UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-259 (BAH) 

 ) 

 v. ) 

 ) PARTIAL MOTION 

FEDERAL ELECTION COMMISSION, ) TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S PARTIAL MOTION TO DISMISS 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Federal Election Commission 

(“Commission” or “FEC”) hereby moves for an order dismissing Claim Two of plaintiffs’ 

complaint, challenge the lawfulness of 11 C.F.R. § 109.10(e)(1)(vi) pursuant to the 

Administrative Procedure Act, 5 U.S.C. § 706. Plaintiffs’ challenge to that regulation regarding 

disclosure of certain information related to independent expenditures under the Federal Election 

Campaign Act (“FECA”) is barred by the six-year statute of limitations at 28 U.S.C. § 2401(a). 

A supporting memorandum and a proposed order accompany this motion.1

 

1

 The Federal Election Commission (Commission) has historically voted by a majority 

vote (pursuant to 52 U.S.C. §§ 30106(c) and 30107(a)(6)) to authorize an appearance by the 

Office of General Counsel (OGC) on behalf of the Commission in a suit commenced pursuant to 

52 U.S.C. § 30109(a)(8). There are, however, two general categories of cases that may come 

before a court in which there are insufficient votes to pursue a matter arising from an 

administrative complaint. In the first category of cases, litigation is commenced against the 

Commission after it does not approve a recommendation by OGC to find “reason to believe” that 

a violation of the FECA or of its regulations occurred, and the file was consequently closed. 52 

U.S.C. § 30109(a)(8). In the second category of cases, the litigation is commenced against the 

Commission after OGC recommends dismissing the matter, and the Commission closes the file 

after three or more Commissioners approve OGC’s recommendation or there are otherwise three 

or fewer Commissioners voting to find reason to believe. In both instances, the reason for the 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 1 of 20
2 

Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

dpetalas@fec.gov hsummers@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) s/ Seth Nesin 

Deputy General Counsel – Law Seth Nesin 

lstevenson@fec.gov Attorney 

snesin@fec.gov 

Kevin Deeley 

Acting Associate General Counsel FOR THE DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

April 19, 2016 Washington, DC 20463 

 (202) 694-1650 

 

inaction of the Commission is that there were not four or more Commissioners’ votes to find 

“reason to believe” regarding the allegations in the administrative complaint. 

 Judicial review of the FEC dismissal of an administrative complaint requires the Court 

to examine the agency’s reasoning as expressed by Commissioners or, in some circumstances, by 

OGC. See Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987). 

In the first category of cases described above, the court must be supplied with a “statement of 

reasons” of those Commissioners who voted against, or abstained from voting for, the OGC 

recommendation, who the court has called the “controlling group.” Id.; FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“[W]hen the Commission deadlocks 

3-3 and so dismisses a complaint, that dismissal, like any other, is judicially reviewable under 

Section [30109(a)(8)] . . . . [T]o make judicial review a meaningful exercise, the three 

Commissioners who voted to dismiss must provide a statement of their reasons for so voting. 

Since those Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency’s reasons for acting as it did.”); Common Cause v. FEC, 

655 F. Supp. 619 (D.D.C. 1986), rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988). 

 In the second category of cases described above, any member or members of the group 

of Commissioners who approve OGC’s dismissal recommendation may issue their own 

statement(s) of reasons to provide the basis for his or her action. If one or more members who 

supported dismissal do not file a statement containing the basis of his or her action, the rationale 

provided in OGC’s report shall be among those considered by the Court. See FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 38 & n.19 (1981) (staff report may provide a basis 

for the Commission’s action). Although the views of the Commissioners who voted to pursue 

enforcement are not defended by OGC, their statements of reasons are made part of the 

administrative record as long as they are filed by the time the record is certified, and when filed 

shall be available for the Court’s consideration. 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 2 of 20
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-259 (BAH) 

 ) 

 v. ) 

 ) PARTIAL MOTION 

FEDERAL ELECTION COMMISSION, ) TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS 

