UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

TU NGUYEN, )

)

Plaintiff, ) Civ. No. 17-mc-1048 (RBW)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6), defendant

Federal Election Commission (“Commission” or “FEC”) hereby moves to dismiss plaintiff’s

Complaint challenging, under 52 U.S.C. § 30109(a)(8), the Commission’s dismissal of his

administrative complaint. This Court lacks jurisdiction because plaintiff’s suit is time-barred, he 

does not have Article III standing, and he has failed to perfect service as required by Rule 4. In 

addition, plaintiff has failed to state a claim, because it was not contrary to law for the 

Commission to dismiss his inadequate administrative complaint, under the highly deferential 

standard of review. 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 1 of 33
2

A supporting memorandum of points and authorities and a proposed order accompany 

this motion.

Respectfully submitted,

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

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley s/ Benjamin A. Streeter III

Associate General Counsel Benjamin A. Streeter III

kdeeley@fec.gov Attorney

bstreeter@fec.gov

 FEDERAL ELECTION COMMISSION

999 E Street NW

August 30, 2017 Washington, DC 20463

(202) 694-1650

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 2 of 33
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

TU NGUYEN, )

)

Plaintiffs, ) Civ. No. 17-mc-1048 (RBW)

)

v. )

) MEMORANDUM IN SUPPORT

FEDERAL ELECTION COMMISSION, ) OF MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION TO DISMISS

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

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley Benjamin A. Streeter III

Associate General Counsel Attorney

kdeeley@fec.gov bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

August 30, 2017 (202) 694-1650

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 3 of 33
i

TABLE OF CONTENTS

Page

I. STATUTORY AND REGULATORY BACKGROUND ..................................................... 3

A. The Federal Election Commission............................................................................ 3

B. FECA’s Reporting Requirements and Prohibitions Against Contributions by 

 Corporations and Foreign Nationals......................................................................... 3

C. FECA’s Administrative Enforcement Process and Judicial Review ........................ 5

D. The Administrative Complaint and Commission Action in This Matter.................. 6

II. THIS CASE SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(1) BECAUSE 

 PLAINTIFF’S COMPLAINT IS UNTIMELY AND HE LACKS STANDING................... 7

A. The Complaint Is Untimely, Warranting Dismissal with Prejudice ......................... 7

B. Plaintiff Lacks Article III Standing to Bring This Suit............................................ 8

 1. Standing Requires a Concrete and Particularized Injury .................................... 8

 2. Nguyen’s Desire to Compel the FEC to “Get the Bad Guys” Is Not a 

 Legally Cognizable Injury ................................................................................ 10

III. THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(5) 

 BECAUSE PLAINTIFF FAILED TO PERFECT SERVICE.............................................. 14

IV. THE COMPLAINT MUST BE DISMISSED UNDER RULE 12(b)(6) BECAUSE 

 IT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ........... 16

A. The Commission’s Dismissal of Plaintiff’s Administrative Complaint Was 

 Reasonable Under the Highly Deferential Standard of Review ............................. 16

B. The Administrative Procedure Act Provides No Basis for Review Here, Where 

 FECA Provides an Adequate Judicial Review Mechanism.................................... 20

V. CONCLUSION.................................................................................................................... 23

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ii

TABLE OF AUTHORITIES

Cases Page

All. for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004)........................................12

All. for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005)..................................11, 13

Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000)..................................................... 11

Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) .......................................... 11

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 900 (2016)................... 8

Ashcroft v. Iqbal, 556 U.S. 662 (2009)..................................................................................8-9, 20

Bank of N.Y. Mellon Trust Co. v. Henderson, 862 F.3d 29 (D.C. Cir. 2017).........................19

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)......................................................................... 20

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984)..................................................................... 21

Bowen v. Massachusetts, 487 U.S. 879 (1988)............................................................................. 22

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................... 3

Candido v. District of Columbia, 242 F.R.D. 151 (D.D.C. 2007).....................................14, 15-16

Carter/Mondale Presidential Comm. v. FEC, 711 F.2d 279 (D.C. Cir. 1983)............................... 7

Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337 

(D.C. Cir. 2007)................................................................................................................... 17, 19

Citizens for Responsibility & Ethics in Wash. v. FEC, No. 16-259, 2017 WL 1080920 

(D.D.C. March 3, 2017)............................................................................................................. 22

Citizens for Responsibility & Ethics in Wash. v. FEC, 164 F. Supp. 3d 113

(D.D.C. 2015)............................................................................................................................ 23

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t. of the Treasury, IRS, 

21 F. Supp. 3d 25 (D.D.C. 2014)............................................................................................... 11

Citizens United v. FEC, 558 U.S. 310 (2010)................................................................................. 4

Coal River Energy, LLC v. Jewell, 751 F.3d 659 (D.C. Cir. 2014).............................................. 22

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 5 of 33
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Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ........................................ 9, 10, 11, 12, 13

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................................................5-6

Darby v. McDonald, Secretary, U.S. Dept. of Veterans Affairs, 307 F.R.D. 254 

(D.D.C. 2014)............................................................................................................................ 14

FEC v. Akins, 524 U.S. 11 (1998)............................................................................................. 6, 11

FEC v. Club for Growth, 432 F. Supp. 2d 87 (D.D.C. 2006)....................................................... 20

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)........................6, 16-17, 19

Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22 (D.D.C. 2006) ............................. 9

Freedom Republicans, Inc. v. FEC, 13 F.3d 412 (D.C. Cir. 1994) .............................................. 10

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ............ 9, 10

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)..................................................................... 9

Garcia v. Vilsack, 563 F.3d 519 (D.C. Cir. 2009)........................................................................ 22

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)..................................................................... 17, 19

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) ................................................................................ 8

Judd v. FCC, 276 F.R.D. 1 (D.D.C. 2011) ................................................................................... 15

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ................................................. 10

Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013)................................................................. 21

Koerner v. United States, 246 F.R.D. 45 (D.D.C. 2007).............................................................. 15

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................. 9, 10, 13

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ..................................................................... 16

Mann v. Castiel, 681 F.3d 368 (D.C. Cir. 2012)..................................................................... 14, 16

Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................... 16

McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936) .................................. 9

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011)........................................................................ 20

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 6 of 33
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NRA v. FEC, 854 F.2d 1330 (D.C. Cir. 1988)................................................................................ 7

Ojelade v. Unity Health Care Inc., 962 F. Supp. 2d 258 (D.D.C. 2013)...................................... 15

Olson v. FEC, 256 F.R.D. 8 (D.D.C. 2009).................................................................................. 15

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)............................................................................ 16

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)............................................................................. 6, 22

Salmeron v District of Columbia, 113 F. Supp. 3d 263 (D.D.C. 2015)........................................ 14

