UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THOMAS P. TIERNEY,

Plaintiff,

v. Civil Action No. 06-0663 (JDB)

FEDERAL ELECTION COMMISSION,

 Defendant.

MEMORANDUM OPINION

Plaintiff Thomas P. Tierney seeks judicial review of the dismissal by defendant Federal

Election Commission ("FEC") of his administrative complaint challenging the Massachusetts

Republican State Congressional Committee's campaign spending in 2004. The FEC has moved to

dismiss for lack of standing, or alternatively for summary judgment on the ground that the FEC's

decision to dismiss Tierney's administrative complaint was not "contrary to law" under 2 U.S.C.

§ 437g(a)(8)(C). For his part, Tierney has moved for judgment on the pleadings. For the reasons

explained below, the Court will grant the FEC's motion and deny Tierney's motion.

BACKGROUND

Shortly before the 2004 election, in which he was a candidate, Tierney filed an

administrative complaint with the FEC asserting that the Massachusetts Republican State

Congressional Committee ("Mass. Repub. Committee") unlawfully failed to spend funds to

support Republican candidates for federal office in Massachusetts. He alleged that the

Mass. Repub. Committee improperly spent most of more than $3 million in federal contributions

Case 1:06-cv-00663-JDB Document 33 Filed 03/12/2008 Page 1 of 7
 The FEC may follow its General Counsel's recommendation without writing its own 1

statement of reasons, in which case the General Counsel's report is sufficient to support the

dismissal of a complaint. See FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 38-

39 n.19 (1981); Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1186 n.2 (D.C.

Cir. 1985).

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received during the 2004 election cycle on state and local campaigns rather than federal campaign

activity.

The FEC considered Tierney's complaint and determined that, based on the facts asserted,

there was no basis to conclude that the Mass. Repub. Committee had violated the Federal Election

Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-55 ("the Act" or "FECA"). Adopting the

First General Counsel's Report, the FEC concluded that although FECA limits and governs how 1

federal funds are raised, it does not restrict the use of federal funds by state political parties. 

FECA therefore neither requires the Mass. Repub. Committee to spend its federal funds on

congressional candidates nor bars it from spending federal funds on state and local elections -- the

choice is entirely up to a state party's committee to decide how to spend its federal funds. The

FEC voted unanimously to adopt the General Counsel's recommendation and dismiss Tierney's

administrative complaint. Tierney then sought review of that decision in this Court.

DISCUSSION

The FEC contends both that Tierney lacks standing to pursue this action and that, even if

he has standing, the dismissal of Tierney's administrative complaint by the FEC was not contrary

to law. The Court agrees with the FEC on both points.

I. Tierney Has Not Established Standing

Determining standing is a threshold jurisdictional requirement. Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 101-02 (1998); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990);

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Kucinich v. Bush, 236 F. Supp. 2d 1, 3 n.5 (D.D.C. 2002). Tierney, as plaintiff in this action, has

the burden of establishing his standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). By now, the three "irreducible constitutional minimum" elements of standing that must be

shown are quite familiar: an injury-in-fact, a causal relationship between that injury and the action

that is challenged, and the likelihood that the injury can be redressed by the relief sought in court. 

Lujan, 504 U.S. at 560-61. The Supreme Court has emphasized that the injury asserted must be

"concrete and particularized" and "actual or imminent," and not "conjectural" or "hypothetical" or

merely a generalized grievance about government. Id. at 560, 573-74; see also FEC v. Akins, 524

U.S. 11, 23 (1998). Moreover, with respect to causation (or traceability), the injury must be fairly

traceable to the challenged action of the defendant, rather than resulting from a third party's

independent action, and standing is "substantially more difficult" to establish when an asserted

injury results from "the government's allegedly unlawful regulation (or lack of regulation) of

someone else." Lujan, 504 U.S. at 560-62 (emphasis in original).

Tierney's action is apparently brought pursuant to 2 U.S.C. § 437g(a)(8). However, that

provision "does not confer standing; it confers a right to sue upon parties who otherwise already

have standing." Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). While Tierney

appears to assert that he has been harmed by the decision of the Mass. Repub. Committee not to

assist his 2004 campaign financially, "'[p]ast exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief.'" Natural Resources Defense Council v.

Pena, 147 F.3d 1012, 1022 (D.C. Cir. 1988) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96

(1974)). The FEC has argued, then, that as a former candidate without plans to seek future office,

Tierney's claim of past injury is not an injury-in-fact sufficient to confer standing in this action

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seeking injunctive relief only.

Tierney has now clarified that he also is a candidate in the September 4, 2007 special

primary for a Massachusetts congressional seat, although that election, too, has now passed. But

he has not explained what future injury he will face given that he appears to have conceded that

the Mass. Repub. Committee is not required to provide financial support to his particular

candidacy. Hence, a "concrete and particularized" injury-in-fact remains lacking here.

