UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

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

 ) 

 v. ) 

 ) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN 

 SUPPORT OF ITS MOTION TO DISMISS 

 The Federal Election Commission (“Commission” or “FEC”) demonstrated in its 

Memorandum of Points and Authorities in Support of its Motion to Dismiss that portions of the 

complaint filed in this review of agency action seek relief beyond the narrow scope of the 

Federal Election Campaign Act’s (“FECA” or “Act”) judicial-review provision, 52 U.S.C. 

§ 30109(a)(8) (2 U.S.C. 437g(a)(8)). Those portions of the Complaint thus fail to state a claim 

and should be dismissed.1 Plaintiffs Citizens for Responsibility and Ethics in Washington 

(“CREW”) and its Executive Director Melanie Sloan have failed to rebut that showing. Indeed, 

plaintiffs’ response to the FEC’s motion explicitly notes that “CREW does not challenge 

dismissal” of the Administrative Procedure Act (“APA”) portions of the first two counts of the 

four-count complaint. (Pls.’ Opp’n to FEC Mot. to Dismiss at 3 n.4 (Docket No. 11) (“Pls.’ 

Opp’n”).) Plaintiffs’ brief further reveals an utter lack of authority to support their remaining 

APA claims. 

 

1

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

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

former Title 2 citations.

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 1 of 13
2 

All of plaintiffs’ claims challenge the legal analyses articulated in statements by three of 

the FEC’s six Commissioners explaining the agency’s rationale for dismissing certain 

administrative complaints filed with the Commission. In particular, plaintiffs challenge 

determinations that certain entities were not subject to regulation as federal “political 

committees,” because those entities did not have as their “major purpose” the nomination or 

election of federal candidates. See 52 U.S.C.§ 30101(4) (2 U.S.C. § 431(4)); Buckley v. Valeo, 

424 U.S. 1, 79 (1976) (per curiam). Plaintiffs acknowledge that FECA’s judicial-review 

provision, 52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)), provides the “exclusive” procedure 

for challenging FEC dismissal decisions, and that challenges to such dismissal decisions “may be 

reviewed only under the FECA.” (Pls.’ Opp’n at 16.) Plaintiffs nevertheless maintain that they 

are entitled to seek relief pursuant to the APA, in addition to section 30109(a)(8), because an 

article published a few months ago in the New York Times characterized FEC split-vote decisions 

as “‘unofficial law’” and plaintiffs themselves believe that such FEC decisions are “actually . . . 

de facto policies and regulations.” (Pls.’ Opp’n at 1.) Plaintiffs are wrong. Those unsupported 

characterizations are contradicted by FECA and explicit caselaw to the contrary. 

Statements of reasons like the ones plaintiffs challenge here are neither agency policies 

nor regulations. They are the explanations by Commissioners of their rationales for finding the 

allegations in administrative complaints insufficient to pursue further. The statements do not 

purport to state any policies or rules on behalf of the Commission, nor could they; under FECA, 

such non-majority statements of Commissioners cannot establish any rules or policies on behalf 

of the agency. FECA’s judicial-review procedures provide the exclusive mechanism for 

plaintiffs to raise their legal arguments challenging the Commission’s dismissal of their two 

administrative complaints. If plaintiffs are correct that the dismissal decisions they challenge 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 2 of 13
3 

were “arbitrary, capricious, and contrary to law” (Pls.’ Opp’n at 15), plaintiffs can obtain a 

declaratory judgment and an order remanding the matters to the Commission. In other words, 

FECA’s judicial-review provision affords plaintiffs adequate relief and supplemental review 

under the APA is neither necessary nor appropriate. 

 All of plaintiffs’ APA claims fail to state a claim for relief to which plaintiffs are entitled. 

This Court should therefore grant the Commission’s motion and dismiss those claims. (See

Mem. in Supp. of FEC’s Mot. to Dismiss (Docket No. 5) (“FEC Mem.”) at 18.) 