Daniel A. Petalas (D.C. Bar No. 467908) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

dpetalas@fec.gov hsummers@fec.gov 

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

Deputy General Counsel – Law Attorney 

lstevenson@fec.gov snesin@fec.gov 

Kevin Deeley FOR THE DEFENDANT 

Acting Associate General Counsel FEDERAL ELECTION COMMISSION 

kdeeley@fec.gov 999 E Street NW 

Washington, DC 20463 

April 19, 2016 (202) 694-1650 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 3 of 20
i 

TABLE OF CONTENTS 

 

 Page 

I. BACKGROUND ...........................................................................................................1 

A. The Parties .........................................................................................................1 

B. Promulgation of 11 C.F.R. § 109.10(e)(1)(vi) ...................................................2 

C. CREW’s Administrative Complaint and Proceedings Before the FEC ............3

D. Plaintiffs’ Court Complaint ................................................................................4

II. ARGUMENT .................................................................................................................5

A. Standard of Review ............................................................................................5 

B. The Court Lacks Jurisdiction to Declare 11 C.F.R. § 109.10(e)(1)(vi) 

Contrary to Law Because Plaintiffs’ Challenge Is Untimely .............................6 

1. Plaintiffs’ Challenge to 11 C.F.R. § 109.10(e)(1)(vi) Is Barred 

 Because It Has Been More Than Six Years Since the Regulation 

 Was Issued. ............................................................................................6 

2. Plaintiffs Have Not Petitioned for Rulemaking or Participated 

 in Any Intervening FEC Rulemaking Action ........................................7 

3. Section 30109(a)(8) Provides Jurisdiction to Challenge FEC 

 Enforcement Decisions and Cannot Be Used As an End Run 

 Around the APA Procedures for Challenging a Regulation ................10 

III. CONCLUSION ............................................................................................................12 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 4 of 20
ii 

TABLE OF AUTHORITIES 

Cases 

Action for Children’s Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977) .................................9 

Akins v. FEC, 146 F.3d 1049 (D.C. Cir. 1998) ........................................................................11

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004) .......................................................................5 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................6

Commc’ns Workers of Am. v. Am. Tel. & Tel. Co, 40 F.3d 426 (D.C. Cir. 1994) .....................9 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................10

Cont’l Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444 (D.C. Cir. 1988)..............................9

Ctr. for Biological Diversity v. Jackson, 815 F. Supp. 2d 85 (D.D.C. 2011) ...........................5

Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442 (D.C. Cir. 1994) ........................6

FEC v. Akins, 524 U.S. 11 (1998) ............................................................................................10

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ........................4

Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) ....................................................................5

Jones v. Bd. of Governors of Fed. Reserve Sys., 79 F.3d 1168 (D.C. Cir. 1996) .....................8 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ................................................................11

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 

507 U.S. 163 (1993) .......................................................................................................5

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).........................................................................5

Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003) .........................................................5

Midwater Trawlers Coop. v. Mosbacher, 727 F. Supp. 12 (D.D.C. 1989)................................9

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209 (D.C. Cir. 2013) .........................................7

NLRB Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987) ..............................................................7

P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008) ........................6

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 5 of 20
iii 

Prof’l Drivers Council v. Bureau of Motor Carrier Safety, 

706 F.2d 1216 (D.C. Cir. 1983) .....................................................................................7

SEC v. Chenery Corp., 318 U.S. 80 (1943) .............................................................................11

Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983) .........................................................................8

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987) ............................................7

Tesoro Ref. and Mktg. Co. v. FERC, 552 F.3d 868 (D.C. Cir. 2009) ..................................9, 10

Wash. Ass’n for Television and Children v. FCC, 712 F.2d 677 (D.C. Cir. 1983) ...................9 

Statutes and Regulations 

5 U.S.C. § 702 ............................................................................................................................8 

5 U.S.C. § 706 ......................................................................................................................1, 12 

5 U.S.C. § 706(2) .......................................................................................................................4 

26 U.S.C. § 501(c)(3) .................................................................................................................2 

28 U.S.C. § 2401 .......................................................................................................................6 

28 U.S.C. § 2401(a) ....................................................................................................1, 6, 7, 11 

52 U.S.C. § 30104 ......................................................................................................................3 

