(B)(i). Like other federal agencies, the 

Commission is entitled to a presumption of regularity, Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders, 

430 U.S. 99, 105 (1977). Here, plaintiffs have offered no reason why these redactions, which are 

very minor relative to the information available to plaintiffs regarding the agency‟s decisionmaking in the matter, undermine the considerable deference owed to the Commission. 

For all the foregoing reasons, plaintiffs have failed to demonstrate that the Commission‟s 

decision to take no further action and close the file in MUR 5908 was unlawful. Accordingly, 

Claim One of plaintiffs‟ amended complaint should be dismissed.

IV. THIS COURT LACKS JURISDICTION OVER PLAINTIFFS’ “POLICY AND

PRACTICE” CLAIM, WHICH ALSO FAILS TO STATE A CLAIM UPON 

WHICH RELIEF CAN BE GRANTED

As we explained (Mem. at 30-34), FECA does not require the Commission to provide 

administrative complainants 60 days‟ notice prior to the deadline for seeking judicial review 

under 2 U.S.C. § 437g(a)(8). In response, plaintiffs do not point to any language in that or any 

other FECA provision that specifies such a notice requirement. Rather, plaintiffs argue that the 

Commission has a “policy . . . to treat the day on which the Commission dismisses a complaint 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 15 of 23
14

in a closed-door meeting as the date of dismissal for purposes of triggering the statutory 60-day 

period for seeking judicial review.” (Opp. at 28; see also id. at 29.) In fact, however, the 

treatment of the date of dismissal as the trigger for the 60-day period is not a Commission policy, 

but a command of the statute as interpreted by the D.C. Circuit. Spannaus v. FEC, 990 F.2d 643, 

644 (D.C. Cir. 1993) (“The judicial review prescription in this case is precise: the 60-day review 

period runs from the „date of dismissal.‟ 2 U.S.C. § 437g(a)(8)(B).”); Jordan v. FEC, 68 F.3d 

518, 519 (D.C. Cir. 1995); see also FEC Mem. 31-32. For several reasons, this Court lacks 

jurisdiction to reconsider this precedent in the context of plaintiffs‟ case. In any event, Claim 

Two also fails to state a claim upon which relief can be granted.

A. Plaintiffs Lack Both Statutory and Constitutional Standing

Plaintiffs assert jurisdiction under 2 U.S.C. § 437g(a)(8) and the Administrative 

Procedure Act (“APA”), but neither statute provides jurisdiction over the policy and practice 

claim. (See Am. Compl. ¶ 3.) Although plaintiffs “do not concede” that 2 U.S.C. § 437g(a)(8) 

fails to authorize review of their broad “policy” challenge (Opp. 31), they mount no argument 

against that conclusion. (See FEC Mem. at 28-29.) Instead, they rely on the APA: “[T]his Court 

would have jurisdiction under the APA to review Count II.” (Opp. 31.)6 But because plaintiffs‟ 

claim is really a challenge to the D.C. Circuit‟s interpretation of 2 U.S.C. § 437g(a)(8), not any 

policy or regulation of the Commission, it is not subject to APA review. Moreover, plaintiffs fail 

to rebut the Commission‟s showing that the APA cannot be used to circumvent section 

437g(a)(8)‟s procedures or FECA‟s comprehensive scheme for the processing of enforcement 

matters. (FEC Mem. at 35.)

 

6 As the courts have long held, the APA itself does not confer jurisdiction. See, e.g., 

Califano v. Sanders, 430 U.S. 99, 107 (1977); Air Courier Conf. of Am. v. Am. Postal Workers 

Union, AFL-CIO, 498 U.S. 517, 523 n.3 (1991) (“The judicial review provisions of the APA are 

not jurisdictional.”).

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 16 of 23
15

Contrary to plaintiffs‟ contention (Opp. at 32-33), Perot v. FEC, 97 F.3d 553 (D.C. Cir. 