ARGUMENT 

I. STATEMENTS OF REASONS EXPLAINING FEC DISMISSALS RESULTING 

FROM SPLIT-VOTE DECISIONS ARE “NOT LAW” AND CANNOT BE 

CHALLENGED AS RULEMAKINGS OR POLICY DECISIONS UNDER THE 

APA 

Plaintiffs’ APA challenge rests on the incorrect premise that the FEC has “abandon[ed]” 

the “case-by-case analysis” it uses to determine organizations’ political-committee status under 

FECA, and substituted, “[i]n its stead, . . . a bright-line test approach that considers only express 

advocacy conducted during an ill-defined and ever-changing time period.” (Pls.’ Opp’n at 2, 

15.) Over and over, plaintiffs characterize this supposed change as a “de facto” rulemaking, 

regulation, or policy decision, which plaintiffs then reference as the basis of their purported APA 

claims. (Id. at 1, 2, 3, 15, 17, 18, 20; see also Compl. ¶¶ 2, 111-14, 119-22.) 

The Commission has not abandoned its case-by-case approach to determining politicalcommittee status and consistent outcomes in similar administrative enforcement matters do not 

establish otherwise. But even setting aside the factual inaccuracy of plaintiffs’ premise, there are 

at least three fundamental problems with plaintiffs’ legal argument. First, plaintiffs ignore the 

explicit mandate from the Court of Appeals that where the FEC’s Commissioners are evenly 

divided on whether to find reason to believe that FECA has been violated, “the three 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 3 of 13
4 

Commissioners who voted to dismiss must provide a statement of their reasons for so voting” in 

order “to make judicial review a meaningful exercise.” FEC v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992); Democratic Congressional Campaign Comm. v. 

FEC, 831 F.2d 1131, 1134-35 (D.C. Cir. 1987). This is as true in the American Action Network 

(“AAN”) and Americans for Job Security (“AJS”) enforcement matters that plaintiffs challenge 

as it is in any other FEC enforcement matter. 

Second, legal analyses articulated by a group of three FEC Commissioners in such a 

statement of reasons, or anywhere else, could not amount to an agency policy or regulation, de 

facto or otherwise. Under FECA’s plain language, a group of three Commissioners lacks the 

power to conduct the kind of rulemaking or to establish the policy change that plaintiffs allege. 

See 52 U.S.C. § 30106(c) (2 U.S.C. § 437c(c)) (explaining four-vote requirement for 

Commission actions and expressly referencing rulemaking authority); id. § 30107(a)(8) 

(§ 437d(a)(8)) (describing FEC rulemaking authority). The Court of Appeals has thus explained 

that these required statements from declining-to-go-ahead Commissioners in three-three 

dismissals are “not law” and that such statements “would not be binding legal precedent or 

authority for future cases.” Common Cause v. FEC, 842 F.2d 436, 449 & n.32 (D.C. Cir. 1988) 

(emphasis added). The statute explicitly requires that decisions of the Commission “with respect 

to the exercise of its duties and powers under the provisions of th[e] Act shall be made by a 

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

affirmative vote of 4 members of the Commission.” 52 U.S.C. § 30106(c) (2 U.S.C. § 437c(c)) 

(emphasis added); id. § 30107(a)(8) (§ 437d(a)(8)) (rulemaking authority). 

Ignoring FECA’s “[four-vote] requirement . . . would undermine the carefully balanced 

bipartisan structure which Congress has erected.” Common Cause 842 F.2d at 449 & n.32. The 

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5 

fact that a New York Times article erroneously characterizes three-three dismissal decisions as 

“unofficial law” (Pls.’ Opp’n at 1, 18) is insufficient to overcome the contrary holding from the 

Court of Appeals, which, unlike the Times, is binding on this Court. If plaintiffs’ 

characterizations were accurate, every three-three FEC dismissal could be challenged by anyone, 

subverting FECA’s narrow judicial-review provision for aggrieved administrative complainants 

in section 30109(a)(8). See 52 U.S.C. § 30109(a)(8)(A) (2 U.S.C. § 437(g)(a)(8)(A)) (permitting 

only a “party aggrieved by an order of the Commission dismissing a complaint filed by such 

party” to obtain judicial review of that dismissal decision). 

