UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPRESENTATIVE TED LIEU, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-2201 (EGS) 

 ) 

 v. ) 

 ) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF MOTION TO 

DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF JURISDICTION 

 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

September 5, 2017

Jacob S. Siler (D.C. Bar No. 1003383) 

Attorney 

jsiler@fec.gov 

Sana Chaudhry 

Attorney 

schaudhry@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

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i 

TABLE OF CONTENTS 

Page 

I. INTRODUCTION .........................................................................................................1

II. THE CASE IS MOOT AND NO EXCEPTION TO THE MOOTNESS 

DOCTRINE APPLIES...................................................................................................2

A. Plaintiffs Are Not Entitled to Any Relief for Their Delay Claims ....................3

B. Plaintiffs Have Failed to Establish That Their Delay Claims Qualify for an 

Exception to Mootness .......................................................................................5

1. The Action Challenged by a FECA Delay Lawsuit Is Not Too 

Short to Be Fully Litigated ....................................................................5

2. There Is No Reasonable Expectation That the Same Plaintiffs 

Would Again Be Subjected to the Same Action ....................................8

III. MOOTNESS IS A THRESHOLD JURISDICTIONAL QUESTION THAT 

SHOULD BE DECIDED FIRST .................................................................................10

IV. EVEN IF THE COURT IS NOT REQUIRED TO CONSIDER THE 

COMMISSION’S JURISDICTIONAL ARGUMENTS BEFORE PLAINTIFFS’ 

MOTION TO AMEND, THE FUTILITY OF AMENDMENT HERE MEANS 

THAT THE COURT MUST STILL RULE ON THE MOTION TO DISMISS ........16

A. Plaintiffs Offer No Valid Reason Why the Futility Inquiry Should Not 

Be Decided at This Stage .................................................................................16

B. Plaintiffs’ Choice to Bring This Suit Pursuant to 52 U.S.C. § 30109(a)(8) 

Led to the Highly Deferential Standard of Review That Applies Here ...........18

C. This Court Cannot Reconsider SpeechNow .....................................................21

D. Even If SpeechNow Were Wrongly Decided, the Commission Acted 

Reasonably in Following its Prior Advisory Opinion......................................22

V. CONCLUSION ............................................................................................................24

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TABLE OF AUTHORITIES 

Cases Page

21st Century Telesis Joint Venture v. FCC, 318 F.3d 192 (D.C. Cir. 2003) ...........................10

ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44 

(1st Cir. 2013) ....................................................................................................................10

Adams v. FedEx Ground Package Sys., Inc., No. 11-cv-2333, 

2013 WL 61448 (D. Colo. Jan. 4, 2013) ............................................................................17

Adams v. Suozzi, 393 F. Supp. 2d 175 (E.D.N.Y. 2005) .........................................................21

Aftergood v. CIA, 225 F. Supp. 2d 27 (D.D.C. 2002) ..............................................................14

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ........................................................................8

*All. for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004) ......................1, 2, 4, 5, 6, 7, 9 

Am. Wild Horse Pres. Campaign v. Salazar, 800 F. Supp. 2d 270 

(D.D.C. 2011) ..............................................................................................................10, 11

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ...............................................11

Banner Health v. Burwell, 55 F. Supp. 3d 1 (D.D.C. 2014) ..............................................16, 17

Brown v. Board of Educ., 347 U.S. 483 (1954) .......................................................................20

Bryan v. Austin, 354 U.S. 933 (1957) ......................................................................................13

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................................21

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) .....................................19

Citizens for Responsibility & Ethics in Wash. v. FEC, 236 F. Supp. 3d 378 

(D.D.C. 2017) ....................................................................................................................19

City of Hous. v. Dep’t of HUD, 24 F.3d 1421 (D.C. Cir. 1994) ................................................4

Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) ......................5

Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 1998) ..................6

Democratic Senatorial Campaign Comm. v. FEC, Civ. No. 95-0349 

(D.D.C. April 17, 1996) .......................................................................................................9

Deya v. Hiawatha Hosp. Ass’n, No. 10-cv-2263, 2011 WL 1698774 

(D. Kan. May 4, 2011) .......................................................................................................17

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 3 of 30
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Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412 (1972) ....................13

Dynalantic Corp. v. Department of Defense, 115 F.3d 1012 (D.C. Cir. 1997) .......................12

FEC v. Akins, 524 U.S. 11 (1998) ......................................................................................19, 20

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ..................................20

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ...........................................................................8

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ................................................................6

Fed. Express Corp. v. Air Line Pilots Ass’n, 67 F.3d 961 (D.C. Cir. 1995) ..............................4

Foman v. Davis, 371 U.S. 178 (1962) .....................................................................................18

Fox v. Bd. of Trs. of State Univ. of N.Y., 148 F.R.D. 474 (S.D.N.Y. 1993) ............................10

Grant Med. Ctr. v. Burwell, 204 F. Supp. 3d 68 (D.D.C. 2016)........................................20, 21

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

Heckler v. Chaney, 470 U.S. 821 (1985) ...........................................................................19, 20

Holland v. Nat’l Mining Ass’n, 309 F.3d 808 (D.C. Cir. 2002) ..............................................20

Honeywell Int’l, Inc. v. NRC, 628 F.3d 568 (D.C. Cir. 2010) ...................................................5

Honig v. Doe, 484 U.S. 305, 318 (1988) .............................................................................9, 10

In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213 (D.C. Cir. 2010) .............................17

In re Nat. Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396 

(D.C. Cir. Oct. 24, 1984) .....................................................................................................6

Johnson v. FCC, 829 F.2d 157 (D.C. Cir. 1987) .......................................................................7

Judicial Watch, Inc. v. DOE, 191 F. Supp. 2d 138 (D.D.C. 2002) ..........................................14

Kokesh v. SEC, 137 S. Ct. 1635 (2017) ...................................................................................24

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..................................................................20

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ..................................................................7

LaRoque v. Holder, 650 F.3d 777 (D.C. Cir. 2011) ..................................................................7

LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994) ..............................................................23, 24 

Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................17

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 4 of 30
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Matthew Bender & Co. v. W. Publ’g Co., No. 94 CIV. 0589 (JSM), 1995 WL 702389 

(S.D.N.Y. Nov. 28, 1995) ............................................................................................14, 17

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................22

Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009) ...................................................................7

Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997) ....................3

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) .........23, 24

People for the Ethical Treatment of Animals, Inc. v. U.S. Fish & Wildlife Serv., 

59 F. Supp. 3d 91 (D.D.C. 2014) .........................................................................................5 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ..............................................................................4

Phillips v. McLaughlin, 854 F.2d 673 (4th Cir. 1988) .............................................................13

Preiser v. Newkirk, 422 U.S. 395 (1975) ...................................................................................3

Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981) .........................................................................14

Republican Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016) ......................................22

Schmidt v. United States, 749 F.3d 1064 (D.C. Cir. 2014) ......................................................13

SEC v. Bilzerian, No. 11-5337, 2012 WL 1922465 (D.C. Cir. May 11, 2012) .........................5

Shays v. FEC, 424 F. Supp. 2d 100 (D.D.C. 2006) ...................................................................7 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .............................................................................7

Shows v. Harber, 575 F.2d 1253 (8th Cir. 1978) .....................................................................14