52 U.S.C. § 30104(c)(2) (formerly 2 U.S.C. § 434(c)(2)) .....................................................2, 5 

 52 U.S.C. § 30106 .....................................................................................................................1 

52 U.S.C. § 30106(b)(1) ........................................................................................................1, 2 

52 U.S.C. § 30106(c) .................................................................................................................3 

52 U.S.C. § 30107 ......................................................................................................................1 

52 U.S.C. § 30107(a)(8) .............................................................................................................1 

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

52 U.S.C. § 30109(a)(2) .........................................................................................................1, 3 

52 U.S.C. § 30109(a)(6) .............................................................................................................2 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 6 of 20
iv 

52 U.S.C. § 30109(a)(8) ...................................................................................................1, 4, 10 

52 U.S.C. § 30109(a)(8)(A) ...........................................................................................4, 10, 11

52 U.S.C. § 30109(a)(8)(C) .....................................................................................................10 

52 U.S.C. § 30111(a)(8) .............................................................................................................1 

11 C.F.R. § 109.2 (prior to 2003) ..............................................................................................2 

11 C.F.R. § 109.10 .....................................................................................................................3 

11 C.F.R. § 109.10(e)(1)(vi) ......................................................................1, 3, 4, 5, 6, 7, 11, 12 

11 C.F.R. § 111.4 .......................................................................................................................3 

Miscellaneous

FEC, Amendments to Federal Election Campaign Act of 1971, 

45 Fed. Reg. 15080 (Mar. 7, 1980) ................................................................................2 

FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 

68 Fed. Reg. 404, 416 (Jan. 3, 2003) .............................................................................3 

FEC, FEC Welcomes New Commissioners, Elects Vice Chairman 

and Approves Advisory Opinion (Oct. 31, 2013), 

http://www.fec.gov/press/press2013/news_releases/20131031release.shtml ..............10 

FEC, Rulemaking Petition: Independent Expenditure Reporting, 

76 Fed. Reg. 36000 (June 21, 2011) ..............................................................................8 

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

Federal Rule of Civil Procedure 12(b)(6) ..................................................................................5 

Petition for Rulemaking to Revise and Amend Regulations Relating to 

Disclosure of Independent Expenditures (Apr. 21, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=61143 ............................................... 7-8 

Comments of Benjamin Kerensa (July 21, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87889 .......................................8 

Comments of Brennan Center for Justice (Aug. 22, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87887 .......................................8 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 7 of 20
v 

Comments of Center for Competitive Politics (Aug. 22, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87888 .......................................8 

Comments of Citizens United (Aug. 22, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87886 .......................................8 

Certification (Dec. 16, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=114906 .....................................8 

Pub. L. No. 96-187, 93 Stat 1339 (Jan. 8, 1980) .......................................................................2 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 8 of 20
1 

Citizens for Responsibility and Ethics in Washington (“CREW”) and Nicholas Mezlak 

challenge the Federal Election Commission’s (“Commission” or “FEC”) dismissal of their 

administrative complaint alleging that Crossroads Grassroots Policy Strategies (“Crossroads 

GPS”) and several individuals violated the Federal Election Campaign Act (“FECA” or “Act”) 

and an FEC implementing regulation governing disclosure about contributors to entities making 

independent expenditures. Those causes of action, Claims One and Three of plaintiffs’ 

complaint, were timely filed in this Court pursuant to a judicial-review provision of FECA, 52 

U.S.C. § 30109(a)(8). But plaintiffs’ complaint also makes a claim for relief under the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 706, asking the Court to declare that the 

regulation itself, 11 C.F.R. § 109.10(e)(1)(vi), is invalid. (Compl. for Injunctive and Declaratory 

Relief (“Compl.”) ¶¶ 117-24, Requested Relief ¶ 3 (Doc. No. 1)). That regulation has been in 

place for more than 30 years. Plaintiffs’ challenge to it is consequently barred by the APA’s sixyear statute of limitations for challenging agency regulations at 28 U.S.C. § 2401(a) and the 

Court lacks jurisdiction to consider plaintiffs’ Claim Two. That claim must be dismissed 

pursuant to Federal Rule of Civil Procedure 12(b)(1). 