SEC v. Chenery Corp., 318 U.S. 80 (1943).................................................................................... 6

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ................................................................................ 23

Spannaus v. FEC, 990 F.2d 643 (D.C. Cir. 1993).......................................................................... 8

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)........................................................................... 22

U.S. ex rel Cody v. Computer Servs. Corp., 246 F.R.D. 22 (D.D.C. 2007).................................. 16

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013)..................................................................... 10

Wertheimer v. FEC, 268 F.3d 1070 (D.D.C. 2001)................................................................ 10, 11

Statutes

5 U.S.C. § 704............................................................................................................................... 22

5 U.S.C. § 706(2).................................................................................................................... 13, 21

52 U.S.C. § 30101(4)(A)................................................................................................................. 3

52 U.S.C. § 30101(8)(A)(i)............................................................................................................. 3

52 U.S.C. § 30101(9)(B)................................................................................................................. 3

52 U.S.C. § 30101(17).................................................................................................................... 4

52 U.S.C. § 30102........................................................................................................................... 4

52 U.S.C. § 30103........................................................................................................................... 4

52 U.S.C. § 30104........................................................................................................................... 4

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52 U.S.C. § 30104(c) .................................................................................................................... 13

52 U.S.C. § 30104(c)(1).................................................................................................................. 4

52 U.S.C. § 30104(c)(2).................................................................................................................. 4

52 U.S.C. § 30104(c)(2)(C) ............................................................................................................ 4

52 U.S.C. § 30106........................................................................................................................... 3

52 U.S.C. § 30106(b)(1) ................................................................................................................. 3

52 U.S.C. § 30106(c) ...................................................................................................................... 5

52 U.S.C. § 30107........................................................................................................................... 3

52 U.S.C. § 30107(a)(8)............................................................................................................ 3, 23

52 U.S.C. § 30109(a)(1).................................................................................................. 3, 5, 19, 20

52 U.S.C. § 30109(a)(2).................................................................................................................. 5

52 U.S.C. § 30109(a)(4)(A)(i) ........................................................................................................ 5

52 U.S.C. § 30109(a)(6).................................................................................................................. 3

52 U.S.C. § 30109(a)(6)(A)............................................................................................................ 5

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

52 U.S.C. § 30109(a)(8)(A)............................................................................................................ 5

52 U.S.C. § 30109(a)(8)(B) ................................................................................................ 1, 5, 7, 8

52 U.S.C. § 30109(a)(8)(C) .......................................................................................... 6, 13, 16, 21

52 U.S.C. § 30111(a)(8).................................................................................................................. 3

52 U.S.C. § 30118(a) ...................................................................................................................... 4

52 U.S.C. § 30118(b)(2)(C)............................................................................................................ 4

52 U.S.C. § 30118(b)(3) ................................................................................................................. 4

52 U.S.C. § 30121(a)(1).................................................................................................................. 4

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52 U.S.C. § 30121(b)...................................................................................................................... 5

Regulations

11 C.F.R. § 109.10(e)(1)(vi)................................................................................................. 2, 4, 13

11 C.F.R. § 111.4............................................................................................................................ 5

Miscellaneous

Federal Rule of Civil Procedure 4(c)(2) ............................................................................. 2, 14, 15

Federal Rule of Civil Procedure 4(i)................................................................................... 2, 14, 15

Federal Rule of Civil Procedure 4(m)........................................................................... 2, 14, 15, 16

Federal Rule of Civil Procedure 12(b)(1)................................................................................... 1, 7

Federal Rule of Civil Procedure 12(b)(5)................................................................................. 1, 14

Federal Rule of Civil Procedure 12(b)(6)........................................................................... 1, 16, 20

Political Committee Status: Supplemental Explanation and Justification, 72 Fed. Reg. 5595 (Feb. 

7, 2007)........................................................................................................................................ 3

U.S. Const. Art. III.................................................................................................................1, 8-11

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 9 of 33
Plaintiff Tu Nguyen’s pro se action challenging the Federal Election Commission’s 

(“Commission” or “FEC”) handling of his administrative complaint should be dismissed under 

Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). The Court lacks jurisdiction, 

both because plaintiff failed to meet the sixty-day filing deadline and because he lacks Article III 

standing to compel the FEC to pursue his allegations. In any event, the FEC’s dismissal of 

plaintiff’s complaint was not contrary to law under the highly deferential standard of review.

1

 

Plaintiff filed his administrative complaint with the FEC on June 11, 2016. In that 

complaint, Nguyen alleged that the Human Rights for Vietnam Political Action Committee 

(“HRV PAC”) had violated the Federal Election Campaign Act (“FECA” or “Act”) in 

connection with dealings with the Vietnam Reform Party (“Viet Tan”), the Saigon Broadcasting 

Television Network (“SBTN”), and Loretta Sanchez for Senate, the authorized candidate 

committee of then-Congresswoman Loretta Sanchez (“Sanchez Committee”). On February 22, 

2017, the FEC found no reason to believe that the Act had been violated, and the agency 

dismissed Nguyen’s administrative complaint. On April 25, sixty-two days later, Nguyen filed 

this action. Plaintiff now alleges that the dismissal of his complaint was contrary to law because 

of the existence of “potential” unlawful foreign and corporate contributions to the Sanchez 

campaign, as well as “potential” reporting violations. (Compl. for Injunctive and Declaratory 

Relief (Docket No. 1) (“Compl.”) at 1.)

Plaintiff’s Complaint must be dismissed with prejudice. First, Nguyen has failed to 

comply with the jurisdictional time limit for filing his Complaint. The D.C. Circuit has 

recognized that 52 U.S.C. § 30109(a)(8)(B) requires such suits to be brought within sixty days of 

 1 Because the paragraph numbering in plaintiff’s court Complaint (including its 

attachments) is not consistent, this brief will cite the pagination contained in the ECF version of 

the Complaint (Docket No. 1) when necessary. 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 10 of 33
2

the dismissal of an administrative complaint. This Nguyen failed to do. In addition, Nguyen has 

failed to establish Article III standing to pursue this suit because he has demonstrated no 

concrete and particularized injury and relies instead upon a broad desire to see federal law 

enforced, i.e., to have the FEC “get the bad guys.” Nor, as a Texas voter complaining about past 

political activities in California, can he show any deprivation of information that would be useful 

to him in voting. Plaintiff’s Complaint also purports to include a challenge to 11 C.F.R. §

109.10(e)(1)(vi), an FEC regulation governing disclosure of independent expenditures, but 

Nguyen fails to explain this claim. (Compl. at 1-2.) In any event, he has no standing to pursue it 

because there was no allegation regarding independent expenditures in the administrative matter. 