Sierra Club v. Watkins, 808 F. Supp. 852 (D.D.C. 1991)........................................................13

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...................................1, 2, 18, 21, 22 

Spencer v. Kemna, 523 U.S. 1 (1998) ........................................................................................5 

Ulico Cas. Co. v. E.W. Blanch Co., 200 F.R.D. 3 (D.D.C. 2001) ...........................................11 

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) .....................................................23

United States v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015) ..............................................22

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ........................................................13

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010) ......................................................................20

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 5 of 30
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U.S. Dep’t of Energy v. Ohio, 503 U.S. 607 (1992) ................................................................23

Worth v. Jackson, 483 F. Supp. 2d 1 (D.D.C. 2004) ...............................................................13 

Yellow Taxi Co. of Minneapolis v. NLRB, 721 F.2d 366 (D.C. Cir. 1983) ..............................21 

Statutes and Regulations 

5 U.S.C. § 706(1) .......................................................................................................................2 

52 U.S.C. § 30108(c)(2) ...........................................................................................................23 

52 U.S.C. § 30109(a)(8) .............................................................................................1, 2, 12, 19 

52 U.S.C. § 30109(a)(8)(A) ...................................................................................................2, 3 

52 U.S.C. § 30109(a)(8)(B) .....................................................................................................15 

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................4 

Other Authorities 

FEC Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269 (July 22, 2010) .........22 

Fed. R. Civ. P. 12(b)(1)..............................................................................................................1 

Fed. R. Civ. P. 15 .....................................................................................................................11 

3 James Wm. Moore et al., Moore’s Federal Practice ¶ 15.14[3] (3d ed. 1999) ....................14 

U.S. Const. art. III ......................................................................................................1, 2, 10, 11 

Webster’s Third New International Dictionary 2009 (1976) ...................................................23 

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I. INTRODUCTION 

As defendant Federal Election Commission (“FEC” or “Commission”) showed in the 

opening brief in support of its motion to dismiss (Docket No. 24), plaintiffs’ claims are moot and 

so the Court should dismiss them for lack of subject matter jurisdiction. See Fed. R. Civ. P. 

12(b)(1). This case sought relief under 52 U.S.C. § 30109(a)(8) for the FEC’s alleged failure to 

act on plaintiffs’ administrative complaint, but it became moot when the Commission completed 

its final action on that complaint. Because the FEC has already acted, there is no relief the Court 

could grant to redress plaintiffs’ alleged injury. Plaintiffs now argue that the “capable of 

repetition, yet evading review” exception to the mootness doctrine applies, but plaintiffs 

completely abandoned their delay claims in their proposed amended complaint. Instead, 

plaintiffs appear to ask this Court to maintain jurisdiction so they can assert entirely new claims 

based on the FEC’s dismissal of their administrative complaint. Plaintiffs have failed to show 

that the exception applies, as they rely on flawed arguments this Court has previously rejected in 

a similar case. See All. for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004). 

Because this lawsuit no longer presents a case or controversy that satisfies the 

requirements of Article III, the Court should dismiss plaintiffs’ complaint. Plaintiffs argue that 

the Court has discretion to defer ruling on the motion to dismiss until after it decides plaintiffs’ 

pending motion for leave to amend, but under the applicable case law, the Court lacks the power 

to allow an amendment when the entire case before it has become moot. 

In any event, there is no cause to delay a ruling on the FEC’s motion to dismiss, because 

plaintiffs’ proposed amendment is futile. All parties agree that the D.C. Circuit’s holding in 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), requires this Court to rule in the 

Commission’s favor on plaintiffs’ dismissal claim. Thus, denying plaintiffs’ motion to amend 

and granting the FEC’s motion to dismiss would advance judicial economy by eliminating the 

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need for the parties to engage in redundant summary judgment briefing. There would be no 

prejudice to plaintiffs: If the Court has jurisdiction to rule on the request to amend, plaintiffs can 

pursue an appeal from denial of leave to amend seeking to overturn SpeechNow. And none of 

plaintiffs’ arguments to this Court about judicial deference to Commission enforcement 

decisions or the validity of the underlying premises of SpeechNow present any reason to delay 

the inevitable. This case should be dismissed. 

II. THE CASE IS MOOT AND NO EXCEPTION TO THE MOOTNESS DOCTRINE 

APPLIES 

Plaintiffs’ judicial complaint asked the Court to declare that the Commission’s failure to 

act on their administrative complaint within 120 days was contrary to law under 52 U.S.C. § 

30109(a)(8)(A) and 5 U.S.C. § 706(1) and “to order the FEC to conform with [such] declaration 

within 30 days.” (Compl. ¶¶ 7, 84, 86 (Docket No. 1).) On May 25, 2017, the Commission 

dismissed plaintiffs’ administrative complaint, concluding the administrative matter. As the FEC 

explained in its opening brief, because the agency has now completed final action on plaintiffs’ 

administrative complaint, this lawsuit based on alleged delay no longer presents a live case or 

controversy that satisfies the requirements of Article III, and it should be dismissed as moot. 

(FEC’s Mem. in Supp. of its Mot. to Dismiss Pls.’ Compl. for Lack of Jurisdiction at 6-8 (Docket 

No. 24) (“Mot. to Dismiss”).) The FEC further explained that under the applicable case law, 

including this Court’s previous ruling in Alliance for Democracy, 335 F. Supp. 2d 39, the Court 

can no longer provide plaintiffs with any of the relief requested in their judicial complaint. 

In arguing to the contrary, plaintiffs fail to address the nature of relief that can be 

obtained for failure to act under 52 U.S.C. § 30109(a)(8) and misstate the purported injury they 

seek to redress. Remarkably, in over six pages of argument about mootness, plaintiffs do not 

once articulate the relief they continue to seek for their delay claims. (Pls.’ Opp’n to FEC’s Mot. 

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to Dismiss at 6-13 (Docket No. 29).) And while plaintiffs once allude to “a judicial declaration,” 

they do not state what they are asking this Court to declare. (Id. at 9.) In fact, plaintiffs propose 

to completely abandon their delay claims in their hoped-for amendments, explicitly seeking to 

“replac[e]” the delay claims with new dismissal claims. (See Mem. of P. & A. in Supp. of Pls.’ 

Mot. for Leave to File Am. Compl. at 2 (Docket No. 21-1) (“Mot. to Amend”); Proposed Am. 

Compl. (Docket No. 21-2).) Yet plaintiffs now attempt to backpedal by suggesting in their brief 

that there is continuing jurisdiction over the delay claims. They do so in order to persuade the 

Court to grant their pending motion for leave to amend, but if the Court allows plaintiffs to 

amend the complaint as they request, no delay claims will be before the Court. The Court should 

thus disregard plaintiffs’ hypothetical arguments regarding continuing claims they do not in fact 

intend to pursue. 

A. Plaintiffs Are Not Entitled to Any Relief for Their Delay Claims 

While plaintiffs did not receive their preferred outcome in the administrative matter, they 

did receive the outcome that a judgment from this Court in their favor would provide for a delay 

claim under 52 U.S.C. § 30109(a)(8)(A). Indeed, because the FEC has resolved the 

administrative matter, plaintiffs have received the only relief they could have obtained. 

Controlling law precludes any other injunctive or declaratory relief here. 