1996), does not support their argument that the APA authorizes judicial review of their policy 

and practice claim. Because FECA has no provisions governing judicial review of regulations, 

Perot makes the uncontroversial point that an action challenging a regulation “should be brought 

under the judicial review provisions of the Administrative Procedure Act.” Id. at 560. The D.C. 

Circuit in Perot did not liken policy and practice claims to challenges to regulations. Indeed, the 

appellate court never mentioned that kind of claim. Moreover, as explained above, the timing 

“policy” that plaintiffs challenge is actually a statutory interpretation by the D.C. Circuit, and 

Perot does not suggest that the APA provides jurisdiction to review such precedent.

Even if plaintiffs‟ policy claim could properly be raised under the APA, that statute‟s 

“presumption of available judicial review is subject to an implicit limitation” — limits on 

jurisdiction under Article III such as ripeness. See Reno v. Catholic Social Services, Inc., 

509 U.S. 43, 57-58 (1993) (citing Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967), 

and Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 891 (1990)). Here, this Court lacks 

jurisdiction over plaintiffs‟ APA-based Claim Two, whether analyzed in terms of ripeness or 

standing. See 13B Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and 

Procedure Jurisprudence §§ 3531.12, 3532.1 (discussing close connection between the 

justiciability categories of ripeness and standing).

As the Supreme Court has noted, the ripeness doctrine “is drawn both from Article III 

limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” 

Catholic Social Services, 509 U.S. at 57 n.18. The Court further explained that “„injunctive and 

declaratory judgment remedies‟” — what CREW and Sloan seek here — “„are discretionary, and 

courts traditionally have been reluctant to apply them to administrative determinations unless 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 17 of 23
16

these arise in the context of a controversy “ripe” for judicial resolution.‟” Id. at 57 (quoting 

Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). In their opposition, plaintiffs have now 

clarified that they “designed” their APA-based claim for declaratory and injunctive relief “to 

prospectively ensure” that the Commission complies with its allegedly statutory obligations “for 

all aggrieved parties.” (Opp. at 30.) But whether these plaintiffs or any other future “aggrieved” 

party will experience “in a concrete way” the allegedly harmful effects of which plaintiffs 

complain is speculative. Abbott Labs., 387 U.S. at 148-49. As we explained (Mem. at 27-28), 

plaintiffs were able to file the instant lawsuit before the end of the 60-day period, and the Court 

cannot now award any relief to “remedy” the alleged injury of their not having received earlier 

notice of the Commission‟s dismissal of their administrative complaint. Thus, they have no 

injury in fact regarding this particular administrative complaint, and any speculation that they 

may not receive sufficient notice in the future is unripe. Plaintiffs also disavow any interest in 

“vindicat[ing] the rights of other administrative complainants not before this Court” (Opp. at 30), 

but even if they had not made such disavowal, potential claims of other future complainants 

would similarly be unripe.

For many of the same reasons that their policy and practice claim is unripe, CREW and 

Sloan lack standing to bring the claim. Although they assert they have suffered a past injury in 

fact, they cannot demonstrate a future injury in fact that is imminent and not conjectural. See 

Chang v. United States, __ F. Supp. 2d __, 2010 WL 3700551 (D.D.C. 2010) (relying upon 

Lyons and United Transp. Union in holding that plaintiffs lacked Article III standing to seek 

prospective equitable relief in their challenge to governmental policy and practice).

Plaintiffs apparently believe that, if their policy and practice claim fails, no administrative 

complainant could ever challenge the rule that the 60-day period begins on the date of the 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 18 of 23
17

Commission‟s dismissal of an administrative complaint. (See, e.g., Opp. at 30.) But, contrary to 

plaintiffs‟ assertion (id.), administrative complainants face no “Catch-22” foreclosing judicial 

review. While it is true that a plaintiff like Sloan, who was able to file her judicial complaint on 

time, has no standing to challenge the 60-day rule, if the Commission failed entirely to notify an 

administrative complainant before the 60 days had run, then that person would presumably be 

able to satisfy the injury-in-fact standing requirement under Article III. As the D.C. Circuit 

noted:

Jordan‟s last point is that starting the clock on the date of dismissal might 

allow the Commission to avoid review by withholding notice of its decision 

until the 60-day period expired. We will face that hypothetical case if and 

when it arises.