 Plaintiffs’ third and most fundamental mistake is their failure to distinguish between 

adjudication and rulemaking. Agencies have “very broad discretion” whether to address an issue 

by way of adjudication or rulemaking. Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir. 

2007). In determining whether an action is a rulemaking or an adjudication, the Court of 

Appeals reviews whether the action explicitly “amend[s] a prior legislative rule” or invokes the 

agency’s general rulemaking authority. Conference Group, LLC v. FCC, 720 F.3d 957, 965 

(D.C. Cir. 2013). The line dividing adjudication from rulemaking may not always be “bright,” 

United States v. Fl. East Coast Ry. Co., 410 U.S. 224, 245 (1973), but here there can be no 

question that what occurred was adjudication as contemplated by FECA. See In re Sealed Case, 

223 F.3d 775, 780 (D.C. Cir. 2000) (explaining that deference is owed to split-vote FEC 

enforcement dismissals because FECA’s “detailed statutory framework for civil enforcement . . . 

is analogous to a formal adjudication, which itself falls on the Chevron side of the line”). 

As the Supreme Court and D.C. Circuit have recognized, see, e.g., FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); Common Cause, 842 F.2d at 449 n.32; In 

re Sealed Case, 223 F.3d at 780, Congress’s bipartisan design of the agency purposefully 

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6 

requires four Commissioner votes to proceed on an adjudicative enforcement matter, but only 

three to dismiss, in order to ensure that the agency does not “provide room for partisan misuse,” 

H.R. 12406, H. Rep. No 94-917, 94th Cong., 2d Sess. at 3 (1976); see id. (“The four-vote 

requirement serves to assure that enforcement actions, as to which the Congress has no 

continuing voice, will be the product of a mature and considered judgment.”). Viewed in this 

proper context, plaintiffs’ claim that a “de facto” regulatory change has occurred, like their 

equally inaccurate claim that the FEC has generally “abandoned its enforcement role” (Pls.’ 

Opp’n at 1), amounts to nothing more than an erroneous conception of FECA’s administrative 

enforcement process. The challenged statements of reasons do not establish any agency rule or 

policy, rather they reflect “a highly fact-specific, case-by-case style of adjudication” and the 

matters plaintiffs challenge are “simply the latest application of this approach.” Conference 

Group, 720 F.3d at 965. While plaintiffs are statutorily entitled to challenge the reasoning behind 

the Commission’s three-three dismissals of the AJS and AAN matters as “contrary to law,” 

52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)), they cannot challenge such dismissals under 

the APA as if they were a rulemaking or policy decision prospectively changing FEC rules, nor 

can they seek injunctive or any other form of relief beyond the limited relief available under 

section 30109(a)(8).2

 

2

 As the Commission previously explained (FEC Mem. at 17), plaintiffs lack both a cause 

of action and standing to challenge the Commission’s dismissal of an earlier administrative 

complaint filed by Public Citizen and other entities not parties to this litigation against 

Crossroads Grassroots Policy Strategies (“Crossroads”). The Commission also previously 

explained that any attempt to obtain judicial review of the FEC’s dismissal of Public Citizen’s 

administrative complaint against Crossroads in this litigation is time barred. (Id. at 17-18.) 

Plaintiffs do not contest either of these points; instead, they simply characterize the FEC’s 

dismissal of Public Citizen’s administrative complaint as a “discrete decision [that] evidence[s] a 

broader approach of the three-Commission voting bloc.” (Pls.’ Opp’n at 17.) That 

characterization is insufficient to state a claim, for all of the reasons explained above. See supra 

pp. 3-6; see also FEC Mem. at 10-16. 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 6 of 13
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II. FECA’S JUDICIAL-REVIEW PROVISION PROVIDES ADEQUATE RELIEF

 AND PRECLUDES PLAINTIFFS’ OVERLAPPING APA CLAIMS 

There is no dispute that section 30109(a)(8) provides “the exclusive means to challenge 

the FEC’s enforcement actions.” (Pls.’ Opp’n at 16.) Plaintiffs seek to obtain injunctive relief, 

which FECA precludes, simply by repeatedly labeling a group of dismissal decisions as a “de 

facto policy and/or regulation.” Id. at 17. Such made-up labels, however, do not convert a 

challenge to enforcement decisions into a regulatory challenge. Plaintiffs’ APA claims propose 

to do exactly what the Court of Appeals has proscribed: “Congress did not intend to permit a 

litigant challenging an administrative denial . . . to utilize simultaneously both [the statute’s 

review provision] and the APA.” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. 