Nguyen has also failed to perfect service in this case, in violation of Federal Rules of 

Civil Procedure 4(c)(2), 4(i), and 4(m). Despite this failure, plaintiff filed on August 23, 2017 a 

Motion for Entry of Default (Docket No. 4) asking that the clerk enter default, as well as a 

Motion for Default Judgment (Docket No. 5) the next day wrongly asserting that the clerk had 

actually entered default. Plaintiff’s motions are baseless because the FEC has yet to be properly 

served, and in any event his motions are now moot in light of the FEC’s motion to dismiss. 

Even if there was jurisdiction in this case, plaintiff’s complaint would fail to state a claim 

because review of the FEC’s enforcement decisions is highly deferential and the agency’s action 

here was not contrary to law. The Commission permissibly determined that there was no reason 

to believe HRV PAC had violated FECA and no reason to pursue any of the other entities the 

Commission chose to designate as respondents in the matter. Plaintiff also purports to bring this 

action under the Administrative Procedure Act (“APA”), but no such action is available where a 

statute like FECA provides an adequate review mechanism. 

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I. STATUTORY AND REGULATORY BACKGROUND

A. The Federal Election Commission 

The FEC is a six-member independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106-07. Congress authorized the Commission to “formulate policy” with respect to 

FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry 

out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible 

violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction to 

initiate civil enforcement actions for violations of FECA in the United States district courts. Id.

§§ 30106(b)(1), 30109(a)(6).

B. FECA’s Reporting Requirements and Prohibitions Against Contributions by 

Corporations and Foreign Nationals

Entities meeting FECA’s definition of “political committee” are subject to rules 

regarding the making and reporting of contributions and expenditures in federal elections. FECA 

defines “political committee” as “any committee, club, association, or other group of persons 

which receives” more than $1,000 in “contributions” or “which makes” more than $1,000 in 

“expenditures” in any given calendar year. 52 U.S.C. § 30101(4)(A). The Act further defines 

contributions and expenditures to cover those contributions and expenditures that are made “for 

the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i), (9)(B). 

In addition, the Supreme Court has held that only organizations whose major purpose is federal 

campaign activity may be deemed political committees. See Buckley v. Valeo, 424 U.S., 1, 79 

(1976); see also Political Committee Status: Supplemental Explanation and Justification, 72 

Fed. Reg. 5595, 5597, 5601 (Feb. 7, 2007). A group that qualifies as a political committee under 

FECA is subject to recordkeeping and disclosure requirements; it must register with the FEC, 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 12 of 33
4

appoint a treasurer, and file periodic financial disclosure reports with the Commission that 

include lists of contributions, expenditures, and donor information. 52 U.S.C. §§ 30102, 30103, 

& 30104.

The Act prohibits corporations from contributing their treasury funds to candidate 

committees. 52 U.S.C. § 30118(a). Corporations are, however, permitted to form separate 

segregated funds (commonly known as “PACs”), which may make contributions using funds 

raised from certain persons affiliated with the corporation. 52 U.S.C. § 30118(b)(2)(C), (b)(3).

“Independent expenditure[s]” are expenditures expressly advocating the election or 

defeat of a clearly identified candidate and not made in concert, cooperation with, or at the 

request of a candidate or political party. 52 U.S.C. § 30101(17). Although it is prohibited by 

FECA, corporate treasury funds may now permissibly be used to finance independent 

expenditures after the Supreme Court struck down the prohibition on corporations financing 

independent expenditures. See Citizens United v. FEC, 558 U.S. 310 (2010). 

FECA also requires any person who makes an independent expenditure in excess of $250 

to file a statement disclosing certain information. 52 U.S.C. § 30104(c)(1), (c)(2). Among other 

things, the Act requires the identification of “each person who made a contribution in excess of 

$200 to the person filing such statement which was made for the purpose of furthering an 

independent expenditure.” 52 U.S.C. § 30104(c)(2)(C). Accordingly, an FEC regulation 

requires identification of “each person who made a contribution in excess of $200 to the person 

filing such report, which contribution was made for the purpose of furthering the reported 

independent expenditure.” See 11 C.F.R. § 109.10(e)(1)(vi).

FECA also prohibits the making of a contribution by a foreign national. 52 U.S.C. § 

30121(a)(1) (“It shall be unlawful for a foreign national, directly or indirectly, to make ... a 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 13 of 33
5

contribution or donation of money or other thing of value, or to make an express or implied 

promise to make a contribution or donation, in connection with a Federal, State or local 

election.”). Foreign nationals are defined as persons who are not citizens, nationals, or 

permanent residents of the United States. Id. § 30121(b).

C. FECA’s Administrative Enforcement Process and Judicial Review

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the Act. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. § 111.4. After 

reviewing the complaint and any response filed by the respondent whose conduct is at issue, the 

Commission considers whether there is “reason to believe” that FECA has been violated. 52 

U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find such reason to 

believe, the Commission may investigate the alleged violation; otherwise, the Commission 

dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

If an investigation is conducted, afterwards the FEC must determine whether there is 

“probable cause” to believe that FECA has been violated. 52 U.S.C. § 30109(a)(4)(A)(i). If the 

Commission votes to find that there is probable cause, the agency is statutorily required to 

attempt to remedy the apparent violation informally and attempt to reach a conciliation 

agreement with the respondent. Id. If the Commission is unable to reach a conciliation 

agreement, FECA authorizes the agency to institute a de novo civil enforcement action in federal 

district court. Id. § 30109(a)(6)(A). 

If the FEC determines that no violation has occurred or decides to dismiss the 

administrative complaint for some other reason, FECA provides the complainant with a narrow 

cause of action for judicial review of the dismissal decision. 52 U.S.C. § 30109(a)(8)(A). “Any 

petition” seeking such review “shall be filed, in the case of the dismissal of a complaint by the 

Commission, within 60 days after the date of that dismissal.” 52 U.S.C. § 30109(a)(8)(B). 

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6

In challenges to FEC dismissals, the judicial task “is limited.” Common Cause v. FEC, 

842 F.2d 436, 448 (D.C. Cir. 1988) (describing judicial review under section 30109(a)(8)). The 

Commission “has the ‘sole discretionary power’ to determine in the first instance whether or not 

a civil violation of the Act has occurred,” and “Congress wisely provided that the Commission’s 

dismissal of a complaint should be reversed only if ‘contrary to law.’” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (citations omitted). FECA also expressly 

limits the scope of relief available to a plaintiff challenging an FEC dismissal decision. The 

reviewing court may (a) declare that the Commission’s dismissal was “contrary to law” and 

(b) order the Commission to “conform with” the court’s declaration within 30 days. 52 U.S.C. 