Jordan, 68 F.3d at 519. That situation, however, remains hypothetical.

Plaintiffs cite no MUR in which the Commission failed to notify an administrative 

respondent within the 60-day filing period. In fact, the number of days between the 

Commission‟s voting and its notifying an administrative respondent averages about 21 days for 

the Matters Under Review that plaintiffs‟ court complaint cites anecdotally — and that 

calculation includes the anomalous 55 days in one of the MURs. (Am. Compl. ¶¶ 52-66.) Even 

if that average accurately reflects the larger universe of all dismissed administrative complaints 

(which even plaintiffs do not suggest), an administrative complainant who wishes to challenge 

the dismissal of its complaint has time to file a petition for review. 

Plaintiffs mistakenly assert, however, that administrative complainants would violate 

Federal Rule of Civil Procedure 11 if they filed a section 437g(a)(8) petition without knowing 

the grounds for the Commission‟s dismissal. (Opp. at 35-36.) But the complainants need only 

allege that they have not yet received the Commission‟s explanatory documents and that the 

information they currently have supports a challenge to the dismissal. Administrative 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 19 of 23
18

complainants typically rely on publicly available financial filings and news reports in their 

complaints to the Commission, and the complainants can refer to those sources in their court 

petitions. See, e.g., Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 294 n. 9 

(2005) (“There is nothing necessarily inappropriate . . . about filing a protective action.”); cf. In 

re Sealed Case, 494 F.3d 139, 145 (D.C. Cir. 2007) (explaining that, in the context of the state 

secrets privilege, the court has recognized that where “the plaintiff is not in possession of the 

privileged material, „dismissal of the relevant portion of the suit would be proper only if the 

plaintiff[ ] w[as] manifestly unable to make out a prima facie case without the requested 

information‟” (alterations in original; internal citation omitted)). In filing a protective petition, 

the complainant “exercise[s] due diligence in preserving his legal rights.” Spannaus, 990 F.2d 

at 645 (internal quotation marks and citation omitted). Thus, under these procedures, plaintiffs 

face no alleged deprivation of any supposed due process right.

 If the case proceeds and the Commission provides no explanation for its dismissal, the 

courts — rather than blaming the plaintiff for filing its lawsuit prematurely — would likely 

remand the matter with instructions to the Commission to explain its action. See Democratic 

Congressional Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. Cir. 1987). When 

the complainant receives Commission materials explaining the grounds for the dismissal of the 

administrative complaint, the complainant can file an amended judicial complaint, as plaintiffs 

did here. See Fed. R. Civ. P. 15. Or, if those materials satisfactorily answer the complainant‟s 

objections to the dismissal, the complainant can dismiss its protective court filing. Thus, under 

any of these scenarios, a plaintiff would face no risk of violating Rule 11. 

In sum, plaintiffs lack statutory standing under FECA and the APA to bring their 

challenge to the precedent holding that the 60-day clock under section 437g(a)(8) begins to run 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 20 of 23
19

when the Commission dismisses an administrative complaint, and they fail to demonstrate that 

they have suffered an Article III injury in fact that presents a controversy ripe for judicial review. 