I. BACKGROUND 

A. The Parties 

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

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

U.S.C. §§ 30106, 30107. Congress authorized the Commission to “formulate policy” with 

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

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

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

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 9 of 20
2 

to initiate civil enforcement actions for violations of the Act in the United States district courts. 

Id. §§ 30106(b)(1), 30109(a)(6). 

 Plaintiff CREW “is a non-profit, non-partisan corporation organized under Section 

501(c)(3) of the Internal Revenue Code.” (Compl. ¶ 7.) CREW states that it “monitors the 

activities of those who run for federal office as well as those groups financially supporting 

candidates for office or advocating for or against their election” and “files complaints with the 

FEC when it discovers violations of the FECA.” (Id. ¶¶ 10-11.) Plaintiff Nicholas Mezlak states 

that he is “a citizen of the United States and a resident of the state of Ohio.” (Id. ¶ 17.)

B. Promulgation of 11 C.F.R. § 109.10(e)(1)(vi) 

In 1980, Congress amended FECA to provide, among other things, that persons other 

than political committees who spend funds over a certain threshold to make independent 

expenditures must file reports that include “the identification of each person who made a 

contribution in excess of $200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure.” See Pub. L. No. 96-187, 93 Stat 1339 (Jan. 

8, 1980) (amending provision then codified at 2 U.S.C. § 434(c)(2) (now 52 U.S.C. § 

30104(c)(2))). The Commission accordingly amended its disclosure regulation, then located at 

11 C.F.R. § 109.2, to “incorporate the changes set forth” in the statute. FEC, Amendments to 

Federal Election Campaign Act of 1971, 45 Fed. Reg. 15080, 15087 (Mar. 7, 1980). The 

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

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

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 10 of 20
3 

reported independent expenditure.” See 11 C.F.R. § 109.10(e)(1)(vi). Over the past 36 years, 

there has been no change to that requirement.1

 

C. CREW’s Administrative Complaint and Proceedings Before the FEC 

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

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

November 14, 2012, plaintiff CREW and two individuals filed an administrative complaint 

against Crossroads GPS and associated individuals alleging that Crossroads GPS had unlawfully 

failed to disclose its contributors in violation of 52 U.S.C. § 30104 and 11 C.F.R. § 109.10. 

(Compl. ¶ 55.) The administrative complaint was later supplemented to substitute plaintiff 

Nicholas Mezlak for one of the individual administrative complainants. (Id. ¶ 63.) Crossroads 

GPS and the other respondents responded to the administrative complaint on January 17, 2013. 

(Id. ¶ 56.) 

 FECA requires that, after reviewing an administrative complaint and any responses filed 

by the respondents, the Commission is to consider whether there is “reason to believe” that 

FECA has been violated. 52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six 

Commissioners vote to find such reason to believe, the Commission may investigate the alleged 

violation; otherwise, the Commission dismisses the administrative complaint. Id. §§ 30106(c), 

30109(a)(2). In this case, the Commission’s Office of General Counsel provided the 

Commission with a First General Counsel’s Report that recommended a finding of “no reason to 

believe” for violations alleged in the administrative complaint and recommended that the 

 

1

 In 2003, the regulation was moved from section 109.2 to section 109.10 and a portion of 

the regulation plaintiffs do not challenge regarding when and how reports should be filed was 

slightly modified. See FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 

404, 416 (Jan. 3, 2003). 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 11 of 20
4 

Commission exercise its prosecutorial discretion to dismiss an arguably additional question 

presented. (Compl. ¶ 68.) The Commission voted on November 17, 2015, and was evenly split 

three-to-three on whether to find reason to believe that Crossroads GPS violated the law. (Id. ¶ 

70.) As a result of that split vote, the Commission closed the file on the matter. (Id. ¶ 71.) 