Federal courts have no “power to render advisory opinions [or] . . . decide questions that 

cannot affect the rights of litigants in the case before them.” Nat’l Black Police Ass’n v. District 

of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (alteration in original) (quoting Preiser v. 

Newkirk, 422 U.S. 395, 401 (1975)). Plaintiffs’ judicial complaint was brought under the 

provision in section 30109(a)(8) for limited judicial review of whether the FEC’s “failure to act” 

on an administrative complaint is “contrary to law.” The Commission, by determining that there 

was no reason to believe that the Federal Election Campaign Act (“FECA”) had been violated 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 9 of 30
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and closing the administrative file, eliminated any possibility of a failure to act that could support 

judicial relief. The D.C. Circuit has explained that “[w]hen the FEC’s failure to act is contrary to 

law, we have interpreted [52 U.S.C. § 30109(a)(8)(C)] to allow nothing more than an order 

requiring FEC action.” Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). But where the 

Commission has ended its administrative proceedings, “the order the Circuit court speaks of 

would be nothing more than an order directing the FEC to do what it has already done.” All. for 

Democracy, 335 F. Supp. 2d at 43. Plaintiffs are thus foreclosed from any further substantive 

relief under the statute. 

Plaintiffs are also precluded from seeking a declaratory judgment that the FEC acted 

unlawfully in delaying action on plaintiffs’ administrative complaint. “The [Constitution’s] 

requirement of a case or controversy is no less strict when a party is seeking a declaratory 

judgment than for any other relief.” Fed. Express Corp. v. Air Line Pilots Ass’n, 67 F.3d 961, 

963 (D.C. Cir. 1995). And “the mooting of the specific claim moots any claim for declaratory 

judgment that the specific action was unlawful.” City of Hous. v. Dep’t of HUD, 24 F.3d 1421, 

1429 (D.C. Cir. 1994). Here, as in Alliance for Democracy, plaintiffs’ complaint attacks a 

specific instance of alleged FEC inaction and not a particular policy of delay by the FEC.1

 See

335 F. Supp. 2d at 46. And similarly, because the FEC has resolved the administrative matter, 

plaintiffs’ request for declaratory relief is moot. Id. (“[A] declaratory judgment in this case 

would amount to nothing more than an advisory pronouncement that the FEC’s past conduct was 

somehow contrary to law”). Because federal courts “are not in the business of pronouncing that 

past actions which have no demonstrable continuing effect were right or wrong,” plaintiffs are 

 1

 While plaintiffs’ make some broad allegations of delay by the FEC in resolving other 

administrative complaints (see Pls.’Opp’n to Mot. to Dismiss at 9; Compl. ¶ 3), they have not 

brought — and do not seek to bring — a claim that the Commission has unlawfully delayed in its 

handling of any other, still-pending matter. 

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not entitled to a declaration that the FEC took too long in acting on their administrative 

complaint. Id. (citing Spencer v. Kemna, 523 U.S. 1, 18 (1998).) 

B. Plaintiffs Have Failed to Establish That Their Delay Claims Qualify for an 

Exception to Mootness 

Plaintiffs have failed to carry their burden of establishing that an exception to the 

mootness doctrine applies here. Although “‘[t]he initial heavy burden of establishing mootness 

lies with the party asserting a case is moot,’” it is “‘the opposing party [who] bears the burden of 

showing an exception applies.’” SEC v. Bilzerian, No. 11-5337, 2012 WL 1922465, at *1 (D.C. 

Cir. May 11, 2012) (alterations in original) (quoting Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 

576 (D.C. Cir. 2010)). Plaintiffs now argue that this case is not moot because it involves a 

controversy that is “capable of repetition, yet evading review.” Id. The parties agree on the two 

requirements that must be satisfied for this exception: (1) “the challenged action must be too 

short to be fully litigated prior to cessation or expiration”; and (2) there must be a “reasonable 

expectation that the same complaining party [will] be subject to the same action again.” 

Honeywell Int’l, Inc., 628 F.3d at 576 (alteration in original). However, plaintiffs misapply the 

standard for each requirement and misstate the injury their delay claims sought to redress. 

1. The Action Challenged by a FECA Delay Lawsuit Is Not Too Short to 

Be Fully Litigated 

While the D.C. Circuit employs a presumption that actions “of less than two years’ 

duration ordinarily evade review,” Honeywell Int’l, 628 F.3d at 576, the “Circuit also adds in an 

additional requirement . . . that ‘the short duration is typical of the challenged action.’” People 

for the Ethical Treatment of Animals, Inc. v. U.S. Fish & Wildlife Serv., 59 F. Supp. 3d 91, 97 

(D.D.C. 2014) (quoting Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. 

Cir. 2009) (emphasis added)). Plaintiffs have failed to satisfy this requirement. Indeed, this 

Court has previously found that “[c]ases brought under [52 U.S.C. § 30109(a)(8)] . . . do not 

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challenge activity that, by its very nature, is short in duration.” All. for Democracy, 335 F. Supp. 

2d at 44. In doing so, the Court recognized that the FEC’s administrative proceedings can 

reasonably take more than two years. Id. (citing In re Nat. Cong. Club, Nos. 84-5701, 84-5719, 

1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984)). And they do, as described for example in the 

very source upon which plaintiffs rely. (See Compl. ¶ 3 n.1 (linking to a statement of a 

Commissioner which describes how cases had been pending for more than three years from the 

time the General Counsel sent a recommendation to Commissioners).) Plaintiffs’ contention that 

enforcement actions will inevitably be completed more rapidly than court cases is at odds with 

their earlier allegation that the Commission lacks the ability “to diligently work through its 

enforcement docket.” (Id. ¶ 3.) In addition, some delay lawsuits under section 30109(a)(8) have 

been litigated to conclusion, undermining any claim that “such cases are inherently, or even 

likely, to evade review.” All. for Democracy, 335 F. Supp. 2d at 44 (citing Democratic 

Senatorial Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 1998)). 

Plaintiffs ignore this pertinent case law and mischaracterize the present lawsuit as an 

election-related controversy, which courts have held to be paradigmatic examples of lawsuits 

that are too short to be fully litigated. (Pls.’ Opp’n to Mot. to Dismiss at 7.) Plaintiffs note that 

this lawsuit was filed by “candidates actively campaigning for election and alleging injury in 

their election bids.” (Id.) But unlike election-related cases brought by candidates that survived 

the occurrence of an election, the present case became moot due to the FEC’s resolution of 

plaintiffs’ administrative matter. In fact, the case became moot because plaintiffs obtained the 

precise outcome they sought to achieve from this lawsuit. Moreover, none of the election-related 

cases plaintiffs cite involved a claim of unlawful delay of agency action. See FEC v. Wis. Right 

to Life, Inc., 551 U.S. 449 (2007) (challenging an application of the “electioneering 

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communications” provisions of the Bipartisan Campaign Reform Act); La Botz v. FEC, 889 F. 