§ 30109(a)(8)(C); see Perot v. FEC, 97 F.3d 553, 557-59 (D.C. Cir. 1996). A judicial order to 

“conform with” a contrary-to-law declaration cannot mandate a different outcome on remand; 

the Commission remains free to reach the same outcome based on a different rationale. FEC v. 

Akins, 524 U.S. 11, 25 (1998) (explaining that the Commission “(like a new jury after a mistrial) 

might later, in the exercise of its lawful discretion, reach the same result for a different reason” 

(citing SEC v. Chenery Corp., 318 U.S. 80 (1943))).

D. The Administrative Complaint and Commission Action in This Matter

On June 20, 2016, Tu Nguyen filed his administrative complaint, which was designated 

FEC Matter Under Review (“MUR”) 7059 for administrative purposes. The administrative 

complaint alleged FECA violations by HRV PAC in 2015 and 2016. The Commission also 

named as respondents in the matter Don Le in his official capacity as HRV PAC’s treasurer, 

SBTN, former Congresswoman Sanchez, the Sanchez Committee, and Ashleigh Aitken in her 

official capacity as the Sanchez Committee’s treasurer. The complaint’s allegations stemmed

from HRV PAC’s alleged dealings with the political party Viet Tan. 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 15 of 33
7

Using the information contained in the administrative complaint, responses provided by 

respondents, and publicly available information, the Office of General Counsel identified three 

areas of allegations potentially involving FECA: potential corporate contributions from SBTN to 

Sanchez and HRV PAC, alleged contributions to the Sanchez committee by foreign nationals, 

and alleged reporting violations by HRV PAC. (See Compl. (Docket No. 1) Exh. 1, FEC Factual 

& Legal Analysis (“F&LA”), ECF p. 35.) The Office of General Counsel recommended that the 

Commission find no reason to believe that any respondent had committed any of these alleged 

violations of the Act, and on February 22, 2017, the Commission unanimously approved the 

General Counsel’s recommendation and dismissed the administrative complaint. The FEC letter 

informing Nguyen of this action was dated March 3, 2017, and sent to him by certified mail. 

(Compl. at 33.) Plaintiff filed this action on April 25, 2017, sixty-two (62) days after the FEC’s

dismissal. 

II. THIS CASE SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(1) 

BECAUSE PLAINTIFF’S COMPLAINT IS UNTIMELY AND HE LACKS 

STANDING 

A. The Complaint Is Untimely, Warranting Dismissal with Prejudice

The Commission dismissed plaintiff’s administrative complaint on February 22, 2017. 

The FEC informed plaintiff of this decision in a letter dated March 3, 2017 and sent to plaintiff 

by certified mail, along with a detailed Factual and Legal Analysis explaining the reasons for the 

decision. (Compl. at 33-41.) The deadline in 52 U.S.C. § 30109(a)(8)(B) for filing challenges to 

FEC dismissals is 60 days. Plaintiff’s Complaint was filed on April 25, 2017, 62 days after the 

Commission’s February 22 dismissal. As a result, Plaintiff failed to file his Complaint on a 

timely basis. 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 16 of 33
8

The Court of Appeals has held that the deadline in section 30109(a)(8)(B) is 

“jurisdictional and unalterable.” Carter/Mondale Presidential Comm. v. FEC, 711 F.2d 279, 283 

(D.C. Cir. 1983), cited in NRA v. FEC, 854 F.2d 1330, 1334 (D.C. Cir. 1988). Thus, the failure 

to file complaints in the district court within the sixty-day period “divests the district court of 

jurisdiction.” Jordan v. FEC, 68 F.3d 518, 519 (D.C. Cir. 1995); see Spannaus v. FEC, 990 

F.2d. 643, 644 (D.C. Cir. 1993) (“[T]his court has declared mandatory, i.e., ‘jurisdictional and 

unalterable,’ statutes that fix time for seeking judicial review.”). Moreover, although plaintiff 

appears to believe that the operative dismissal date is the date of the FEC staff’s notice to him or 

his receipt of that notice (see Compl. at 10 (alleging that the dismissal occurred on March 3 or 7, 

2017)), it is well-established that the time period begins on the date of the Commission’s vote to 

dismiss, not the date the notification is sent by the FEC or received by the complainant. The 

Court of Appeals has specifically noted that “[Plaintiff] cannot save his case on the ground that 

the ‘date of dismissal’ in [52 U.S.C. § 30109(a)(8)(B)] is the date of the letter from the 

Commission’s general counsel informing him of the Commission’s vote, rather than the date of 

the vote.” Jordan, 68 F.3d at 519. As the court concluded, “the ‘date of dismissal’ is the date of 

the Commission’s vote.” Id. Here, that dismissal occurred on February 22, 2017.

Plaintiff failed to meet the “jurisdictional and unalterable” sixty-day deadline to file his 

Complaint. Because the untimeliness of the filing divests this Court of subject matter 

jurisdiction, this case must be dismissed with prejudice. 

B. Plaintiff Lacks Article III Standing to Bring This Suit

1. Standing Requires a Concrete and Particularized Injury

Plaintiff bears the burden of establishing this Court’s subject matter jurisdiction, 

including showing that he has standing. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015), 

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9

cert. denied, 136 S. Ct. 900 (2016). To survive the FEC’s motion to dismiss, Nguyen’s

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim [of standing] 

that is plausible on its face.’” Id., 797 F.3d at 19 (alteration in original) (quoting Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)). “[I]t is the burden of the party who seeks the exercise of 

jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to 

invoke judicial resolution of the dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 

(1990) (citations and internal quotation marks omitted). A plaintiff “must allege in his pleading 

the facts essential to show jurisdiction,” McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 

U.S. 178, 189 (1936), and “‘the necessary factual predicate may not be gleaned from the briefs 

and arguments,’” FW/PBS, 493 U.S. at 235 (citation omitted). However, this Court “may look 

beyond the allegations contained in the complaint” to “materials outside the pleadings” to 

determine whether plaintiffs can carry their burden of proving they have standing. Flores ex rel. 

J.F. v. District of Columbia, 437 F. Supp. 2d 22, 28-29 (D.D.C. 2006) (internal quotation marks 

omitted). 

In general, to demonstrate Article III standing a plaintiff must establish that: “(1) [he] has 

suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not 

conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the 

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

528 U.S. 167, 180-181 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561 (1992)).

Particularized means that “the injury must affect the plaintiff in a personal and individual way.” 

Lujan v. Defenders of Wildlife, 504 U.S. at 560 n.1. In addition, when, as here, “the plaintiff is 

not himself the object of the government action or inaction he challenges, standing is not 

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10

precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Id. at 562 (citation 

omitted). Accord Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997). Thus, courts 

“may not entertain suits alleging generalized grievances that agencies have failed to adhere to the 

law.” Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 415 (D.C. Cir. 1994).