 D. Plaintiffs’ Court Complaint 

 FECA provides administrative complainants with a mechanism for judicial review if 

the Commission determines that no violation has occurred or decides to dismiss the 

administrative complaint for some other reason. See 52 U.S.C. § 30109(a)(8)(A) (detailing the 

procedure for seeking judicial review of an administrative dismissal and the scope of such 

review). That judicial review is also available for FEC dismissals resulting from three-to-three 

votes. FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(“NRSC”) (“[A split vote] dismissal, like any other, is judicially reviewable under 

[§ 30109(a)(8)].” (citation omitted)). Plaintiffs brought this lawsuit in part pursuant to 

section 30109(a)(8)(A), contending that the Commission’s handling of their administrative 

complaint was arbitrary, capricious, an abuse of discretion, and contrary to law. (See Compl. ¶¶ 

110-16, 125-31.) Claims One and Three of plaintiffs’ complaint seek relief that genuinely relates 

to the agency’s dismissal of plaintiffs’ administrative complaint without opening an 

investigation. 

 In addition to the claims under section 30109(a)(8)(A), plaintiffs’ suit “further 

challenges a regulation promulgated by the FEC” (Compl. ¶ 1) and asks the Court to “[d]eclare 

that 11 C.F.R. § 109.10(e)(1)(vi) is contrary to law, arbitrary and capricious, and invalid” 

(Compl. Requested Relief ¶ 3). The challenge to the agency’s regulation is brought pursuant to 

the APA. (See id. ¶ 1 (citing 5 U.S.C. § 706(2)); id. ¶ 124 (citing 5 U.S.C. § 706).) In particular, 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 12 of 20
5 

Claim Two of plaintiffs’ complaint is directed at the lawfulness of the regulation. (See, e.g., id. ¶ 

119 (“the regulation is inconsistent with the plain language of the statute.”); id. ¶ 120 (“The FEC 

provided no explanation for drafting 11 C.F.R. § 109.10(e)(1)(vi) in a way that conflicts with 52 

U.S.C. § 30104(c)(2).”); id. ¶ 121 (“Because 11 C.F.R. § 109.10(e)(1)(vi) imposes a reporting 

obligation that conflicts with the one imposed by statute under the FECA, 11 C.F.R. § 

109.10(e)(1)(vi) is unlawful and invalid.”); id. ¶ 123 (“Because 11 C.F.R. § 109.10(e)(1)(vi) is 

without force and conflicts with the FECA, the OGC’s reliance on the standards imposed by that 

statute are arbitrary, capricious, an abuse of discretion, and contrary to law.”); id. ¶ 124 

(“Plaintiffs are therefore entitled to relief in the form of a declaratory order that . . . 11 C.F.R. § 

109.10(e)(1)(vi) is unlawful and invalid.”).) 

II. ARGUMENT 

A. Standard of Review 

 A motion for partial dismissal under Rule 12(b)(1) “presents a threshold challenge to a 

court’s jurisdiction.” Ctr. for Biological Diversity v. Jackson, 815 F. Supp. 2d 85, 89-90 (D.D.C. 

2011) (citing Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Plaintiffs bear the burden 

of establishing courts have jurisdiction where a defendant has moved to dismiss for lack of 

subject matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In 

evaluating the motion, courts accept as true the factual allegations in the complaint and all 

factual inferences favorable to plaintiffs. See Leatherman v. Tarrant Cnty. Narcotics 

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Barr v. Clinton, 370 F.3d 1196, 

1199 (D.C. Cir. 2004). However, courts give plaintiffs’ factual allegations closer scrutiny when 

resolving a Rule 12(b)(1) motion than a Rule 12(b)(6) motion, because subject matter 

jurisdiction focuses on a court’s power to hear the claim. See Macharia v. United States, 334 

F.3d 61, 64 (D.C. Cir. 2003). A claim must be dismissed “when the allegations in a complaint, 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 13 of 20
6 

however true, could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 

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

B. The Court Lacks Jurisdiction to Declare 11 C.F.R. § 109.10(e)(1)(vi) 

Contrary to Law Because Plaintiffs’ Challenge Is Untimely 

 The text of the regulation plaintiffs challenge was promulgated 36 years ago. But the 

statute of limitations applicable to an APA challenge to a regulation is six years. Where an 

agency regulation was promulgated at a time outside the limitations period, the regulation can 

generally be challenged only by filing a petition with the agency to change the regulation and, if 

the agency declines, challenging the agency’s decision not to act on the petition for rulemaking. 