Supp. 2d 51, 56 (D.D.C. 2012) (challenging dismissal of an administrative complaint alleging 

exclusion from candidate debates); Moore v. Hosemann, 591 F.3d 741, 743 (5th Cir. 2009) 

(challenging a deadline for ballot qualification of presidential candidates); Johnson v. FCC, 829 

F.2d 157, 159 (D.C. Cir. 1987) (challenging agency’s denial of an administrative complaint 

seeking an order that would prohibit the televising of any debate excluding third-party candidate 

plaintiffs); Shays v. FEC, 424 F. Supp. 2d 100, 108 (D.D.C. 2006) (challenging the FEC’s 

decision not to regulate certain groups as political committees).2

Equally unpersuasive is plaintiffs’ claim that the potential for FEC enforcement actions 

to take less than two years to resolve allows the FEC to create a supposed safe zone in which to 

unlawfully delay acting on administrative complaints unless the mootness exception is applied. 

(Pls.’ Opp’n to Mot. to Dismiss at 10-13.) As an initial matter, these arguments fail because the 

action challenged by a FECA delay claim is not, by its nature, too short to evade review, as 

explained in Alliance for Democracy. Plaintiffs attempt to distinguish that case by noting that it 

“involved an administrative complaint that proceeded through multiple stages of investigation 

and ultimately to conciliation.” (Id. at 11 n.7.) However, nothing in Alliance for Democracy

limits the Court’s reasoning to the facts of that case. Moreover, plaintiffs offer no support for 

their claim that because the FEC could conceivably abuse the prevailing legal standard for an 

exception to mootness, the Court should find that this specific lawsuit is not moot. In any event, 

 2

 Plaintiffs also cite cases holding that candidates have standing because courts have 

recognized injury from being forced to compete in illegally structured campaign environments. 

(Pls.’ Opp’n to Mot. to Dismiss at 7.) However, these cases have no bearing on whether a delay 

action is too short to be fully litigated. See LaRoque v. Holder, 650 F.3d 777, 787 (D.C. Cir. 

2011); Shays v. FEC, 414 F.3d 76, 87 (D.C. Cir. 2005). Nor do these cases show why a delay 

action that would otherwise be moot survives under the exception simply because it was brought 

by a candidate in a federal election. 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 13 of 30
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if Congress had intended the FEC to resolve enforcement cases within a particular timeframe, it 

could have mandated that, but instead Congress left the FEC with considerable discretion to 

manage its own docket. Akins v. FEC, 736 F. Supp. 2d 9, 21 (D.D.C. 2010) (“The FEC has 

broad discretionary power in determining whether to investigate a claim, and how, and . . . the 

prosecutorial discretion given to the Commission is entitled to great deference as to the manner 

in which it conducts investigations . . . .”). This Court should thus decline plaintiffs’ invitation to 

second-guess the FEC’s allocation of its resources in a now-closed matter.3

 See FEC v. Rose, 

806 F.2d 1081, 1091 (D.C. Cir. 1986) (“It is not for the judiciary to ride roughshod over agency 

procedures or sit as a board of superintendance directing where limited agency resources will be 

devoted. We are not here to run the agencies.”). 

2. There Is No Reasonable Expectation That the Same Plaintiffs Would 

Again Be Subjected to the Same Action 

Because the FEC has decided the merits of plaintiffs’ administrative complaint, there is 

no realistic expectation that they will again face the same alleged action. In other words, unless 

plaintiffs intend to file another administrative complaint with the FEC seeking the same or 

materially similar relief — and plaintiffs have failed to allege in their judicial complaint that they 

will do that — there is no basis to assume they would be subject to “the same action again.” 

 3

 Plaintiffs make several unfounded allegations about the FEC’s purported delay in 

resolving their administrative complaint. (See, e.g., Pls.’ Opp’n to Mot. to Dismiss at 9, 12.) 

These allegations need not be addressed in detail because, as plaintiffs concede, the merits of the 

delay claims are not at issue in the mootness inquiry. However, the FEC notes that it was 

reasonable to take 11 months to fully resolve the broad allegations in plaintiffs’ administrative 

complaint, which led to the identification of 47 administrative respondents, each of which was 

entitled to FECA’s procedural protections regardless of the complexity of the underlying legal 

issues. (See Admin. Compl., House Majority PAC, Matter Under Review 7101 (July 7, 2016), 

https://cg-519a459a-0ea3-42c2-b7bc-fa1143481f74.s3-us-gov-west-1.amazonaws.com/legal/ 

murs/current/119429.pdf.) Plaintiffs’ suggestion that the FEC could have dismissed their 

administrative complaint “much more expeditiously” ignores the statutory requirements 

governing the enforcement process under FECA. (Id.) 

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9 

Moreover, contrary to plaintiffs’ argument, because the administrative matter is closed, it cannot 

be compared to a case where the court found the FEC’s delay to be unlawful because the agency 

could “implement a start-stop approach” on a pending administrative matter. See Democratic 

Senatorial Campaign Comm. v. FEC, Civ. No. 95-0349, slip op. at 2 (D.D.C. April 17, 1996). 

This Court recognized the distinction between pending and closed administrative matters in 

Alliance for Democracy. See 335 F. Supp. 2d at 47. Plaintiffs claim that in the absence of a 

judicial declaration, the FEC will delay resolving unspecified future complaints. (Pls.’ Opp’n to 

Mot. to Dismiss at 9 (citing Honig v. Doe, 484 U.S. 305, 321-22 (1988)).) But even an 

“argument that these same plaintiffs will at some point in the future have a basis to believe that 

[FECA] has been violated, again file an administrative complaint, and again claim the FEC 

unreasonably delayed is far too attenuated.” All. for Democracy, 335 F. Supp. 2d at 44.4

 

Declaratory relief is also not warranted based on plaintiffs’ unfounded assertions that the 

FEC “controls the length of the delay” and can “moot [an administrative] complaint at any time 

by issuing a decision.” (Pls.’ Opp’n to Mot. to Dismiss at 9.) Such arguments ignore the limits 

on the FEC’s authority under FECA and the realities of administrative proceedings in general. 

There is simply no basis to suggest that the FEC would intentionally delay action on an 

administrative complaint or seek to improperly moot delay lawsuits. Mooting of such suits is 

merely a natural byproduct where the FEC completes final action on the administrative 

complaint. 

 4

 Plaintiffs attempt to distinguish Alliance for Democracy by broadly casting the goal of 

the current litigation as “present[ing] the U.S. Supreme Court with an opportunity to overturn” 

SpeechNow. (Pls.’ Opp’n to Mot. to Dismiss at 8.) However, that goal does not mean that 

plaintiffs would again face the same action by the FEC, particularly since the FEC has already 

decided the merits of their administrative complaint. 

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10 

Plaintiffs’ abandonment of their original delay claims, the lack of available relief, and 

plaintiffs’ failure to meet their burden of establishing an exception to the mootness doctrine 

require the Court to grant the FEC’s motion to dismiss for lack of jurisdiction. 

III. MOOTNESS IS A THRESHOLD JURISDICTIONAL QUESTION THAT 

SHOULD BE DECIDED FIRST 

The Commission has explained that the claims in plaintiffs’ original complaint are moot 

and should be dismissed because the agency has completed final action on plaintiffs’ 

administrative complaint. (See Mot. to Dismiss at 6-8.) The Commission also showed in its 

opposition to plaintiffs’ Motion to Amend that the Court may not grant leave to amend where its 

jurisdiction over the case has ceased to exist. (See FEC’s Opp’n to Pls.’ Mot. to Amend at 8-10.) 