So, too, Tierney has not met the traceability and redressability prongs of the standing test. 

His injury was not caused by the FEC's conduct in dismissing his administrative complaint, but by

the independent actions of a third party -- the decision of the Mass. Repub. Committee not to

spend its federal funds to support Tierney's 2004 candidacy (or even his 2007 candidacy). The

specific decision not to provide him any financial support, then, is not traceable to the FEC or to

FECA more generally. See Lujan, 504 U.S. at 560-61; Albanese v. FEC, 78 F.3d 66, 68 (2d Cir.

1996) (FECA does not require contributions to any candidate, but only limits the permitted

amounts of contributions; hence, the claimed injury was not attributable to FECA). And even if

Tierney is conjecturing that the Mass. Repub. Committee will not spend its funds to support his

candidacy in any future election, that hypothetical possibility likewise would not be traceable to

any action of the FEC or requirement of FECA. Finally, the relief he seeks -- a "forensic

accounting" of the Committee's disbursements during the 2004 election and establishment of an

"operational standard" for such spending, and an order restoring certain funds to the Committee --

would not seem to remedy his own alleged injury during the 2004 campaign or concerns that the

Committee might decide not to spend its federal funds on him in the future.

For these reasons, Tierney has not met his burden to establish the essential elements of

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standing -- injury-in-fact, traceability and redressability. He therefore does not have standing and

the FEC's motion to dismiss for lack of jurisdiction will be granted.

II. The Dismissal of Tierney's Administrative Complaint Was Not "Contrary to Law"

Even if Tierney had standing, he cannot satisfy the strict standard for overturning an FEC

decision to dismiss an administrative complaint. The D.C. Circuit has emphasized that under this

highly deferential standard that presumes the validity of the FEC's action, a court "may set aside

the FEC's dismissal of a complaint only if its action was contrary to law, see 2 U.S.C.

§ 437g(a)(8), e.g., arbitrary and capricious, or an abuse of discretion." Hagelin v. FEC, 411 F.3d

237, 242 (D.C. Cir. 2005); see also Common Cause, 108 F.3d at 415. Once again, the burden of

proof is on Tierney as the party challenging agency action as arbitrary and capricious. See San

Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).

The FEC's decision was not contrary to law or arbitrary and capricious. Rather, the

decision to dismiss Tierney's administrative complaint was based on the plain language of FECA,

which contains no restriction on how a state political party committee spends its federal funds. 

There simply is no provision in FECA that requires disbursement of such funds for any specific

purpose or that prohibits the use of those funds for non-federal purposes. As the General Counsel,

and hence the FEC, concluded, the term "federal funds" only means that the funds have been

raised and reported in compliance with FECA, not that those funds must be spent on federal

candidates.

While acknowledging that there is no statutory restriction to support his position, Tierney

nonetheless argues that there is an unwritten restriction, or that the FEC or this Court should

create one. But the Act leaves state parties unrestricted except as expressly indicated. Tierney's

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 Tierney's reliance on provisions of the Employee Retirement Income Security Act of 2

1974 is likewise unconvincing. That statute cannot supply Congressional intent or statutory

language for FECA.

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"analogies" to 11 C.F.R. § 106.7(b) and to 2 U.S.C. § 439a to support his plea for this Court to fill

a statutory gap are not persuasive. Section 106.7 only applies where state political parties choose

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to spend funds on both federal and non-federal elections, but does not require parties to disburse

funds in support of federal candidates. And section 439a simply sets restrictions on the personal

use of funds by candidates, but says nothing about spending by state political party committees.

In the end, Tierney cannot supply by analogy or otherwise that which Congress has not

provided in the language of FECA. The statute leaves state political parties unrestricted as to how

they can spend their federal funds. There is no basis to assume, as Tierney urges, that state

political parties cannot spend federal funds on non-federal purposes because FECA does not

specifically permit it. Moreover, it is not for the courts to create such restrictions and add them to

FECA; that is the role of the political branches, and particularly Congress. See, e.g., Whitmore v.

Arkansas, 495 U.S. at 161; Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.

837, 865-66 (1984); TVA v. Hill, 437 U.S. 153, 194-95 (1978). As the FEC emphasizes, "FECA

does not regulate how state political parties spend their federal dollar contributions, and the courts

have no role in our constitutional system to substitute their policy preferences, if any, for this

expression of congressional will." FEC Reply at 3; see Whitmore v. FEC, 68 F.3d 1212, 1215

(9th Cir. 1995). The Court agrees and concludes that the FEC's dismissal of Tierney's

administrative complaint was not contrary to law.

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CONCLUSION

For the foregoing reasons, the FEC's motion to dismiss or, alternatively, for summary

judgment will be granted, and Tierney's motion for judgment on the pleadings will be denied. A

separate order will be issued.

 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: March 12, 2008 

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