IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 Petitioner, 

 v. 

Federal Election Commission, 

 Respondent. 

REPLY

 No. 11-1354 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS PETITION FOR LACK OF JURISDICTION 

 

 Judicial review of the advisory opinions issued by the Federal Election 

Commission (“Commission” or “FEC”) must begin in the district courts. 

Accordingly, the Commission has moved this Court to dismiss Hassan’s petition 

for review. 

 Hassan wrongly contends that this Court has original jurisdiction to review 

the advisory opinion he received because the Commission either was acting under 

the Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 

(“Matching Payment Act”), or should be deemed to have been acting under it. The 

Commission issued its advisory opinion pursuant to its authority under 2 U.S.C. § 

437f , a provision of the Federal Election Campaign Act, 2 U.S.C. §§ 431-57 

USCA Case #11-1354 Document #1345147 Filed: 12/01/2011 Page 1 of 10
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(“FECA”) — not under the Matching Payment Act. And such advisory opinions 

are reviewable in the first instance, if at all, in the district courts under 28 U.S.C. 

§ 1331. See also FEC’s Mot. to Dismiss and Opp’n to Mot. to Certify and 

Expedite (“Mot.”), Nov. 7, 2011, at 5-9 (Matching Payment Act does not give 

Commission authority to issue advisory opinions).1

 Hassan provides no good 

reason for the Court to depart from the “‘normal default rule’ . . . that ‘persons 

seeking review of agency action go first to district court.’” Watts v. SEC, 482 F.3d 

501, 505 (D.C. Cir. 2007) (quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 

1481 (D.C. Cir. 1994)).

When interpreting jurisdictional provisions, this Court has explained that 

“[i]nitial review occurs at the appellate level only when a direct-review statute 

specifically gives the court of appeals subject-matter jurisdiction.” Watts, 

482 F.3d at 505 (citing cases) (emphasis added). The Court “‘simply is not at 

liberty to displace, or improve upon, the jurisdictional choices of Congress’” and 

thus is careful not to expand beyond what “the plain terms of the statute dictate.” 

Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d. 1279, 1287 

 

1 Hassan has filed a combined Reply to Respondent’s Response/Opposition to 

Petitioner’s Motion to Certify and/or to Expedite and Response to the 

Respondent’s Motion to Dismiss for Lack of Jurisdiction on November 17, 2011 

(“Resp.”). This reply brief addresses only Hassan’s Response to the Commission’s 

Motion to Dismiss. See Fed. R. App. P. 27(a)(4). The Commission has already 

addressed Hassan’s motion to have questions certified to the United States 

Supreme Court and to have this case expedited. See Mot. at 9-19. 

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(D.C. Cir. 2007) (quoting Five Flags Pipe Line Co. v. Dep’t of Transp., 854 F.2d 

1438, 1441 (D.C. Cir. 1988)). “It is axiomatic that ‘Congress, acting within its 

constitutional powers, may freely choose the court in which judicial review [of 

agency decisions] may occur.’” Five Flags Pipe Line, 854 F.2d at 1439 (quoting 

City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir.1979) (alterations in 

original)). Hassan claims that an advisory opinion should be reviewed directly in 

this Court pursuant to 26 U.S.C. § 9041(a) in the same way as the Commission’s 

adjudicatory decisions under the Matching Payment Act. Resp. at 1-5. But section 

9041(a) provides for original appellate jurisdiction only for agency actions made 

under Title 26, which are certifications regarding eligibility for matching funds and 

determinations that matching funds must be repaid. See 26 U.S.C. §§ 9036, 9038. 

Title 26 neither provides for advisory opinions nor specifies how advisory opinions 

issued under 2 U.S.C. § 437f can be reviewed by the courts. None of the points 

Hassan raises in his opposition call into question the plain meaning of the relevant 

statutory language. 