Dep’t of Health and Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005) (citation omitted) (“El 

Rio Santa Cruz”); Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (explaining that a 

litigant cannot utilize “both [a statutory review provision] and the APA”). 

Here, plaintiffs’ APA claims seek to duplicate the review provided in section 

30109(a)(8), while expanding upon the limited relief available under that provision. But the 

APA “‘[d]oes not provide additional judicial remedies in situations where the Congress has 

provided special and adequate review procedures.’” Bowen v. Mass., 487 U.S. 879, 903 (1988) 

(quoting Attorney General’s Manual on the Administrative Procedure Act 101 (1947)); see id. 

(“When Congress enacted the APA to provide a general authorization for review of agency 

action in the district courts, it did not intend that general grant of jurisdiction to duplicate the 

previously established special statutory procedures relating to specific agencies.”). And where, 

as here, a statutory judicial-review provision specifies “a forum for adjudication, a limited class 

of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial 

relief,” the Supreme Court has held that the remedy permitted by the specific statutory provision 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 7 of 13
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is “generally regarded as exclusive.” Hinck v. United States, 550 U.S. 501, 506 (2007). APA 

review is available only when there is no such statutory remedy. Garcia, 563 F.3d at 522; see 

also FEC Mem. at 10-14. 

Plaintiffs are wrong that pursuing their challenge pursuant to section 30109(a)(8) as 

Congress has mandated provides them “‘no meaningful judicial remedy.’” (Pls.’ Opp’n at 18 

(quoting New York Times).) As even plaintiffs recognize, judicial review under section 

30109(a)(8) “implicates the same considerations as review under the APA.” (Id. at 3 n.4.) In 

other words, FECA’s judicial-review provision permits plaintiffs to pursue their argument that 

the dismissal of their two administrative complaints was contrary to law and, if they satisfy their 

burden, to obtain an order declaring that the dismissals were contrary to law and requiring the 

Commission to conform with that declaration. See 52 U.S.C. § 30109(a)(8)(C) (2 U.S.C. 

§ 437g(a)(8)). 

Neither plaintiffs’ desire to pursue a time-barred challenge to a third dismissal decision 

that it lacks standing to challenge, see supra p. 6 n.2, nor their preference for broader relief than 

what FECA permits demonstrates that relief under section 30109(a)(8) is inadequate. See, e.g., 

Garcia, 563 F.3d at 522-23 (“[T]he alternative remedy need not provide relief identical to relief 

under the APA, so long as it offers relief of the ‘same genre.’”); Women’s Equity Action League 

v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990) (recognizing that even if situation-specific 

litigation is “more arduous, and less effective in providing systemic relief, . . . under our 

precedent, situation-specific litigation affords an adequate, even if imperfect, remedy”); Feinman 

v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C. 2010) (declining to permit APA review when FOIA 

statute specified available remedies); Love v. Connor, 525 F. Supp. 2d 155, 160 (D.D.C. 2007) 

(holding that where narrower relief is provided under an applicable judicial-review statute, “no 

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action will lie under the APA”). Plaintiffs may disagree with Congress’s decision to provide for 

limited judicial review of FEC enforcement decisions in a manner that protects the bipartisan 

design of the agency by preserving the statutory requirement of four Commissioner votes to 

proceed on any adjudicative enforcement matter. See supra pp. 4-5. But they have not even 

attempted to explain why the relief Congress has permitted in section 30109(a)(8) is inadequate. 