Here, plaintiffs have not filed a petition with the FEC for a rulemaking to change the longstanding regulation they seek to invalidate, and they may not rely upon a rulemaking petition 

filed by someone else. Plaintiffs cannot use FECA’s provision for judicial review of agency 

enforcement proceedings to circumvent the statute of limitations that bars their regulatory 

challenge. 

1. Plaintiffs’ Challenge to 11 C.F.R. § 109.10(e)(1)(vi) Is Barred Because 

It Has Been More Than Six Years Since the Regulation Was Issued 

Plaintiffs’ APA claim is time-barred. FECA does not specify the appropriate statute of 

limitations to challenge a regulation promulgated by the Commission. Unless a different 

deadline is identified by statute, a challenge to an agency’s regulation constitutes a “civil action 

commenced against the United States.” 28 U.S.C. § 2401(a); P & V Enters. v. U.S. Army Corps 

of Eng’rs, 516 F.3d 1021, 1023 (D.C. Cir. 2008) (considering challenge to rulemaking as 

pursuant to 28 U.S.C. § 2401(a)). As a result, any such claim “shall be barred unless the 

complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a); 

Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994) (applying sixCase 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 14 of 20
7 

year statute of limitations contained in 28 U.S.C. § 2401 to challenge of agency action). This 

statute of limitations is not merely a claim processing rule, but is jurisdictional and therefore 

forecloses any time-barred claims. See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 218 

(D.C. Cir. 2013) (“The court lacks subject matter jurisdiction to hear a claim barred by section 

2401(a).”); Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987) (“§ 2401(a) is a 

jurisdictional condition attached to the government’s waiver of sovereign immunity, and as such 

must be strictly construed.”). 

 The regulation plaintiffs challenge, 11 C.F.R. § 109.10(e)(1)(vi), was promulgated by the 

FEC in 1980. (See supra p. 2.) Because plaintiffs’ challenge to the regulation was filed outside 

the six-year statute of limitations, this Court has no jurisdiction to consider it. 

2. Plaintiffs Have Not Petitioned for Rulemaking or Participated in Any 

Intervening FEC Rulemaking Action 

Regulations promulgated more than six years ago are not, of course, forever insulated 

from judicial review. The “method of obtaining judicial review of agency regulations once the 

limitations period has run is to petition the agency for amendment or rescission of the regulations 

and then to appeal the agency’s decision.” NLRB Union v. FLRA, 834 F.2d 191, 196 (D.C. Cir. 

1987); Prof’l Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1217-18, n. 2 

(D.C. Cir. 1983) (“This court has scrutinized regulations immune from direct review by 

reviewing the denial of a subsequent rulemaking petition which challenged the regulation on 

demonstrable grounds of substantive invalidity.”) (internal quotation marks and citation omitted). 

Plaintiffs in this case have not petitioned the FEC to amend 11 C.F.R. § 109.10(e)(1)(vi). 

In 2011, Congressman Chris Van Hollen did file a petition for rulemaking with the Commission 

to revise and amend 11 C.F.R. § 109.10(e)(1)(vi). See Petition for Rulemaking to Revise and 

Amend Regulations Relating to Disclosure of Independent Expenditures (Apr. 21, 2011), 

Case 1:16-cv-00259-BAH Document 12 Filed 04/19/16 Page 15 of 20
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http://sers.fec.gov/fosers/showpdf.htm?docid=61143. That petition argued that the “regulation is 

manifestly inconsistent with the statute.” Id. ¶ 6. In response to Congressman Van Hollen’s 

petition, the Commission issued a Notice of Availability and received four comments from the 

public. See FEC, Rulemaking Petition: Independent Expenditure Reporting, 76 Fed. Reg. 36000 

(June 21, 2011); Comments of Citizens United (Aug. 22, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87886; Comments of Brennan Center for Justice 

(Aug. 22, 2011), http://sers.fec.gov/fosers/showpdf.htm?docid=87887; Comments of Benjamin 

Kerensa (July 21, 2011), http://sers.fec.gov/fosers/showpdf.htm?docid=87889; Comments of 

Center for Competitive Politics (Aug. 22, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=87888. In December 2011, the Commission split 

three-to-three on whether to issue a Notice of Proposed Rulemaking on Van Hollen’s petition, 

and therefore no rulemaking was initiated. See Certification (Dec. 16, 2011), 

http://sers.fec.gov/fosers/showpdf.htm?docid=114906. Congressman Van Hollen did not 

challenge the Commission’s handling of his petition for rulemaking in court. 