B. Even If It Is Reviewable, Plaintiffs’ Policy and Practice Claim Should Be 

Dismissed for Failure to State a Claim Upon Which Relief Can Be Granted

Plaintiffs repeatedly assert that 2 U.S.C. § 437g(a)(8) “guarantees” them and other 

administrative complainants a procedural right to receive notice of the dismissal of their 

complaint and an explanation of that dismissal a “minimum” of 60 days before the statutory 

deadline for filing a petition for judicial review of the dismissal. (See Am. Compl. ¶¶ 2, 15, 52, 

56, 69, 74-78; see also, e.g., Opp. at 29.) As the Commission earlier explained (Mem. at 30-32), 

however, the plain language of 2 U.S.C. § 437g(a)(8)(B) forecloses plaintiffs‟ assertion. The 

provision does not state that the Commission must give notice to the administrative complainant 

or provide documents explaining the basis for the Commission‟s dismissal at the beginning of 

the 60-day judicial review period. Nor does it state that the period for filing runs from the date 

of notification or explanation. Indeed, the provision does not mention notice or an explanation. 

“The judicial review prescription in this case is precise: the 60-day period runs from the „date of 

dismissal.‟” Spannaus, 990 F.2d at 644. 

The Commission can only dismiss or terminate a MUR by an official affirmative vote of 

at least four Commissioners. See 2 U.S.C. § 437c(c). Thus, the “date of dismissal” is the date 

the Commission votes to dismiss or close a matter, a conclusion the D.C. Circuit reached more

than fifteen years ago. Jordan, 68 F.3d at 519. The court there held that Jordan‟s petition “must 

be dismissed for lack of jurisdiction” because he filed the petition 63 days after “[t]he 

Commission voted to dismiss Jordan‟s [administrative] complaint.” “The statute,” the court 

stated, “will support no other result.” Id. 

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 21 of 23
20

Plaintiffs never directly address the statute‟s plain language. They cite no legislative 

history that casts doubt on a straightforward reading. They do not acknowledge that, “where 

filing deadlines are concerned, „a literal reading of Congress‟ words is generally the only proper 

reading of those words.‟” Spannaus, 990 F.2d at 644 (quoting United States v. Locke, 471 U.S. 

84, 93 (1985)). And plaintiffs‟ attempt to distinguish Spannaus and Jordan fails. (Opp. at 

36-37.) In Spannaus, they note (Opp. at 36), “the date of dismissal was „undisputed,‟” and the 

court therefore “had no occasion” to address what the “date of dismissal” means. But the court 

in Jordan viewed Spannaus as “implicitly reject[ing]” the argument that the judicial review 

period begins on the date of the notification letter or its receipt. Jordan, 68 F.3d at 519.7 And 

Jordan rests on the plain language of the statute, not on the distinction between an action taken 

directly by the Commission (the vote to dismiss) and an action by its staff on its instructions (the 

notice letter). 

In sum, the statute‟s plain language and the D.C. Circuit‟s Jordan and Spannaus opinions 

contradict plaintiffs‟ assertion (see, e.g., Opp. at 1) that an arbitrary and capricious Commission 

policy determines when the judicial review period begins. Plaintiffs‟ opposition offers this Court 

only their policy preferences and a potential rewrite of section 437g(a)(8)(B). They would 

prefer, for example, that the Commission operate more like a court. (Opp. at 39-40.) Congress, 

however, did not write a provision to that effect.

 

7 Publicly available records confirm that the date of dismissal identified in Spannaus was 

the date the Commission voted to close the case. See MUR 2163 (American Jewish Committee), 

certification dated Jan. 10, 1991, available at the FEC‟s Public Records Office (certifying Jan. 9, 

1991, Commission vote). The D.C. Circuit later noted this fact in stating that Spannaus

“indicated that the 60-day clock began ticking eight days earlier — on the date of the 

Commission‟s vote.” Jordan, 68 F.3d at 519 (citing Spannaus, 990 F.2d at 644).

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 22 of 23
21

V. CONCLUSION

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

the amended complaint in this matter. 

Respectfully submitted,

Phillip Christopher Hughey

Acting General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

/s/ Robert W. Bonham III

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

Vivien Clair

Attorney

 

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

January 18, 2011 (202) 694-1650

Case 1:10-cv-01350-RMC Document 14 Filed 01/18/11 Page 23 of 23