Plaintiffs argue that because they have moved to amend the original complaint, the Court 

should not decide the FEC’s motion to dismiss until it decides plaintiffs’ pending motion. 

However, plaintiffs’ argument contravenes the fundamental principle that the Court lacks 

jurisdiction and is thus without power to act when an action no longer presents a “live” 

controversy. See Am. Wild Horse Pres. Campaign v. Salazar, 800 F. Supp. 2d 270, 273 (D.D.C. 

2011); Fox v. Bd. of Trs. of State Univ. of N.Y., 148 F.R.D. 474, 487 n.30 (S.D.N.Y. 1993), aff’d, 

42 F.3d 135 (2d Cir. 1994). Indeed, Article III of the United States Constitution authorizes this 

Court to adjudicate only actual cases and controversies. 21st Century Telesis Joint Venture v. 

FCC, 318 F.3d 192, 198 (D.C. Cir. 2003) (quoting Honig, 484 U.S. at 317). Thus, the Court 

may not simply defer a motion to dismiss a moot complaint and allow plaintiffs to substitute new 

claims and an entirely new basis for jurisdiction.5

 

 5

 Plaintiffs suggest, without citing any authority, that the doctrine of constitutional 

avoidance supports first deciding their motion to amend. (Pls.’ Opp’n to Mot. to Dismiss at 6.) 

However, it is well-established that questions of justiciability must be decided before the Court 

determines the merits of the case. See, e.g., ACLU of Mass. v. U.S. Conference of Catholic 

Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (“We begin and end our analysis on the issue of 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 16 of 30
11 

Article III and the applicable case law foreclose plaintiffs’ efforts to reframe the 

jurisdictional issue as a matter of discretion that may be deferred until after the Court considers 

plaintiffs’ motion for leave to amend. Notably, in a case plaintiffs cite, a court in this district 

explained: 

If a court lacks jurisdiction over the subject matter, it is disabled 

from taking any action. It is therefore perfectly understandable 

why a court which lacks jurisdiction over the subject matter 

cannot grant a motion to amend a complaint, any more than it 

could enter a judgment. 

Ulico Cas. Co. v. E.W. Blanch Co., 200 F.R.D. 3, 5 (D.D.C. 2001) (emphases added). In Ulico, 

the court allowed an amended complaint to supersede an original complaint that was allegedly 

deficient in jurisdiction because plaintiff amended the complaint as of right under the Federal 

Rule of Civil Procedure 15(a). But that is inapplicable here because plaintiffs now require court 

approval for an amendment.6

 And at this stage of litigation, courts may not grant leave to amend 

a moot complaint. See Am. Wild Horse, 800 F. Supp. 2d at 273 n.1 (dismissing plaintiffs’ 

original challenge to an agency action as moot and rejecting its arguments for amendment 

because “if there is no federal jurisdiction in a case, it may not be created by amendment”). 

Plaintiffs attempt to distinguish American Wild Horse by claiming that the amended complaint 

here does not involve an “unrelated administrative decision[]” (Pls.’ Reply in Supp. of Mot. to 

Amend at 11) and that their original complaint and proposed amended complaint assert the 

 

mootness. Mootness is a ground which should ordinarily be decided in advance of any 

determination on the merits.”) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67 

(1997)). Determining whether plaintiffs’ proposed amendment is futile necessarily involves 

assessing the merits, and the Court should thus first decide the FEC’s motion to dismiss for lack 

of jurisdiction. 

6

 Plaintiffs also argue that once a proposed amended complaint becomes operative, 

jurisdiction should be based on the amended complaint. (Pls.’ Opp’n to Mot. to Dismiss at 3-4.) 

However, that principle does not help plaintiffs here because the Court lacks jurisdiction to grant 

an amendment in the first place. 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 17 of 30
12 

“same injury-in-fact” (Pls.’ Opp’n to Mot. to Dismiss at 5). But plaintiffs are incorrect. FECA’s 

plain language creates a distinct cause of action for challenging the Commission’s dismissal of 

an administrative complaint, which does not depend on or evolve from an action challenging an 

unlawful delay. See 52 U.S.C. § 30109(a)(8). Furthermore, plaintiffs’ attempt to conflate the 

two types of injuries is unavailing in light of this Court’s previous recognition that delay and 

dismissal claims are not related. (See FEC’s Opp’n to Mot. to Amend at 21-22 (citing Notice of 

Designation of Related Civil Cases, All. for Democracy v. FEC, No. 04-cv-00127-RBW, Docket 

No. 2 (D.D.C. Jan. 26, 2004).) Tellingly, plaintiffs have failed to address these arguments. 

Instead, plaintiffs compare this case to Dynalantic Corp. v. Department of Defense, 115 

F.3d 1012, 1015 (D.C. Cir. 1997), where the court allowed a plaintiff to amend the complaint to 

assert a broader claim of injury arising from the same government program plaintiff had 

originally challenged. Id. (“The government apparently intends to continue . . . the [challenged] 

program, and [plaintiff’s] challenge to the program is not mooted merely because the challenge 

to one particular application of it may be.”). Plaintiffs’ reliance on Dynalantic is misplaced 

because this case involves two dissimilar and unrelated agency actions, challenges to each of 

which encompass different legal rights and remedies. Plaintiffs also suggest that this case is 

similar to Dynalantic and other cases where the government’s own action causes the original 

complaint to become moot. (Pls.’ Opp’n to Mot. to Dismiss at 5). The FEC’s action on the 

underlying administrative complaint did render the judicial complaint moot, but that action 

provided plaintiffs with the outcome they sought and cannot be construed as an attempt to 

circumvent judicial review, in contrast to the cases on which plaintiffs rely. 

Plaintiffs also argue that courts “often allow plaintiffs to amend their complaints to cure 

[the] defect” when cases are “definitely” moot (Pls.’ Opp’n to Mot. to Dismiss at 4), but the cases 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 18 of 30
13 

plaintiffs cite do not actually meet that description. See Diffenderfer v. Cent. Baptist Church of 

Miami, Fla., Inc., 404 U.S. 412, 415 (1972) (per curiam) (remanding with leave to amend in part 

so appellants could demonstrate that the repealed statute, which was the basis of the original 

claim, retained some continuing force); Bryan v. Austin, 354 U.S. 933 (per curiam) (1957) 

(remanding with leave to amend in part so appellants could “safeguard any rights that may have 

accrued to them by virtue of the operation of the repealed [a]ct”); Worth v. Jackson, 483 F. Supp. 

2d 1, 2 & n.2 (D.D.C. 2004) (granting leave to amend only after determining that defendant had 

“failed to establish mootness”). These cases actually support the FEC’s position that the Court 

must first determine whether the original complaint is moot before evaluating plaintiffs’ motion 

to amend.7

 Indeed, presented with the issue of mootness, the Fourth Circuit has declined to 

allow amendment under Diffenderfer and instead remanded with instructions to dismiss the 

complaint where “the entire action below is [] moot.” Phillips v. McLaughlin, 854 F.2d 673, 678 

n.11 (4th Cir. 1988) (citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)). Here, as in 

Phillips, plaintiffs have not established the ongoing viability of any claim in the original 

complaint. In fact, plaintiffs abandoned all claims from the original complaint in their proposed 

amended complaint. (See Proposed Am. Compl.) There is thus no reason to delay deciding the 

FEC’s motion to dismiss. 