Neither CREW nor Mr. Mezlak was a party to Congressman Van Hollen’s petition, nor 

did either comment on the Notice of Availability. And even if plaintiffs in this case were to 

amend their complaint now to challenge the FEC’s denial of Van Hollen’s petition in 2011, the 

Court would still lack jurisdiction to hear their claim. Judicial review under the APA is limited 

to those parties that are “suffering legal wrong because of agency action, or adversely affected or 

aggrieved by agency action.” See 5 U.S.C. § 702. The D.C. Circuit has “consistently interpreted 

the phrase ‘party aggrieved’ to require as a general matter that petitioners be parties to any 

proceedings before the agency preliminary to issuance of its order.” Jones v. Bd. of Governors 

of Fed. Reserve Sys., 79 F.3d 1168, 1170-71 (D.C. Cir. 1996) (quoting Simmons v. ICC, 716 F.2d 

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40, 42 (D.C. Cir. 1983)). Plaintiffs were not parties to the Van Hollen petition, nor did they 

comment or play any other role in the rulemaking proceeding, so they cannot base any claim to 

jurisdiction for their APA claim here on Van Hollen’s petition. 

In some instances, futility may excuse a failure to exhaust administrative procedures, but 

that is an extremely high standard that plaintiffs cannot meet in this case. The “futility 

exception” to exhaustion is “quite restricted” and “limited to situations ‘when resort to 

administrative remedies [would be] ‘clearly useless.’’” Tesoro Ref. and Mktg. Co. v. FERC, 552 

F.3d 868, 874 (D.C. Cir. 2009) (quoting Commc’ns Workers of Am. v. Am. Tel. & Tel. Co, 40 

F.3d 426, 432 (D.C. Cir. 1994) (other citations omitted)). Futility must be certain: 

In Communications Workers of America, we refused a futility exception 

when ERISA plan administrators had ‘consistently interpreted the’ 

relevant text ‘to deny . . . claims.’ * * * As we said there, ‘[e]ven if one 

were to concede that an unfavorable decision . . . was highly likely, that 

does not satisfy our strict futility standard requiring a certainty of an 

adverse decision.” 

Tesoro, 552 F.3d at 874 (citing Commc’n Workers, 40 F.3d at 432, 433); see also Cont’l Air 

Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1456 (D.C. Cir. 1988) (denying futility argument 

because “the agency might, had the point been raised, [have] taken such possibilities into account 

in the interpretive process”); Wash. Ass’n for Television and Children v. FCC, 712 F.2d 677, 682 

n. 9 (D.C. Cir. 1983) (“Futility should not lightly be presumed.”); Midwater Trawlers Coop. v. 

Mosbacher, 727 F. Supp. 12, 16 (D.D.C. 1989) (rejecting futility argument because a statement 

by the Secretary of Commerce indicating his views “does not indicate that the Secretary would 

reject a formal petition”). 

In this case, there is no “concrete indication” that petitioning the Commission for a 

rulemaking would be futile. Action for Children’s Television v. FCC, 564 F.2d 458, 469 (D.C. 

Cir. 1977) (requiring “concrete indication that reconsideration would have been futile”). The 

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denial of Congressman Van Hollen’s petition for rulemaking was more than four years ago in 

2011 and it is not obvious that a similar petition today would have the same result. Indeed, two 

of the agency’s current six Commissioners were not even members of the Commission at the 

time of the 2011 vote. See FEC, FEC Welcomes New Commissioners, Elects Vice Chairman and 

Approves Advisory Opinion (Oct. 31, 2013) 

http://www.fec.gov/press/press2013/news_releases/20131031release.shtml. And Commissioners 

could potentially conclude the legal and factual landscape has changed since Congressman Van 

Hollen’s petition was denied, as with any rulemaking proposal after five intervening years. See 

Tesoro Ref. & Mktg. Co., 552 F.3d at 874 (rejecting futility argument based in part on four-yearold agency ruling that had addressed a “similar, but not identical, issue” because some current 

arguments “could not have [been] made” at the time). 