III. PLAINTIFFS’ LEGAL AUTHORITIES FAIL TO ADVANCE THEIR 

ARGUMENT 

 Not one of plaintiffs’ authorities provides any legal basis for their novel proposal to treat 

as a “de facto policy or regulation” selected statements of reasons authored by three 

Commissioners that explain those Commissioners’ reasons for voting to dismiss particular 

administrative complaints. Consistencies in such statements of reasons do not transform them 

into a rulemaking. Indeed, as a general matter, “[m]ost norms that emerge from a rulemaking are 

equally capable of emerging (legitimately) from an adjudication.” Qwest Servs. Corp., 509 F.3d 

at 536-37; see Conference Group, 720 F.3d at 966 (holding that the “fact that an order rendered 

in an adjudication ‘may affect agency policy and have general prospective application’ . . . does 

not make it [a] rulemaking subject to APA” (citations omitted)). 

 Plaintiffs purport to rely on Shays v. FEC, 414 F.3d 76, 96 (D.C. Cir. 2005), but their 

own description of the case — as “a challenge to an FEC regulation” (Pls.’ Opp’n at 16) — 

highlights why their reliance on it is misplaced. Indeed, Shays underscores the fundamental flaw 

of plaintiffs’ argument. In Shays, two members of Congress challenged actual FEC regulations 

arguing that the FEC rules improperly narrowed the scope and application of certain statutory 

requirements. 414 F.3d at 79-82. The Court of Appeals found jurisdiction to review the 

challenged regulations under the APA and rejected an argument that section 30109(a)(8) 

provided an adequate remedy for challenging the regulations in the context of future enforcement 

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proceedings. The court found that duly promulgated regulations — i.e., those issued pursuant to 

the Commission’s statutory rulemaking authority, see 52 U.S.C. § 30107(a)(8) (2 U.S.C. 

§ 437d(a)(8)) — could, on their face, “afford a defense” to “FEC non-enforcement.” Id. at 96. 

The opposite is true here. If plaintiffs are correct that the dismissal decisions they challenge are 

“arbitrary, capricious, and contrary to law,” such decisions could not “afford a defense” to “FEC 

non-enforcement.” Compare Pls.’ Opp’n at 15, with Shays, 414 F.3d at 96. Plaintiffs are thus 

wrong that “in these circumstances the remedy under the FECA . . . leaves open the possibility a 

regulation’s validity could never be challenged.” (Pls.’ Opp’n at 19 (emphasis added).) There is 

no regulation being challenged here. 

 Plaintiffs’ attempt to compare this case to Real Truth About Abortion, Inc. v. FEC, 681 

F.3d 544 (4th Cir. 2012) (“Real Truth”), cert. denied, 133 S. Ct. 841 (2013), is similarly flawed. 

As plaintiffs here observe (Pls.’ Opp’n at 17), the plaintiff in that case challenged, inter alia, an 

actual Commission policy decision not to adopt a regulatory definition of the statutory term 

“political committee.” See Real Truth, 681 F.3d at 555 n.4. The Fourth Circuit explained that 

Real Truth’s challenge was based on a formal Commission policy, published in the Federal 

Register, and a final agency rule, which collectively “explain the Commission’s [politicalcommittee]-status enforcement policy.” Id. The notice in the Federal Register, for example, 

explicitly stated that it operated to “place[] the regulated community on notice of the state of the 

law regarding . . . the major purpose doctrine.” Political Committee Status, 72 Fed. Reg. 5595, 

5606 (Feb. 7, 2007); see In the Matter of Supplemental Explanation and Justification in the 

Political Committee Status Rulemaking, Certification (Jan. 31, 2007) (approving policy 

statement by a vote of four Commissioners), available at http://sers.fec.gov/fosers/ (search 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 10 of 13
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“political committee” and select second-listed “vote to approve”) (copy attached as Exh. 1).3

 

And the Commission’s Final Rule explained the reasons the Commission decided “not [to] alter 

its existing method of determining [political-committee] status.” Real Truth, 681 F.3d at 556 

(citing Political Committee Status, Definition of Contribution, and Allocation for Separate 

Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 68,056, 68,056-63 (Nov. 23, 

2004)); see In the Matter of Final Rules and Explanation and Justification for Political 

Committee Status, Certification (Nov. 17, 2004) (approving final rules by a vote of four 

Commissioners), available at http://sers.fec.gov/fosers/ (search “political committee” and select 

first-listed “vote to approve”) (copy attached as Exh. 2). As explained above and in the 

Commission’s memorandum in support of its motion to dismiss, such formal agency rules and 

policy statements are not analogous to a three-Commissioner statement of reasons explaining 

those Commissioners’ reasons for not voting to pursue the allegations in a particular 

administrative complaint. 