2. Nguyen’s Desire to Compel the FEC to “Get the Bad Guys” Is Not 

a Legally Cognizable Injury

This Court lacks jurisdiction over plaintiff’s claims because Nguyen cannot demonstrate 

that he has Article III standing. Nguyen’s Complaint shows that he disagrees with the 

Commission’s finding of no reason to believe that the respondents violated FECA and its 

decision not to proceed with an investigation. But the FEC’s dismissal caused no “concrete and 

particularized” injury to Nguyen. Friends of the Earth, 528 U.S. at 180-181. 

Plaintiff seeks, in essence, to compel the FEC to enforce the law against respondents. But 

“[w]hile ‘Congress can create a legal right . . . the interference with which will create an Article 

III injury,’ . . . Congress cannot . . . create standing by conferring ‘upon all persons . . . an 

abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures 

required by law.’” Common Cause, 108 F.3d at 418 (citations omitted) (quoting Lujan, 504 U.S. 

at 573). And the D.C. Circuit has explicitly refused “[t]o hold that a plaintiff can establish injury 

in fact merely by alleging that he has been deprived of the knowledge as to whether a violation 

of [FECA] has occurred.” Id. at 418; see id. (explaining that such a holding “would be 

tantamount to recognizing a justiciable interest in the enforcement of the law”). Courts have 

repeatedly emphasized that “an injury that occurs when a person is deprived of information that a 

law has been violated” is not legally cognizable. Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 

41, 46 (D.D.C. 2003); see Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.D.C. 2001) (holding that 

plaintiffs lacked standing to seek a legal determination that certain transactions constitute 

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11

coordinated expenditures); Vroom v. FEC, 951 F. Supp. 2d 175, 178-79 (D.D.C. 2013) (holding 

that plaintiff lacked standing to seek a legal determination that certain political committees were 

affiliated). As this Court explained in Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 148

(D.D.C. 2005), “[n]othing in the FECA requires that information concerning a violation of the 

Act as such be disclosed to the public.” In sum, what plaintiff “desires is for the Commission to 

‘get the bad guys,’ rather than disclose information. [Plaintiff] has no standing to sue for such 

relief.” Common Cause, 108 F.3d at 418. 

In this case, Nguyen makes many claims regarding alleged unlawful acts by HRV PAC, 

Viet Tan, and others (Compl. at 10-31), but these allegations are insufficient to give Nguyen 

standing to pursue FECA claims because none show concrete and particularized harm to him. 

Nguyen has demonstrated no cognizable legal injury from a lack of law enforcement against the 

respondent entities. What he seeks, in essence, is merely “a legal conclusion that carries certain 

law enforcement consequences” for others. Wertheimer, 268 F.3d at 1075. 

Courts have in limited circumstances found informational standing to challenge FEC 

dismissals under 52 U.S.C. § 30109(a)(8), but plaintiff’s conclusory allegations are insufficient 

to make the required showing. An injury for purposes of Article III standing can arise from a 

statute that has “‘explicitly created a right to information.’” Am. Farm Bureau v. EPA, 121 F.

Supp. 2d 84, 97 (D.D.C. 2000) (quoting Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 

(D.C. Cir. 1994)). “For a plaintiff to successfully claim standing based on an informational 

injury, he must allege that he is directly deprived of information that must be disclosed under a 

statute.” Citizens for Responsibility and Ethics in Wash. (“CREW”) v. U.S. Dep’t of the 

Treasury, IRS, 21 F. Supp. 3d 25, 32 (D.D.C. 2014). Moreover, the Supreme Court has 

explained that to constitute a legally cognizable injury for an action seeking review of an FEC 

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dismissal, the information of which plaintiff claims to have been deprived must be “directly 

related to voting.” Akins, 524 U.S. at 24-25. The D.C. Circuit has similarly noted that an alleged

informational injury is sufficiently particularized to create standing where plaintiffs have alleged 

that “voter[s] [were deprived of useful [political] information at the time” of voting, and the 

denied information is “useful in voting and required by Congress to be disclosed.” Common 

Cause, 108 F.3d at 418 (internal quotation marks and citation omitted). In addition, courts in this 

District have recognized that the sought-after information must “have a concrete effect on 

[plaintiff’s] voting,” i.e., that plaintiff must be a participant in political elections and campaigns. 

All. for Democracy v. FEC, 335 F. Supp. 2d 39, 48 (D.D.C. 2004) (emphasis added).

Nguyen cannot meet these standards. Nguyen’s court Complaint contains broad

assertions that appear designed to support a showing of informational injury, but he supplies no 

factual basis for those claims. (See Compl. at 3-5.) Nguyen asserts that “exercising his right to 

an informed vote” is harmed when contributions or independent expenditures are not properly 

reported, that he is a blogger who seeks to disseminate information publically about persons who 

violate FECA, and that his “core programmatic activities” are harmed when the FEC refuses to 

“properly administer” the Act. (Id. at 3-4). He also claims to pursue a wide range of policy 

goals related to the electoral process and government integrity. (Id.) However, Nguyen provides 

no evidentiary support for these conclusory claims about his own informational injury, and he 

never explains specifically how his right to cast an informed vote or his alleged blogging 

activities are currently hindered by the Commission’s dismissal of his administrative complaint. 

He makes no effort to show how the California-based HRV PAC’s alleged past activities could 

affect him or his future voting where he is registered in Texas. (Id. at 3.) He also never explains 

how he has any informational interests as a voter regarding former California candidate Sanchez, 

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who has now left federal office and is no longer a federal candidate. Nguyen did allege potential 

reporting omissions by HRV PAC (id. at 40-41), but again there is no showing of how this 

affects him in any tangible or specific way. Nguyen clearly has a strong desire for law 

enforcement action against dealings of the Viet Tan, but that “generalized” desire to see the law 

enforced, even as to disclosure rules, is not sufficient to constitute an informational injury. He 

fails to show how any of the alleged deprivations of information harmed his own ability to vote, 

and his effort to have the Commission “get the bad guys” does not provide a basis for standing. 

Common Cause, 108 F.3d at 418 (internal quotation marks and citation omitted); All. for 

Democracy, 362 F. Supp. 2d at 148.

In addition, Nguyen plainly has no standing to pursue the challenge he purports to 

include as to the FEC’s regulation regarding disclosure of independent expenditures. Plaintiff’s 

complaint states that “[t]his action further challenges a regulation promulgated by the FEC, 11 

C.F.R. §109.10(e)(1)(vi), as FEC’s response is arbitrary, capricious, and in violation of 52 

U.S.C. § 30109(a)(8)(C) and 5 U.S.C. §706(2) because it is inconsistent with a provision of the 

FECA, 52 U.S.C. § 30104(c).” (Compl. at 2.) But Nguyen fails to provide any elaboration of 

this apparent challenge to an FEC regulation governing disclosure of independent expenditures. 

