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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, )

)

v. ) Case No. 15-cv-1397 (TSC)

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FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

ORDER

On February 1, 2017, this court granted Plaintiffs’ motion for summary judgment and 

held that the FEC’s reason-to-believe determinations and subsequent dismissals in Matters Under 

Review 6869 and 6942 were arbitrary and capricious and contrary to law. On February 6, 2017, 

the FEC moved for clarification and/or reconsideration of this court’s Order. (ECF No. 62). 

Three days later, Plaintiffs also filed a motion for clarification and partial opposition to the 

FEC’s motion. (ECF No. 63). As explained further below, the FEC’s motion is GRANTED IN 

PART and DENIED IN PART, and Plaintiffs’ motion is GRANTED.

Under the Federal Elections Campaign Act, a court “may declare that the dismissal of the 

complaint . . . is contrary to law, and may direct the Commission to conform with such 

declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). Pursuant to this provision of the Act, 

this court ordered the FEC to “reconsider the evidence and allegations and issue a new decision 

consistent with this Opinion within 30 days.” (ECF No. 61). The FEC now seeks clarification as 

to the scope of their obligations on remand. 

Plaintiffs brought suit after the FEC determined with regard to two complaints that there 

was no reason to believe that respondents had violated the Act. This court found that in making 

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these reason-to-believe determinations the FEC acted arbitrarily and capriciously and contrary to 

law by failing to notify respondents, failing to consider evidence, failing to articulate its legal 

analysis, and failing to engage in reasoned decision-making with respect to its conclusion that 

the CPD’s polling criterion was objective. It is these determinations that the FEC must now 

revisit on remand. Therefore, the court clarifies that its February 1 Order requires the agency to 

notify respondents, consider their written responses, consider the full evidence submitted by 

Plaintiffs, determine whether there is reason to believe any of the respondents has violated the 

Act, and issue a new statement of reasons in support of that determination. 

The FEC additionally seeks reconsideration with respect to the deadline by which they 

must have complied with this court’s remand order. Congress itself set a firm and expeditious 

deadline for reevaluating a dismissed complaint on remand: thirty days. 52 U.S.C. 

§ 30109(a)(8)(C). The FEC requests additional time to make its reason-to-believe 

determinations because it must provide respondents with at least fifteen days to submit written 

responses to the allegations. The FEC further points out that reconsidering the complaint and 

over 700 pages of exhibits from Plaintiffs “takes some time.” The court is perplexed by the 

FEC’s assertion that it needs additional time to review the Plaintiffs’ submissions given its 

earlier representations to the court that it had already carefully analyzed this evidence before 

dismissing Plaintiffs’ administrative complaints. Nevertheless, the court will grant the FEC’s 

request for additional time. 

In the court’s view, thirty additional days is more than sufficient to notify respondents, 

review their written responses, analyze the evidentiary record, and make a reason-to-believe 

determination on MURs 6869 and 6942. The FEC is therefore ORDERED to complete these 

steps of the administrative process within sixty days from the court’s initial Order, or by April 3, 

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2017. If the FEC decides to file an appeal before that date, it remains free to seek a stay as 

needed.

The FEC additionally raised the concern that were it to find that there is reason to believe 

one or more respondents violated the Act, it would not be permitted to disclose such a finding 

publicly due to the Act’s requirements. See 52 U.S.C. § 30109(a)(12)(A) (“Any notification or 

investigation made under this section shall not be made public by the Commission or by any 

person without the written consent of the person receiving such notification or the person with 

respect to whom such investigation is made.”). However, there are numerous mechanisms by 

which the FEC may notify the court and the Plaintiffs of its findings while adhering to the Act’s 

requirement that an investigation “shall not be made public,” such as requesting a protective 

order before filing a notice with this court. 

Finally, Plaintiffs request that the court expressly retain jurisdiction over this matter

pending the remand to the FEC, in order to allow them to bring an additional challenge if 

necessary. Because any further claims Plaintiffs bring regarding the FEC’s reconsideration on 

remand of MURs 6869 and 6942 will be closely related to the issues already analyzed in this 

case, the court will retain jurisdiction pending remand. See Cobell v. Norton, 240 F.3d 1081, 

1109 (D.C. Cir. 2001) (district court may retain jurisdiction pending agency remand); Banner 

Health v. Burwell, 126 F. Supp. 3d 28, 105 (D.D.C. 2015) (same). 

Date: February 10, 2017

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge 

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