 7

 Plaintiffs also cite cases in which it is unclear whether the parties fully litigated the 

jurisdictional issue, see Schmidt v. United States, 749 F.3d 1064, 1070 n.4 (D.C. Cir. 2014) 

(expressing frustration with the parties for their lack of briefing on the interplay between Rule 15 

and mootness), or the court did proceed to find all the original claims moot, see Sierra Club v. 

Watkins, 808 F. Supp. 852, 857 (D.D.C. 1991) (finding only that plaintiff’s challenge to an 

environmental assessment became moot after the filing of a subsequent environmental 

assessment, but assessing the merits of plaintiffs’ alternative argument about the applicability of 

a different environmental procedure). These cases thus do not support plaintiffs’ contentions 

regarding how this Court should adjudicate the present motion to dismiss. 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 19 of 30
14 

The judicial task here is not to exercise discretion to determine which motion should be 

decided first but rather to conduct a narrower inquiry into whether the claims in the original 

complaint are moot and should be dismissed for lack of jurisdiction. None of the cases plaintiffs 

cite supports plaintiffs’ request that the Court exercise such discretion. In fact, most of the cited 

cases merely stand for the proposition the FEC itself acknowledged in its opening brief: Courts 

may allow a plaintiff to cure a jurisdictional defect through amendment or supplementation. See 

3 James Wm. Moore et al., Moore’s Federal Practice ¶ 15.14[3] (3d ed. 1999) (“Essentially a 

plaintiff may correct the complaint to show that jurisdiction does in fact exist; however, if there 

is no federal jurisdiction, it may not be created by amendment.”); Purtill v. Harris, 658 F.2d 134, 

138-39 (3d Cir. 1981) (remanding with permission to allow plaintiff to amend complaint to 

allege exhaustion of his administrative remedies); Shows v. Harber, 575 F.2d 1253, 1255 (8th 

Cir. 1978) (per curiam) (“remand[ing] to the district court with directions to permit the plaintiff 

to amend her complaint to allege the essentials of diversity of citizenship”); Judicial Watch, Inc. 

v. DOE, 191 F. Supp. 2d 138, 139 (D.D.C. 2002) (allowing plaintiff in a Freedom of Information 

Act case to file a supplemental pleading alleging the additional fact that it had exhausted its 

administrative remedies). But these cases do not support allowing amendment or 

supplementation to substitute a new cause of action and a new basis for jurisdiction after the 

original claims have become moot in their entirety.8

 

 8

 Plaintiffs also cite district court cases allowing supplemental complaints to add claims 

involving issues identical or similar to the issues in the operative complaint. See Aftergood v. 

CIA, 225 F. Supp. 2d 27, 31 (D.D.C. 2002) (supplemental complaint alleged a “substantially 

identical” issue); Matthew Bender & Co. v. W. Publ’g Co., No. 94 CIV. 0589 (JSM), 1995 WL 

702389, at *4 (S.D.N.Y. Nov. 28, 1995) (supplemental complaint did not “inject an entirely new 

issue into the case” and “the basic issues . . . [had] not changed at all”). But as explained supra, 

here plaintiffs seek to substitute dismissal claims this Court has previously refused to recognize 

as related to delay claims. 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 20 of 30
15 

Plaintiffs’ reliance-based arguments also fail to show that the Court should first decide 

their motion to amend. Plaintiffs claim that it would be unjust to deny their motion for leave to 

amend because they did not file a new complaint challenging the Commission’s dismissal of 

their administrative complaint before the expiration of the 60-day limitations statutory period in 

reliance upon the Court’s Scheduling Order. Pls.’ Reply in Supp. of Mot. to Amend at 8; see 52 

U.S.C. § 30109(a)(8)(B) (petitions challenging an order of the Commission dismissing an 

administrative complaint must be filed within 60 days after the date of dismissal). Plaintiffs 

argue that the Scheduling Order was an “actual or apparent rejection of the FEC’s position” that 

the Court lacks jurisdiction to grant leave to amend because the original complaint is moot. 

However, that argument ignores the plain language of the Scheduling Order, which allows 

plaintiffs only to “file a motion to amend or supplement their complaint” within the specified 

time period. (Scheduling Order at 2 (Docket No. 16) (emphasis added).) The FEC is not arguing 

that plaintiffs had no right to file their motion; only that it should be denied. Further, nothing 

prevented plaintiffs from simultaneously filing a new complaint to preserve the timeliness of 

their dismissal claims. 

Plaintiffs claim that deciding their motion for leave to amend before the FEC’s motion to 

dismiss would serve judicial economy, but that is irrelevant because if the Court determines it 

lacks jurisdiction over the case, it should not grant leave to amend. And in any event, plaintiffs 

have failed to show that judicial economy or other interests of justice would be served by 

granting them leave to amend. 

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IV. EVEN IF THE COURT IS NOT REQUIRED TO CONSIDER THE 

COMMISSION’S JURISDICTIONAL ARGUMENTS BEFORE PLAINTIFFS’ 

MOTION TO AMEND, THE FUTILITY OF AMENDMENT HERE MEANS 

THAT THE COURT MUST STILL RULE ON THE MOTION TO DISMISS 

Assuming that this Court has the authority to decide plaintiffs’ motion to amend prior to 

ruling on the Commission’s jurisdictional arguments, the Court should still rule on the motion to 

dismiss because the motion to amend should be denied based on futility of amendment. 

Plaintiffs have offered no valid reason why the Court should refrain from ruling on the futility of 

amendment at this stage. Doing so would be the most efficient course, as it would obviate the 

need for successive rounds of briefing on whether the Commission permissibly conformed to 

settled precedent that both parties agree is binding on this Court. Because plaintiffs’ motion to 

amend should be denied, this Court need not delay consideration of the motion to dismiss. 

A. Plaintiffs Offer No Valid Reason Why the Futility Inquiry Should Not Be 

Decided at This Stage 

Plaintiffs’ primary argument is that a ruling on the Commission’s motion to dismiss 

should wait for the Court’s ruling on their motion to file an amended complaint. (Pls.’ Opp’n to 

Mot. to Dismiss at 2-6.) Plaintiffs suggest that the Court should not decide whether amendment 

is futile until after the amendment is accepted. That argument assumes the result it seeks. There 

is no good reason to delay the result in this case when all of these issues are ripe for review now. 

As plaintiffs implicitly concede, there is no barrier to the Court’s consideration of the 

merits of the proposed amended complaint at this stage. (See Pls.’ Reply in Supp. of Mot. to 

Amend at 12-13.) Even so, plaintiffs argue that the Court should simply allow amendment 

without deciding “whether the amended pleading is defective.” (Id. at 12.) But plaintiffs admit 

that binding circuit precedent compels this Court to reject their claims. (See id. at 1.) That same 

precedent unquestionably establishes the futility of amendment. See Banner Health v. Burwell, 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 22 of 30
17 

55 F. Supp. 3d 1, 9 (D.D.C. 2014) (holding that amendment to assert certain proposed claims 

was “futile” because the claims were “contrary to D.C. Circuit precedent”). 