3. Section 30109(a)(8) Provides Jurisdiction to Challenge FEC 

Enforcement Decisions and Cannot Be Used As an End Run Around 

the APA Procedures for Challenging a Regulation 

Plaintiffs cannot utilize FECA’s judicial review procedures to circumvent the statute of 

limitations imposed by the APA. Indeed, the power of a court reviewing the dismissal of an 

administrative complaint pursuant to 52 U.S.C. § 30109(a)(8)(A) “is limited.” Common Cause v. 

FEC, 842 F.2d 436, 448 (D.C. Cir. 1988). The reviewing court may only (a) declare that the 

Commission’s dismissal was “contrary to law” and (b) order the Commission to “conform with” 

the court’s declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C). A judicial order to 

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

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

Akins, 524 U.S. 11, 25 (1998) (explaining that even where a reviewing court finds that an FEC 

administrative dismissal was contrary to law, the Commission “(like a new jury after a mistrial) 

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

(citing SEC v. Chenery Corp., 318 U.S. 80 (1943))); Akins v. FEC, 146 F.3d 1049, 1050 (D.C. 

Cir. 1998) (“A holding that the FEC’s decision was invalid would leave the FEC free to reach the 

same decision on another ground.” (citation omitted)); see, e.g., La Botz v. FEC, 889 F. Supp. 2d 

51, 63 n.6 (D.D.C. 2012) (clarifying that a judicial determination that an FEC dismissal of an 

administrative complaint was contrary to law does not mean “that the FEC is required to reach a 

different conclusion on remand” and suggesting the “possib[ility]” that “the [dismissal] . . . could 

have been justified entirely by the FEC’s prosecutorial discretion, which is ‘considerable’” 

(citation omitted)).

 If CREW wishes to challenge the validity of 11 C.F.R. § 109.10(e)(1)(vi), the agency 

must first be permitted to address that challenge and CREW must file a petition for rulemaking 

with the FEC first. Only if the Commission were to deny such a petition would CREW have 

exhausted its administrative remedies and obtained the ability to pursue such a challenge. 

Claim Two of plaintiffs’ complaint is a challenge to an FEC regulation. Although it 

makes reference to the administrative process that resulted in the dismissal of CREW’s 

administrative complaint, it primarily argues that 11 C.F.R. § 109.10(e)(1)(vi) is unlawful and 

that the Court should strike it down. (See supra pp. 4-5.) Because such a challenge is timebarred by the APA, the Court should dismiss Claim Two in its entirety. Plaintiffs impermissibly 

attempt to embed a regulatory challenge within a section 30109(a)(8)(A) claim. Their request 

for declaratory relief regarding the regulation goes beyond the permitted relief for challenges to 

FEC administrative dismissals, explained above. (Compl. ¶ 124, Requested Relief ¶ 3.) 

Allowing the procedural shortcut in plaintiffs’ complaint would circumvent the statute of 

limitations Congress provided for suits against the United States. 28 U.S.C. § 2401(a). For the 

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purposes of this litigation, the Court should simply examine whether the Commission properly 

applied the regulation in addressing plaintiffs’ first and third claims, and not consider whether 

the regulation is valid. 

III. CONCLUSION 

For all the foregoing reasons, the Court should dismiss Claim Two of plaintiffs’ 

complaint, which challenges the lawfulness of 11 C.F.R. § 109.10(e)(1)(vi) pursuant to the 

Administrative Procedure Act, 5 U.S.C. § 706. 

Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

dpetalas@fec.gov hsummers@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) s/ Seth Nesin 

Deputy General Counsel – Law Seth Nesin 

lstevenson@fec.gov Attorney 

snesin@fec.gov 

Kevin Deeley 

Acting Associate General Counsel FOR THE DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

April 19, 2016 Washington, DC 20463 

 (202) 694-1650 

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