First, Hassan argues that the Commission’s advisory opinion authority 

(2 U.S.C. § 437f) is merely an “authorizing provision which . . . empowers the 

FEC to act under the [Matching Payment Act]” and that the Commission was 

acting under the Matching Payment Act when it issued the underlying advisory 

opinion. Resp. at 1-2. The authority to interpret the Matching Payment Act, 

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however, is distinct from the authority to issue an advisory opinion. Only FECA 

provides the Commission authority to issue advisory opinions. Those powers are 

established in 2 U.S.C. § 437d(a)(7) (“The Commission has the power . . . to 

render advisory opinions under section 437f of this title . . . .”) and 2 U.S.C. § 

437f. Likewise, only FECA — and not the Matching Payment Act — provides a 

defense for any person acting in accordance with “such advisory opinion . . . [and 

precludes] any sanction provided by this Act or by chapter 95 or chapter 96 of title 

26.” 2 U.S.C. § 437f(c).2

 

This Court’s decision in Five Flags Pipeline is instructive. In that case, the 

Court distinguished the Department of Transportation’s “power” to establish a fee 

schedule under one statute with interpretations it made of another statute that were 

relevant to its fee schedule determinations. 854 F.2d at 1441. Because the statute 

establishing the agency’s fee schedule power did not provide for direct appellate 

review, the Court declined to exercise original jurisdiction — even though the 

other relevant statute did provide such jurisdiction. “To be sure, questions about 

the meaning of certain provisions of the [latter statute] may arise in the course of 

judicial review of the fee schedules, but that is no reason for concluding that the 

user fee notices are regulations issued under [that] Act.” Id. (emphasis added; 

 

2 Congress also provided the Commission with general authority to “formulate 

policy with respect to” FECA and the Matching Payment Act, 2 U.S.C. 

§ 437c(b)(1), but that authorization is separate from the statutory provisions 

regarding advisory opinions.

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internal quotation marks omitted). Likewise, here, there is no reason to conclude 

that the Commission’s advisory opinion rendered pursuant to 2 U.S.C. § 437f was 

“issued under” the Matching Payment Act, even though the opinion interpreted 

that Act. 

Hassan argues that the Commission has not cited any cases specifically 

holding that actions for review of Commission advisory opinions must be brought 

in the district court. Resp. at 1-2. That is not surprising — we are not aware of 

any other attempt besides Hassan’s to seek review of an advisory opinion before 

this Court in the first instance. To the extent advisory opinions have been 

reviewed at all, review was brought in the first instance in the district court. Mot. 

at 7 (citing Unity08 v. FEC, 596 F.3d 861, 867 (D.C. Cir. 2010)); see also U.S. 

Defense Comm. v. FEC, 861 F.2d 765, 771 (2d. Cir. 1988) (vacating on ripeness 

grounds lower court decision reviewing advisory opinion). 

Second, Hassan suggests that “[t]he whole purpose of 26 U.S.C. § 9041(a) 

[is] to have the Court of Appeals review actions concerning the subject matter of 

the [Matching Payment Act].” Resp. at 2 (emphasis added). However, the text of 

the statute does not support Hassan’s expansive claims. Section 9041(a) provides 

the review mechanism for “agency action by the Commission” made under the 

provisions of the Matching Payment Act, not to all actions related to the much 

broader “subject matter” as Hassan claims. This Court has consistently refused to 

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find direct review jurisdiction by implication. See, e.g., Public Citizen, 489 F.3d at 

1287-88 (finding court of appeals lacked jurisdiction over agency decision to 

refuse to initiate a rulemaking, despite having authority to review promulgated 

rules); Watts, 482 F.3d at 505-06 (holding that even though agency orders 

involving final dispositions were subject to direct review in the court of appeals, 

agency decision whether to comply with subpoena in ongoing litigation was not). 

Third, Hassan argues that “the relevant portions of 2 U.S.C. § 437f” dealing 

with the Matching Payment Act are “very much part of the MPA.” Resp. at 2. 

This argument is baseless. The Commission’s advisory opinion authority is firmly 

planted in FECA, whereas section 9041(a) is in the Matching Payment Act. In 

support of his flawed view, Hassan argues that under the Commission’s theory a 

party facing an enforcement action “would not be able to invoke the defense in 

2 U.S.C.§ 437f” unless it were part of the Matching Payment Act. Resp. at 2. 

However, the statute explicitly addresses the circumstance Hassan describes; its 

plain language makes clear that the defense provision applies to both “this Act” 

(FECA) and “chapter 96 of Title 26,” i.e., the Matching Payment Act. 2 U.S.C. 

§ 437f(c)(2). In contrast, the jurisdictional provision Hassan relies upon, 26 U.S.C. 