In any event, he has no standing to pursue such a challenge because there was no allegation of a 

violation of any restrictions relating to independent expenditures in his administrative complaint, 

nor was any considered by the FEC in its evaluation of the matter. Nguyen can show no injury.

In sum, Nguyen has failed to meet his burden to allege a threat of harm stemming from a 

violation of FECA that is “concrete and particularized.” Lujan, 504 U.S. at 560. This case 

should therefore be dismissed for a lack of Article III standing. 

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III. THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(5) 

BECAUSE PLAINTIFF FAILED TO PERFECT SERVICE 

The Commission also moves to dismiss this action pursuant to Federal Rule of Civil 

Procedure 12(b)(5) because of plaintiff’s multiple failures to perfect service of the summons and 

complaint. Specifically, plaintiff failed to comply with Rule 4(i)’s requirement that he serve the 

United States Attorney and the U.S. Attorney General, Rule 4(c)’s requirement that service be 

made by a person who is not a party to the litigation, and Rule 4(m)’s requirement that proper 

service occur within ninety days of the filing of the complaint. Despite these failures, plaintiff 

has filed misguided motions for Entry of Default and for Default Judgment. See supra p. 2.

Whenever questions are raised regarding the service of process, “the plaintiff has the 

burden of establishing the validity of service of process; to do so [a plaintiff] must demonstrate 

that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any 

other applicable provision of law.” Salmeron v. District of Columbia, 113 F. Supp. 3d 263, 267 

(D.D.C. 2015) (alteration in original and internal quotations omitted); Candido v. District of 

Columbia, 242 F.R.D. 151, 159 (D.D.C. 2007). Indeed, “‘federal courts lack the power to assert 

personal jurisdiction over a defendant ‘unless the procedural requirements of effective service of 

process are satisfied.’” Salmeron, 113 F. Supp. 3d at 266 (citation omitted). In fact, insufficient 

service of process imposes no obligation on the government to respond to a complaint. Darby v. 

McDonald, Secretary, U.S. Dept. of Veterans Affairs, 307 F.R.D. 254, 257 (D.D.C. 2014) (entry 

of default vacated because of improper service). “Service is therefore not only a means of 

notifying a defendant of the commencement of an action against him, but a ritual that marks the 

court’s assertion of jurisdiction over the lawsuit.” Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir.

2012) (internal quotations omitted). 

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Plaintiff failed to comply with Rule 4(i)(1) by neglecting to serve a copy of the summons 

and complaint on the United States Attorney for the District of Columbia or the Attorney 

General of the United States. Under this Rule, “service on the United States requires service on 

the Attorney General, the U.S. Attorney, and the agency whose action is at issue ... and the 

United States is ‘not served’ until and unless all three entities are served.” Koerner v. United 

States, 246 F.R.D. 45, 48 (D.D.C. 2007) (citation omitted) (emphasis added). Here, Nguyen has 

not even requested that a summons be issued to either of the two Department of Justice entities. 

(See Docket No. 2.) And no return of service for either entity appeared on the docket within the 

prescribed ninety days following the filing of the Complaint.

Moreover, Nguyen violated Rule 4(c)(2), which requires that service of the summons to 

be made by a person who is “not a party” to the case. This rule is not limited to personal service 

of a summons; “a plaintiff may not effect service by mailing a copy of the summons and 

complaint herself.” Ojelade v. Unity Health Care Inc., 962 F. Supp. 2d 258, 262 (D.D.C. 2013)

(emphasis added); see Judd v. FCC, 276 F.R.D. 1, 6 (D.D.C. 2011); Olson v. FEC, 256 F.R.D. 8, 

10 (D.D.C. 2009). Although Nguyen failed to file a Proof of Service affidavit pursuant to Rule

4(l)(1), he did file a Notice of Summons Served (Docket No. 3), which attached the signed 

certified mail card and U.S.P.S. tracking material for the attempted service on the FEC. He 

attached these same materials to his improper Motion for Entry of Default (Docket No. 4). 

These filings indicate that Nguyen himself mailed the summons, since only his name appears on 

the tracking material. In addition, only his return address appears on the envelope received by 

the FEC. Because Nguyen tried to serve the FEC himself, he violated Rule 4(c)(2).

Finally, plaintiff failed to perfect service within the 90-day period required by Rule 4(m) 

because he failed to serve all the required entities within that period, which ended on July 14, 

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2017. Rule 4(m) does provide the Court with discretion to lengthen that time period, but plaintiff 

has the burden of showing good cause for a failure serve within the required time, and “[m]istake 

of counsel or ignorance of the rules of procedure usually does not suffice to establish good 

cause.” U.S. ex rel Cody v. Comput. Servs. Corp., 246 F.R.D. 22, 26 (D.D.C. 2007); Candido, 

242 F.R.D. at 160. Rather, plaintiff must offer something more than his own inaction, because 

good cause exists when “‘some outside factor ... rather than inadvertence or negligence, 

prevented service.’” Mann, 681 F.3d at 374 (citation omitted). In this case, there is no 

indication that plaintiff’s failure to effect proper service was the result of any outside factor. The 

case should be dismissed and Nguyen’s premature motion for default should be denied.

IV. THE COMPLAINT MUST BE DISMISSED UNDER RULE 12(b)(6) BECAUSE IT 

FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 

A. The Commission’s Dismissal of Plaintiff’s Administrative Complaint Was 

Reasonable Under the Highly Deferential Standard of Review

In the context of judicial review of final agency action, “[t]he entire case on review is a 

question of law, and only a question of law[,] [a]nd because a court can fully resolve any purely 

legal question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 

12(b)(6) stage.” Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 

1993). “[T]he sufficiency of the complaint is the question on the merits, and there is no real 

distinction in this context between the question presented on a 12(b)(6) motion and a motion for 

summary judgment.” Marshall Cty. Health Care Auth., 988 F.2d at 1226. The party challenging 

the agency action bears the burden of proof to show that it is entitled to relief. Lujan v. Nat’l 

Wildlife Fed’n, 497 U.S. 871, 884-85 (1990).

Under FECA, a court may set aside a Commission order dismissing an enforcement 

complaint only if it is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). This means that the 

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Commission’s decision to dismiss cannot be disturbed unless it was based on “an impermissible 

interpretation of the Act” or was otherwise “arbitrary or capricious, or an abuse of discretion.” 

Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). In other words, the Commission’s decision 

need only be “sufficiently reasonable to be accepted by a reviewing court.” Democratic 

Senatorial Campaign Comm., 454 U.S. at 39 (internal quotation marks omitted). The contrary to 

law standard is “[h]ighly deferential” to the Commission’s decision, and it “permits reversal only 

if the agency’s decision is not supported by substantial evidence, or the agency has made a clear 

error in judgment.” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (internal quotation 

marks omitted); see CREW v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“[J]udicial review of the 

Commission’s refusal to act on complaints is limited to correcting errors of law.”). 

Nguyen’s court Complaint alleges generally that the Commission’s dismissal of his 

administrative complaint was “based on unwarranted assumptions instead of thorough 

investigation” and that the agency “misconstrued the facts.” (Compl. at 10-11.) In support of 

these claims, he alleges past and present Viet Tan misdeeds (id. at 12-15), a resemblance 

between names appearing on Sanchez disclosure reports and the purported membership of Viet 

Tan (id. at 15-24), and a Sanchez fundraiser held on the SBTN premises (id. at 24-30). As 

explained below, none of these allegations establishes that the FEC’s dismissal was contrary to 

law. 

The Commission’s Factual and Legal Analysis in the administrative matter (Compl. at

34-41) demonstrates that each of Nguyen’s main claims was carefully considered and 

unanimously rejected as lacking a sufficient factual basis to support a finding of reason to 

believe any FECA violation had taken place. Specifically, the Commission evaluated “(1) 

potential corporate contributions from [SBTN] to the Sanchez Committee and HRV PAC, (2) 

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potential foreign national contributions to the Sanchez Committee, and (3) potential reporting 

omissions by HRV PAC.” (Id. at 35.) 

The Commission’s analysis addressed each of these issues in turn. With respect to the 

alleged corporate contributions from SBTN, the Commission evaluated the material provided by 

Nguyen and the respondents. It concluded that there was insufficient evidence that SBTN was 

even involved in a 2016 fundraising event Nguyen identified, and that as to a 2015 event he 

cited, available evidence indicated that HRV PAC had paid Saigon Broadcasting for the use of 

its facilities and air time, which does not constitute an unlawful in-kind contribution. (See

Compl. at 35-38.) The FEC also evaluated allegations that SBTN had unlawfully established and 

funded HRV PAC, but the agency found no evidence to support that conclusion. (Id. at 38.) 

With respect to the alleged foreign national contributions to the Sanchez Committee, the FEC 

found no facts to support the allegations; it noted that Nguyen had failed to submit any evidence 

showing that the persons he named were actually foreign nationals, and that all the contributors 

he referenced had U.S. addresses. (Id. at 39-40.) Finally, with respect to Nguyen’s allegations 

that HRV PAC had failed to report all cash contributions, the FEC evaluated materials he 

provided but it found them “mostly incomprehensible.” (Id. at 40-41.) Regarding a 

supplemental submission from Nguyen making similar claims as to a 2013 HRV PAC 

fundraising event, the FEC evaluated the response from HRV PAC and even conducted a sample 

review, comparing the contributors Nguyen identified with HRV PAC’s FEC reports, but that 

analysis showed that the contributions were reported in accordance with FECA. (Id.) 

Nguyen’s Complaint provides no basis to conclude that any of these determinations were 

contrary to law under section 30109(a)(8). Nguyen essentially restates his allegations and 

supporting evidence, but he makes no showing that the Commission’s decisions regarding the 

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alleged corporation contributions, foreign national contributions, or alleged unreported cash 

contributions were erroneous based on the materials it had before it at the time. Nguyen 

disagrees with the Commission’s conclusions, but that is not enough. He identifies no “clear 

error in judgment,” nor does he show that the agency’s factual determinations were unsupported

or an abuse of its broad discretion, based on the deferential standard of judicial review applicable 

to such determinations. Hagelin, 411 F.3d at 242; see Democratic Senatorial Campaign Comm., 

454 U.S. at 37; CREW, 475 F.3d at 340. In sum, the FEC had a reasonable basis for its 

unanimous decision in light of plaintiff’s inadequate factual allegations. 

To the extent Nguyen contends that the FEC identified as a respondent an entity that was 

not the “Viet Tan” he meant in his administrative complaint, specifically Viet Tan North 

America Corporation (Compl. at 11), he cannot show the Commission acted unreasonably

because he only asked that the agency investigate HRV PAC.2

 See 52 U.S.C. § 30109(a)(1) 

(requiring the FEC to notify only those “alleged in the complaint to have committed [] a 

violation”). Nguyen can hardly be heard to complain that the agency acted contrary to law 

because it failed to locate an entity that he had not even asked the agency to investigate. The 

agency’s choice to name additional respondents as part of its review of the matter fails to provide 

grounds for a complainant to challenge the efficacy of any notice provided to respondents 

identified by the Commission. And even if any error was identified, it would be a harmless one 

that would not justify overturning the FEC’s decision in this matter. See Nader v. FEC, 823 F. 

 2 See Admin. Compl. at 1, 16, Human Rights for Vietnam Political Action Comm., FEC 

MUR 7059, https://www.fec.gov/files/legal/murs/current/118033.pdf (requesting investigation of 

“alleged improprieties by” HRV PAC and of various “allegations against HRVN PAC”) 

(emphasis added). This Court may consider the administrative complaint in evaluating this 

motion to dismiss because it is a document to which plaintiff’s court complaint refers. “In 

determining whether a complaint states a claim, the court may consider the facts alleged in the 

complaint, documents attached thereto or incorporated therein, and matters of which it may take 

judicial notice.” Bank of N.Y. Mellon Trust Co. v. Henderson, 862 F.3d 29, 33 (D.C. Cir. 2017). 

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Supp. 2d 53, 67 (D.D.C. 2011); FEC v. Club for Growth, 432 F. Supp. 2d 87, 91 (D.D.C. 2006). 

In Nader, the Commission did not name as respondents all of the more than 50 entities that an

administrative complaint had alleged violated FECA. The district court found that the failure to 

do so was a violation of section’s 30109(a)(1)’s notification requirement, but the court found it to 

be harmless error: “The Court finds no reason to believe that had the FEC properly notified all 

alleged ‘respondents,’ it would have reached a different decision in this case.” Nader, 823 F. 

Supp. 2d at 67-68. The same would be true here, even if the FEC had any obligation to name a 

different “Viet Tan” entity. Nguyen provides no reason to conclude that obtaining a response 

from a different Viet Tan entity would have changed the agency’s decision to dismiss his 

complaint based on inadequate evidence of FECA violations. Thus, any mistake would be at 

most harmless error. 

The Commission’s decision to dismiss plaintiff’s administrative complaint was 

reasonable and well within its discretion, so plaintiff has failed to state a claim.