 Plaintiffs’ reliance on El Rio Santa Cruz, 396 F.3d at 1265, is also misplaced; that case, 

like the others plaintiffs cite, underscores the error of their arguments. In El Rio Santa Cruz, the 

court reviewed a statute that provided for removal of certain tort claims to Federal court. Id. at 

1269-70. In determining that the removal provision was not the exclusive method for reviewing 

agency decisions under the statute, the Court of Appeals concluded that Congress neither 

intended to provide removal as a remedy, nor was it an actual remedy that would preclude APA 

review. Id.; compare 52 U.S.C. § 30109(a)(8)(C) (2 U.S.C. § 437g(a)(8)(C)) (providing 

 

3

 As the Commission previously explained (see FEC Mem. at 18 n.5), the Court make take 

judicial notice of public records, including publicly available certifications of Commission votes, 

when resolving a motion to dismiss. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 

(D.C. Cir. 2007) (“[P]ublic records [are] subject to judicial notice on a motion to dismiss.”). 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 11 of 13
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explicitly for limited judicial review of Commission decisions and for declaratory relief and 

remand). In contrast, every court that has considered the nature of FECA’s judicial-review 

provision has concluded it is exclusive. (See FEC Mem. at 13 (citing Stockman v. FEC, 138 F.3d 

144, 154 (5th Cir. 1998); Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996)).)4

 

At bottom, plaintiffs criticize Commission votes on enforcement matters that result in 

three-to-three split votes, principally relying on an article from the New York Times. (Pls.’ 

Opp’n at 1 n.1, 18.) But whatever plaintiffs’ level of disagreement with the Commission’s 

enforcement decisions, press statements characterizing the Commission’s decisions do not 

convert them into formal rules subject to an APA challenge. 

CONCLUSION 

FECA provides the exclusive basis for judicial review of the administrative dismissal 

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

 

 

4

 The Commission’s answer to what remains of plaintiffs’ complaint following this Court’s 

resolution of the Commission’s motion to dismiss will be due 14 days after this Court decides 

that motion. See Fed. R. Civ. P. 12(a)(4) (“the responsive pleading must be served within 14 

days after notice of the court’s action”). Plaintiffs acknowledge (Pls.’ Opp’n at 2 n.3) the 

absence of any decision in this Circuit requiring a defendant to carve out and answer portions of 

a complaint where it has moved to dismiss other portions of that pleading. Indeed, the weight of 

authority on this point “is to the effect that the filing of a motion that only addresses part of a 

complaint suspends the time to respond to the entire complaint, not just to the claims that are the 

subject of the motion.” Charles Alan Wright, et al., 5B Fed. Prac. & Proc. Civ. § 1346 (3d ed. 

2014); see, e.g., Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F. Supp. 2d 598, 638 

(N.D. Iowa 2006) (“[T]here is a strong implication from the language of Rule 12(a)(4) itself that 

the rule extends the time to answer the complaint, as a whole, when a Rule 12(b) motion to 

dismiss is filed, even if the Rule 12(b) motion does not challenge all of the claims asserted in the 

complaint.”). 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 12 of 13
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relief available here. This Court should dismiss the portions of counts one and two of plaintiffs’ 

complaint that seek relief pursuant to the APA and counts three and four of plaintiffs’ complaint 

in their entirety. 

Respectfully submitted, 

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

Deputy General Counsel 

Kevin Deeley 

Acting Associate General Counsel 

 

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

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

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

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

Attorneys 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

December 16, 2014 (202) 694-1650 

Case 1:14-cv-01419-CRC Document 12 Filed 12/16/14 Page 13 of 13