§ 9041, has no similar language incorporating into the Matching Payment Act the 

power to issue and rely upon advisory opinions established in FECA. 

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Fourth, Hassan asserts that “the FEC has the implied power to issue opinions 

and rulings under the [Matching Payment Act] with or without 2 U.S.C. § 437f.” 

Resp. at 2. Regardless of whether the implied power Hassan describes exists — he 

cites no support for this implied authority — it is clear that the Commission was in 

fact exercising its explicit authority under 2 U.S.C. § 437f. The Commission said 

so in the advisory opinion itself. FEC Advisory Op. 2011-15 (“AO”) at 6, 

http://saos.nictusa.com/saos/searchao?AONUMBER=2011-15. 

Fifth, Hassan argues that since the main purpose of review is to correct 

actions that are unauthorized or contrary to law, “it has to be that review [is] in this 

Court of Appeals pursuant to 26 U.S.C. § 9041(a)” (Resp. at 3). But just because 

judicial review is available to correct agency errors does not mean this Court has 

jurisdiction in the first instance. Instead, this Court can exercise its traditional 

appellate power in the normal course following district court review. “The ‘federal 

question’ jurisdiction of the court of appeals . . . may be invoked only after a 

district court has issued an appealable order.” Five Flags Pipe Line, 854 F.2d at 

1439-1440 (citations omitted). This Court has rejected policy arguments, like 

those advanced by Hassan, that argue for jurisdiction untethered from specific 

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statutory authority, “no matter how compelling the policy reasons for doing so.” 

Id. at 1441.3

 

 Finally, Hassan questions the congressional judgment that only the 

Commission’s quasi-judicial decision-making under the Matching Payment Act, 

which involves extensive fact development, is appropriate for direct appellate 

review. Resp. at 3-4. His argument extrapolates from the circumstances of his 

own particular case, which may not be representative of issues raised in other 

advisory opinions.4

 In any event, the circumstances of this case have nothing to do 

with the general congressional judgment as to where judicial review should lie in 

the first instance. Congress’s decision to limit direct appellate review to quasiadjudicatory repayment and certification decisions makes sense given the record 

 

3 Hassan inaccurately contends (at 4) that the Commission argued that issues 

in the Bluman v. FEC case should have been divided between a three-judge district 

court and this Court sitting en banc. In fact, the dispute in that case was whether 

the case would be heard by a single-judge or three-judge district court, and the 

Commission contended that the entire case should be heard by a single-judge 

court. See FEC’s Opp. to Pls’. App. For Three-Judge Ct., Bluman v. FEC, No. 10-

1766, Docket No. 10, (D.D.C. Nov. 5, 2010), 

http://www.fec.gov/law/litigation/bluman_FEC_opp_to_app_for_3_judge_ct.pdf. 

The court divided the case, finding that part of it should be heard by a three-judge 

court. See Mem. Op. Granting in Part and Denying in Part the Pls’. App. for a 

Three-Judge Ct., Bluman v. FEC, No. 10-1766, Docket No. 18 (D.D.C. Jan. 7, 

2011), http://www.fec.gov/law/litigation/bluman_dc_memo_opinion.pdf. 

4 Indeed, even in this case fact development regarding standing could be 

necessary because of the threshold requirements under the Matching Payment Act 

to qualify for matching funds (e.g., a showing that Hassan has raised $5,000 raised 

in 20 states). See Mot. at 12-13 n.4. The district courts are better situated to 

oversee any such record development. 

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development that occurs in those administrative proceedings, and the plain 

language of 2 U.S.C. § 437f and 26 U.S.C. § 9041 makes clear that Hassan cannot 

bring this case to this Court for initial review. 

Accordingly, this Court should grant the Commission’s Motion to Dismiss 

the Petition for Lack of Jurisdiction. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

December 1, 2011 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

 

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CERTIFICATE OF SERVICE 

 I certify that on this 1st day of December 2011, I caused to be filed 

electronically using this Court’s ECF system and sent via the ECF electronic 

notification system a true copy of the Federal Election Commission’s Reply in 

Support of its Motion to Dismiss Petition for Lack of Jurisdiction on the following 

counsel: 

Abdul K. Hassan, 

215-28 Hillside Avenue 

Queens Village, NY 11427 

December 1, 2011 /s/ Greg J. Mueller

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

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