IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UTILITY WORKERS UNION OF AMERICA, LOCAL 

369, AFL-CIO,

PLAINTIFF,

Civil Action No. 09-CV-01022-JDB

V.

FEDERAL ELECTION COMMISSION,

DEFENDANT.

MEMORANDUM OF POINTS AND AUTHORITIES IN 

OPPOSITION TO FEDERAL ELECTION COMMISSION’S

MOTION TO DISMISS AND CONDITIONAL MOTION 

FOR LEAVE TO AMEND COMPLAINT

1. Pursuant to Rule 7(b) of the Local Rules of this Court, Plaintiff Utility Workers 

Union of America, Local 369 (“Local 369”) responds in opposition to the July 31, 2009, Motion 

of Defendant Federal Election Commission (“FEC”) to Dismiss Local 369’s June 1, 2009, 

“Complaint and Petition for Review”(“Complaint”) initiating this matter. For the reasons stated 

here, the FEC’s motion (“FEC Motion”), submitted pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure, should be denied.

2. Local 369 further requests leave, to the extent this Court deems necessary, to amend 

its Complaint, as discussed below.

3. Rule 12(b)(6) of the Federal Rules of Civil Procedure is invoked in instances in 

which a complainant has failed to state a claim upon which relief can be granted. The FEC has 

not contended that Local 369 has failed to state a claim upon which relief can be granted; 

instead, the FEC urges that the Complaint be dismissed because the FEC disagrees with Local 

369’s positions concerning the factual matters at issue. This disagreement, made plain by the 

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filing of the Complaint, is already known to the parties and this Court, and does not justify 

dismissal under Rule 12(b)(6). Whether or not the FEC is entitled to some degree of deference

(see, e.g., FEC Motion at 1, 9), it is not entitled to so much deference that any petition for review 

of its actions must be dismissed at the complaint stage. Such a result would write the judicial 

review provision out of the Federal Election Campaign Act (“FECA”), 2 U.S.C. § 437g(a)(8).

I. ARGUMENT

A. Local 369’s Complaint states a claim upon which relief can be granted

4. In its Complaint, Local 369 has alleged that the FEC erred in dismissing an 

administrative complaint filed by Local 369 asserting that the Covanta Energy Corporation 

(“Covanta”) is engaging in the solicitation of contributions to a Covanta-established federal 

political action committee (“PAC”). According to the Complaint, that solicitation was contained 

in a Covanta employee handbook, entitled “Policy of Business Conduct” (“Handbook”). See, 

e.g., Complaint ¶¶ 30-31.1

5. Whether the Covanta Handbook, in the context presented here, encourages 

employee-readers to support, or facilitates contributions to, the Covanta federal PAC is a 

disputed question of fact. For purposes of deciding this Motion, and as acknowledged by the 

FEC, this Court “accept[s] all factual allegations in the complaint as true”(Tellabs, Inc. v. Makor 

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also FEC Motion at 4). As such, the Court

should accept as true that the Covanta Handbook encourages or facilitates contributions to the 

Covanta federal PAC. See Walther v. FEC, 468 F. Supp. 1235, 1242 (D.D.C. 1979) (denying a 

motion to dismiss under Rule 12(b)(6) where “facts alleged by the plaintiff constitute a violation 

1

 The Handbook is Attachment A to the Complaint.

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[of FECA] and... plaintiff’s allegations of FEC inactivity describe administrative decisions 

which are contrary to law.”).

6. Stripped of factual disagreements, the FEC makes only two arguments potentially 

relevant to a Federal Rule of Civil Procedure 12(b)(6) motion. First, the FEC states that 

dismissal is warranted because the Complaint “fails to allege that the Commission acted 

unreasonably in dismissing Local 369’s underlying administrative complaint.” FEC Motion at 

1. The FEC’s contention does not hold water. Local 369 alleges that the FEC acted contrary to 

law (see, e.g., Complaint ¶¶ 6, 15), which is the statutory standard contained in 2 U.S.C. 

§ 437g(a)(8)(C).2To the extent necessary, an allegation of “unreasonableness” is contained in 

Local 369’s allegation that the FEC’s dismissal of the Complaint was contrary to law. However, 

if this Court decides that Local 369 should have explicitly alleged that the FEC’s dismissal of 

Local 369’s complaint was unreasonable, as well as unlawful, Local 369 respectfully requests 

leave to amend its complaint to include this (in our view already at least implicit) allegation.

7. Second, the FEC asserts that the Complaint is deficient in that it lacks an allegation 

that express language in the Covanta Handbook “actually invites such contributions.” FEC 

Motion at 11. The claim is not correct. Paragraph 30 of the Complaint contains the assertion 

that “language” of the Covanta Handbook “constitutes a solicitation by Covanta of employees 

outside of its ‘restricted class’ for Covanta’s federal PAC.”

8. The FEC ignores this assertion, and argues that Local 369 has instead premised its 

challenge on what the FEC believes is an inaccurate paraphrase of a passage in Covanta’s 

Handbook. Id. The basis for the FEC’s claim is at best unclear, in that it is not obvious why the 

paraphrase of “[c]ontributions to the PAC by eligible employees are voluntary” to “‘eligible 

2

 The reasonableness of the FEC’s decision may be relevant to this Court’s ultimate determination, if it adopts the 

FEC’s argument with respect to the appropriate standard of review, but it is not a fact that must be alleged (or 

Case 1:09-cv-01022-JDB Document 8 Filed 08/11/2009 Page 3 of 8
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employees’ may make voluntary contributions” constitutes a “mischaracterization.” If an 

“eligible” employee is an employee who may make contributions — and “eligible” can 

reasonably have no other meaning in this context — the two sentences convey identical 

information. 