None of plaintiffs’ cases supports their request for the Court to delay ruling on the futility 

of the claims in the proposed amended complaint. In Deya v. Hiawatha Hospital Ass’n, the court 

permitted amendment to assert a negligence claim without deciding a legal issue on which there 

was “no Kansas state or federal case directly on point.” No. 10-cv-2263, 2011 WL 1698774, at 

*3 (D. Kan. May 4, 2011) (internal quotation marks omitted). Another case did address futility, 

in the context of a proposed amendment sought by a pro se plaintiff. Adams v. FedEx Ground 

Package Sys., Inc., No. 11-cv-2333, 2013 WL 61448, at *1 (D. Colo. Jan. 4, 2013). And another 

case considered a proposed amendment that the defendant claimed suffered from the same legal 

defect that was the subject of a still-pending motion to dismiss. Matthew Bender & Co. v. W. 

Publ’g Co., No. 94 Civ. 0589 (JSM), 1995 WL 702389, at *4 (S.D.N.Y. Nov. 28, 1995). None 

of those cases involved judicial review of an agency’s enforcement decisions, which presents a 

“purely legal question.” Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. 

Cir. 1993). And none of those cases considered a proposed amended pleading that conflicted 

with clear and binding circuit precedent. 

Further delay here would serve no useful purpose. Should the Court deny amendment 

based on futility and grant the Commission’s motion to dismiss, plaintiffs would be free to argue 

to the Court of Appeals or the Supreme Court that their claims are viable. See In re Interbank 

Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (on appeal from a denial of leave 

to amend for futility, “the standard of review is de novo”). Resolving the entire case now would, 

therefore, actually benefit plaintiffs by speeding this case to its inevitable conclusion at this stage 

and on to a potential appeal. 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 23 of 30
18 

The only prejudice plaintiffs identify to support their request that the court withhold 

ruling on the motion to dismiss is that, under this procedural posture, plaintiffs “must address” 

futility “from the standpoint . . . of a reply brief.” (See Pls.’ Reply in Supp. of Mot. to Amend 

at 12.) It was plaintiffs’ strategic choice, however, to address potential futility arguments only 

obliquely in their motion to amend. (See Mot. to Amend at 10.) And they did so despite 

acknowledging that “futility of amendment” was part of the standard for resolving their motion. 

(Id. at 5 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).) Plaintiffs’ opening brief did not 

come close to the page limit and they sought no extension of that limit, nor did they seek one for 

their reply, although they did seek and receive a substantial extension of time to file the reply 

brief. (See Consent Mot. for Extension of Briefing Deadlines (Docket No. 27).) In any event, all 

parties agree that the claims plaintiffs seek to assert in their amended pleading are precluded by 

clear circuit precedent. There can be no prejudice to plaintiffs in confirming the obvious now. 

In contrast, granting leave to amend and denying the FEC’s motion to dismiss would 

require: (1) plaintiffs to file the amended complaint; (2) the Commission to answer or make a 

motion under Rule 12; and (3) the Court to resolve the matter on a Rule 12 motion or summary 

judgment proceedings after compiling of an administrative record and further briefing. The 

parties agree that the conclusion of those proceedings is set: SpeechNow requires this Court to 

rule in the Commission’s favor. Deciding that question now preserves judicial resources. 

B. Plaintiffs’ Choice to Bring This Suit Pursuant to 52 U.S.C. § 30109(a)(8) Led 

to the Highly Deferential Standard of Review That Applies Here 

In seeking to overturn SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), plaintiffs 

had a choice of procedural mechanisms. They elected to file an administrative complaint asking 

the FEC to pursue enforcement proceedings implicating ten identified super PACs and 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 24 of 30
19 

contributors to those groups for allegedly violating FECA even though SpeechNow and other 

precedent foreclosed such enforcement. 

One of the consequences of plaintiffs’ choice is the standard for judicial review of 

Commission decisions dismissing an administrative complaint. Under 52 U.S.C. § 30109(a)(8), 

judicial review is limited to whether the Commission’s “dismissal . . . is contrary to law.” The 

D.C. Circuit and other courts have repeatedly described this standard as “[h]ighly deferential” to 

the Commission’s enforcement decisions. Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) 

(internal quotation marks omitted); see also Citizens for Responsibility & Ethics in Wash. v. 

FEC, 236 F. Supp. 3d 378, 390 (D.D.C. 2017) (noting that the standard for reviewing 

Commission decisions “whether to initiate or proceed with charges of alleged FECA violations” 

is “extremely deferential”), appeal docketed, No. 17-5049 (D.C. Cir. Mar. 24, 2017). 

Plaintiffs suggest that no deference should be given to the FEC’s decision because it 

relies on a constitutional holding of the D.C. Circuit. But that argument conflates the deference 

the Commission receives when making enforcement decisions with the deference administrative 

agencies receive when exercising authority delegated by Congress to fill gaps in statutes they 

administer under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 

(1984). To be sure, in the latter instance courts are not bound to accept an agency construction 

when engaged in direct interpretation of judicial precedent. In the context of FEC enforcement 

decisions, however, the agency is generally “far better equipped than the courts” to analyze the 

relevant factors — including the state of the law as expressed in judicial opinions — and make 

reasonable conclusions about “whether the agency is likely to succeed if it acts.” Heckler v. 

Chaney, 470 U.S. 821, 831 (1985). Unlike the decision not to enforce at issue in Heckler, the 

FEC’s dismissal decisions are subject to judicial review. See FEC v. Akins, 524 U.S. 11, 26 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 25 of 30
20 

(1998). But such decisions are reviewed only to determine whether the Commission’s action 

was “sufficiently reasonable.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 

39 (1981).9

There is also no merit to plaintiffs’ straw-man claim that the Commission’s arguments 

here would have prevented Brown v. Board of Education, 347 U.S. 483 (1954). (See Pls.’ Reply 

in Supp. of Mot. to Amend at 16-17.) Brown did not involve judicial review of an agency’s 

decision not to bring an enforcement action under a deferential standard of review. Rather, that 

case presented a constitutional question directly. Had plaintiffs wanted to obtain judicial review 

of whether SpeechNow was correctly decided without implicating deference to Commission 

enforcement decisions, they could have chosen another mechanism to achieve that result. For 

example, plaintiffs might have directly challenged the Commission advisory opinion at issue. 

See, e.g., Unity08 v. FEC, 596 F.3d 861, 864-65 (D.C. Cir. 2010). Instead, plaintiffs elected to 

ask the Commission to test their preferred legal theory by initiating enforcement proceedings 

against specified citizens and groups. Had the Commission accepted plaintiffs’ suggestion to go 

forward, these administrative respondents would have had to defend their conduct in further 

administrative proceedings — and potential enforcement litigation — even though the D.C. 

Circuit and other jurisdictions have held that such conduct cannot be limited consistent with the 

First Amendment. Having chosen to request that the Commission consider these issues in the 

 9

 The enforcement context of this case also distinguishes those few cases where courts 

have considered an agency’s interpretative guidance adopted nationwide after a single foreign 

court of appeals ruled against the agency’s prior interpretation. See Holland v. Nat’l Mining 

Ass’n, 309 F.3d 808 (D.C. Cir. 2002). A different set of factors applies to an agency’s decision 

not to bring an enforcement action. See Heckler, 470 U.S. at 831; La Botz v. FEC, 61 F. Supp. 