B. The Administrative Procedure Act Provides No Basis for Review Here, 

Where FECA Provides an Adequate Judicial Review Mechanism

Dismissal of a court complaint is appropriate where, accepting the factual allegations in 

the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint 

fails as a matter of law to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); 

Ashcroft v. Iqbal, 556 U.S. at 678 . A claim must be dismissed “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 558 (2007). 

Nguyen purports to rely on the Administrative Procedure Act (“APA”) as a separate and 

independent basis for challenging the Commission’s dismissal of his administrative complaint. 

He asserts that the “FEC’s dismissal is arbitrary, capricious, and contrary to law, in violation of 

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52 U.S.C. § 30109(a)(8)(c)(C) and 5 U.S.C. § 706(2).” (Compl. at 30.) However, no separate 

APA claim exists where a statute like FECA provides an adequate judicial review mechanism. 

52 U.S.C. § 30109(a)(8) provides the exclusive mechanism for judicial review of any 

FEC dismissal of an administrative complaint. In addressing such issues, courts examine the 

relevant statute’s language, structure, and legislative history. See Block v. Cmty. Nutrition Inst., 

467 U.S. 340, 349 (1984) (explaining that a “detailed mechanism for judicial consideration of 

particular issues at the behest of particular persons” may demonstrate that other forms of judicial 

review are “impliedly precluded”); Klayman v. Obama, 957 F. Supp. 2d 1, 20 (D.D.C. 2013) 

(considering the express language, structure, objectives, and legislative history of the Foreign 

Intelligence Surveillance Act and concluding that the statute precluded plaintiffs’ claim for 

judicial review pursuant to the APA).

In section 30109(a)(8), Congress delineated the scope of judicial review available in an 

action challenging an FEC dismissal of an administrative complaint. The statute specifies that 

(a) the statutory cause of action is available only to a complainant who is “aggrieved by an order 

of the Commission dismissing a complaint filed by such party,” (b) any petition for judicial 

review of an FEC dismissal must be filed (i) in the United States District Court for the District of 

Columbia and (ii) “within 60 days after the date of the dismissal,” and (c) the available relief is a 

judicial declaration that “the dismissal of the complaint . . . is contrary to law” and an order 

“direct[ing] the Commission to conform with such declaration.” 52 U.S.C. § 30109(a)(8). 

FECA’s “detailed mechanism for judicial consideration of particular issues at the behest of 

particular persons” clearly precludes other forms of judicial review, including review under the 

APA. See Block, 467 U.S. at 349. Where, as here, Congress has “fashion[ed] . . . an explicit 

provision for judicial review” of certain agency action and has “limit[ed] the time to raise such a 

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22

challenge,” the Court of Appeals for the D.C. Circuit has found that “it is ‘fairly discernible’ that 

Congress intended that particular review provision to be exclusive.” Coal River Energy, LLC v. 

Jewell, 751 F.3d 659, 664 (D.C. Cir. 2014); see Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 

2009) (“‘Congress did not intend to permit a litigant challenging an administrative denial . . . to 

utilize simultaneously both [the review provision] and the APA.’”) (alteration in original).

Judicial review of agency action under the APA is available only where there is “no other 

adequate remedy.” 5 U.S.C. § 704. “Congress did not intend the general grant of review in the 

APA to duplicate existing procedures for review of agency action.” Bowen v. Massachusetts,

487 U.S. 879, 903 (1988)). Thus, the APA “‘does not provide additional judicial remedies in 

situations where the Congress has provided special and adequate review procedures.’” Id.

(footnote omitted). 

Every court that has considered the nature of the judicial-review procedures in section 

30109(a)(8), including the Court of Appeals for the D.C. Circuit, has found that those FECA

procedures are exclusive. In fact, the D.C. Circuit stated that section 30109(a)(8) was “as 

specific a mandate as one can imagine” and accordingly concluded that “the procedures it sets 

forth — procedures purposely designed to ensure fairness not only to complainants but also to 

respondents — must be followed before a court may intervene.” Perot v. FEC, 97 F.3d at 559. 

The Court of Appeals for the Fifth Circuit similarly found “substantial evidence that Congress 

set forth the exclusive means for judicial review under [FECA]” in section 30109(a)(8). 

Stockman v. FEC, 138 F.3d 144, 156 (5th Cir. 1998). More recently, courts in this District have 

reaffirmed that the review procedure in section 30109(a)(8) precludes an APA claim for 

dismissal of an administrative complaint. See CREW v. FEC, No. 16-259, 2017 WL 1080920 *8 

(D.D.C. March 3, 2017) (FECA provides an adequate remedy so there is no parallel claim for 

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 31 of 33
23

relief under the APA); CREW v. FEC, 164 F. Supp. 3d 113, 120 (D.D.C. 2015) (“This [section 

30109(a)(8) judicial review] precludes review of FEC enforcement decisions under the APA.”).

3

Because section 30109(a)(8) provides the exclusive mechanism for challenging the 

Commission’s dismissal of plaintiff’s administrative complaint, the portions of his court 

Complaint that purport to rely on the APA fail to state a claim and should be dismissed.

V. CONCLUSION

For all the foregoing reasons, the Court should dismiss plaintiff’s Complaint. 

Respectfully submitted,

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

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley /s/ Benjamin A. Streeter III

Associate General Counsel Benjamin A. Streeter IIII

kdeeley@fec.gov Attorney

bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

August 30, 2017 Washington, DC 20463

(202) 694-165

 3 By contrast, FECA does not provide a mechanism for judicial review of the FEC’s 

formal rulemaking actions, 52 U.S.C. § 30107(a)(8), and such rulemaking actions, unlike FEC 

administrative dismissals, are subject to APA review. See, e.g., Shays v. FEC, 414 F.3d 76, 96 

(D.C. Cir. 2005) (reviewing FEC regulations promulgated pursuant to statutory authority). Here, 

although the Complaint purports to include a challenge to an FEC regulation regarding 

independent expenditures, Nguyen lacks standing to pursue it. See supra p. 13.

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 32 of 33
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

TU NGUYEN. )

)

Plaintiff, ) Civ. No. 17-mc-1048 (RBW)

)

v. )

) [PROPOSED] ORDER

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

[PROPOSED] ORDER

Upon consideration of the defendant Federal Election Commission’s Motion to Dismiss 

and any opposition filed by plaintiff Tu Nguyen, it is hereby

ORDERED that the Federal Election Commission’s Motion to Dismiss is GRANTED. 

Nguyen’s complaint petitioning for review is DISMISSED WITH PREJUDICE.

Dated: _______________, 2017 ____________________________

The Honorable Reggie B. Walton 

United States District Judge

Case 1:17-mc-01048-RBW Document 9 Filed 08/30/17 Page 33 of 33