9. It could be argued that the question of whether the Handbook language is a 

“solicitation” is a mixed question of law and fact, which involves the application of a legal 

standard to a particular set of facts. Were this to be found to be the case, it would afford no 

procedural protection to the FEC. As this Court has held, “[i]n resolving a Rule 12(b)(6) motion, 

the court must treat the pleading’s factual allegations — including mixed questions of law and 

fact — as true and draw all reasonable inferences therefrom in the pleader’s favor.” Command 

Consulting Group, LLC v. NeuralIQ, Inc., 2009 U.S. Dist. LEXIS 48082, at *5 (D.D.C., June 9, 

2009) (emphasis added).

10. The cases cited by the FEC in support of its Motion to Dismiss are almost 

universally cases decided after a hearing or on summary judgment. The exceptions (Bell Atl. 

Corp. v. Twombly, 550 U.S. 544 (2007); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 

308 (2007); Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006); and Hicks v. Ass’n of Am. Med. 

Colls., 503 F.Supp.2d 48 (D.D.C. 2007)) are cited only for general propositions regarding 

motions to dismiss, such as that dismissal under Rule 12(b)(6) is proper when a complaint fails 

to state a claim upon which relief can be granted, or whether attachments to the complaint may 

be considered by the Court. The cases do not support the FEC’s attempts to persuade this Court 

to consider the merits of the case in the context of a motion to dismiss under Rule 12(b)(6).

addressed) in a complaint. 

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B. The FEC’s arguments on the merits are both premature and misplaced

11. The bulk of the Motion consists of the dual claims that the FEC (a) is accorded 

substantial deference; and (b) acted reasonably in dismissing the Complaint. Regardless of 

whether these claims are well-founded, they do not belong in a motion to dismiss. As this Court 

made clear in a recent ruling, a Rule 12(b)(6) Motion deals only with the “legal sufficiency of a

claim.” Command Consulting Group, LLC v. NeuralIQ, Inc., 2009 U.S. Dist. LEXIS 48082, at 

*3.

12. To the extent the Court nonetheless chooses to consider the claims made in the 

FEC’s Motion, we note the statement that:

Local 369 does not purport to challenge the permissibility of the 

Commission’s interpretation of “solicitation” as excluding 

communications that neither encourage support of, nor facilitate 

contributions to, a corporation’s separate segregated fund. On the 

contrary, Local 369 invokes the Commission’s interpretation, 

asserting that “Covanta’s Handbook . . . encourages readers to 

support the Covanta PAC’s activities.”

FEC Motion at 10-11. The FEC’s observation is correct and unremarkable. The Complaint does 

not challenge the FEC’s “interpretation of ‘solicitation.’” Instead, the Complaint contends that 

the language of the Covanta Handbook itself falls within the parameters of what the FEC has 

determined in other contexts constitutes a “solicitation.”

13. The FEC argues that Local 369 has failed to demonstrate any connection between a 

solicitation of contributions to Covanta’s State PAC and the alleged solicitation of contributions 

to the Federal PAC at issue in the Complaint. FEC Motion at 13 (referencing Complaint ¶ 34). 

While presumably not relevant at this stage of the proceeding, Local 369 notes that there is no 

question that (a) Covanta solicits State PAC contributions from its employees; and (b) Covanta’s 

Handbook references all of its political activities, whether state or federal in nature. Local 369 is 

concerned that the presence of even permissible solicitations for State PAC contributions, in a 

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context in which Covanta references its state and federal political activities in the same passage 

in its employee Handbook, has the effect of inviting or encouraging employee support for all 

Covanta political activities. 

14. The FEC notes (Motion at 13-14) that there is nothing untoward in the statement in 

the Handbook that employees with questions concerning contributions should contact “our 

General Counsel.” Complaint ¶ 28 (quoting Handbook). The relevance of this statement is 

obvious: the statement invites employees to have a dialogue with a high-level Covanta official 

about making a contribution to Covanta’s political activities. 

CONCLUSION

15. Local 369’s Complaint states a claim upon which relief can be granted, and the FEC 

has failed to demonstrate the contrary.

16. For the foregoing reasons, Local 369 respectfully requests that this Court deny the 

FEC’s Motion to Dismiss Local 369’s Complaint.

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Respectfully submitted,

/s/ Scott H. Strauss 

Scott H. Strauss (D.C. Bar No. 358901)

Attorney for 

Local 369

Utility Workers Union of America, AFL-CIO

Law Offices of:

Spiegel & McDiarmid LLP

1333 New Hampshire Avenue, NW

Washington, DC 20036

(202) 879-4000

August 11, 2009

Case 1:09-cv-01022-JDB Document 8 Filed 08/11/2009 Page 7 of 8
CERTIFICATE OF SERVICE

I hereby certify that on August 11, 2009, I electronically filed the foregoing document 

through the CM/ECF system, which will send a notice of electronic filing to Erin R. Chlopak.

Dated on this 11th day of August, 2009. 

Respectfully submitted,

/s/ Scott H. Strauss 

Scott H. Strauss (D.C. Bar No. 358901)

Attorney for 

Local 369, Utility Workers Union of America, 

AFL-CIO

Law Offices of:

Spiegel & McDiarmid LLP

1333 New Hampshire Avenue, NW

Washington, DC 20036

(202) 879-4000

Case 1:09-cv-01022-JDB Document 8 Filed 08/11/2009 Page 8 of 8