3d 21, 33 (D.D.C. 2014). Moreover, it is clearly reasonable for an administrative agency to 

follow a judicial holding declaring a statute unconstitutional within that jurisdiction. See Grant 

Med. Ctr. v. Burwell, 204 F. Supp. 3d 68, 79 (D.D.C. 2016), appeal docketed sub nom. Grant 

Med. Ctr. v. Price, No. 16-5314 (D.C. Cir. Oct. 31, 2016). 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 26 of 30
21 

enforcement context against identified administrative respondents, plaintiffs must now live with 

that choice. 

In any event, no dispute regarding the level of deference courts should afford to 

Commission dismissal decisions should delay the resolution of this case because no deference is 

necessary to affirm the Commission’s decision here. In SpeechNow the D.C. Circuit 

unambiguously ruled that contribution limits could not be constitutionally applied to 

contributions to groups that make only independent expenditures. 599 F.3d at 696. Separation 

of powers principles require the FEC to follow that decision in this circuit. Yellow Taxi Co. of 

Minneapolis v. NLRB, 721 F.2d 366, 382 (D.C. Cir. 1983); cf. Adams v. Suozzi, 393 F. Supp. 2d 

175, 178 (E.D.N.Y. 2005) (holding that it was not “contrary to law” for magistrate judge to 

refuse to stay discovery pending appeal “[g]iven the clear precedent from the Second Circuit 

directly on point on this issue” notwithstanding circuit split). And while the Commission might 

have elected to test the continued validity of SpeechNow, it “was not required to make [that] 

choice.” Grant Med. Ctr., 204 F. Supp. 3d at 80. 

C. This Court Cannot Reconsider SpeechNow

All parties agree that this Court is bound by the D.C. Circuit’s decision in SpeechNow. 

Plaintiffs nonetheless argue that decision was wrong because it is inconsistent with the Supreme 

Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) and because it applied cases 

considering limits on campaign expenditures to a limit on contributions. (Pls.’ Reply in Supp. of 

Mot. to Amend at 17-22.) But the Court of Appeals already considered and rejected these 

arguments. In fact, the Commission specifically argued in SpeechNow that a more permissive 

standard of review applies to contribution limits than to limits on expenditures. See FEC Br. at 

19-23, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Sept. 23, 2009), 

http://www.fec.gov/law/litigation/speechnow_fec_brief_092309.pdf. The Commission also 

Case 1:16-cv-02201-EGS Document 30 Filed 09/05/17 Page 27 of 30
22 

warned of the possibility of “the proliferation of independent expenditure political committees 

devoted to supporting or opposing a single federal candidate or officeholder and funded entirely 

by very large contributions” which afford high-dollar donors “unprecedented influence over 

candidates and elected officials.” Id. at 45. And the Commission similarly argued that 

independent groups gain “undue influence over officeholders” even “without directly 

coordinating with them” on campaign-related spending. Id. at 36-38. Plaintiffs’ arguments 

therefore rehash arguments that the D.C. Circuit found unpersuasive in SpeechNow itself. 

Nor do the recent cases plaintiffs cite suggest any change in the law that undermines the 

holding of SpeechNow. (See Pls.’ Reply in Supp. of Mot. to Amend at 19-20 (citing Republican 

Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016), aff’d, 137 S. Ct. 2178 (2017); United 

States v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015)).) The soft money restrictions at issue in 

Republican Party of Louisiana applied not to independent groups but to political parties, which 

the courts have treated differently in light of their close relationship with officeholders and 

candidates. 219 F. Supp. 3d at 97; see also McConnell v. FEC, 540 U.S. 93, 154-55 (2003). 

Similarly, Menendez involved allegations that the defendants had engaged “in a quid pro quo

bribery scheme, not with exceeding limits set by a prophylactic campaign finance regulation” 

like the one struck down in SpeechNow. Menendez, 132 F. Supp. 3d at 638. Those cases do not 

justify revisiting SpeechNow. 

D. Even If SpeechNow Were Wrongly Decided, the Commission Acted 

Reasonably in Following its Prior Advisory Opinion 

In dismissing plaintiffs’ administrative complaint, the Commission also reasonably relied 

on its prior advisory opinion that had expressly authorized committees that make only 

independent expenditures to accept unlimited contributions. See FEC Advisory Op. 2010-11 

(Commonsense Ten), 2010 WL 3184269 (July 22, 2010). This advisory opinion justifies the 

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23 

Commission’s dismissal because those who rely in good faith on an FEC advisory opinion “shall 

not . . . be subject to any sanction provided by” FECA. 52 U.S.C. § 30108(c)(2). The 

Commission interpreted this safe harbor as preventing the enforcement proceedings plaintiffs 

requested in their administrative complaint. That decision is entitled to Chevron deference. 

Plaintiffs argue that the term “sanction” unambiguously prevents only the imposition of 

“penalties” and note that they seek “only prospective relief.” (See Pls.’ Reply in Supp. of Mot. 

to Amend at 22-23.) But courts interpreting statutory uses of the term “sanction” have not 

limited it to backward-looking relief. The Supreme Court has observed that as “a general 

matter” this definition “is spacious enough to cover” both “punitive fines” to punish past 

statutory violations as well as “coercive” fines designed to modify behavior prospectively. U.S. 

Dep’t of Energy v. Ohio, 503 U.S. 607, 621 (1992) (construing the Clean Water Act). And the 

Eleventh Circuit has concluded that a “sanction is commonly understood” to include restrictive 

measures designed “‘to prevent some future activity.’” United States v. Alabama, 691 F.3d 

1269, 1289 (11th Cir. 2012) (quoting Webster’s Third New International Dictionary 2009 

(1976)). 

Nor does the D.C. Circuit’s opinion in LaRouche v. FEC preclude deference to the 

Commission’s interpretation of “sanction.” 28 F.3d 137 (D.C. Cir. 1994). That case held only 

that a Commission order to a presidential candidate to repay presidential matching funds 

erroneously disbursed to that candidate was not a “sanction.” Id. at 142. It did not address 

whether declaratory or injunctive relief constitutes a sanction under FECA. Moreover, a “court’s 

prior judicial construction of a statute trumps an agency construction otherwise entitled to 

Chevron deference only if the prior court decision holds that its construction follows from the 

unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l Cable & 

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24 

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). LaRouche did not hold 

that “sanction” was unambiguous; indeed, the case does not appear to have considered that 

question at all. 28 F.3d at 142.10 In the absence of such an indication, the Commission’s 

reasonable construction of the ambiguous term controls. 

V. CONCLUSION 

Because this case is moot, it should be dismissed. 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

September 5, 2017 

/s/ Jacob S. Siler 

Jacob S. Siler (D.C. Bar. No. 1003383) 

Attorney

jsiler@fec.gov 

Sana Chaudhry 

Attorney 

schaudhry@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

 10 It is also not clear that LaRouche equated sanctions with penalties, as plaintiffs argue. 

The order to repay at issue in LaRouche is akin to an agency disgorgement order, which the 

Supreme Court has construed as a penalty in some contexts. See Kokesh v. SEC, 137 S. Ct. 

1635, 1644 (2017). 

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