1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES 

1401 New York Ave., NW 

Ste. 1200 

Washington, DC 20005, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

NOTICE OF JOINDER AND SUPPLEMENTATION OF 

FEDERAL ELECTION COMMISSION’S PARTIAL MOTION TO DISMISS AND 

MEMORANDUM IN SUPPORT THEREOF 

 Crossroads Grassroots Policy Strategies (“Crossroads GPS”) respectfully files this Notice 

of Joinder and Supplementation of the Federal Election Commission’s (“Commission” or 

“FEC”) Partial Motion to Dismiss, pursuant to the Court’s April 29, 2016 Order granting 

Plaintiffs' Consent Motion to Modify the Briefing Schedule on the same. 

 Crossroads GPS joins the FEC’s Partial Motion to Dismiss Claim Two of Plaintiffs’ 

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for the reasons set forth in the 

FEC’s Motion and memorandum in support thereof. 

 In addition, pursuant to Federal Rule of Civil Procedure 12(b)(6), Crossroads GPS hereby 

moves for an order dismissing the portions of Plaintiffs’ Claims One and Three, and, in the event 

Claim Two is not dismissed in its entirety, the portion of Claim Two that seek relief pursuant to 

13984587.1

Case 1:16-cv-00259-BAH Document 17 Filed 05/16/16 Page 1 of 5
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the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, all of which fail to state a claim 

upon which relief can be granted. The Federal Election Campaign Act, as amended ("FECA" or 

"Act"), 52 U.S.C. § 30109(a)(8), provides the exclusive avenue for review of the FEC's dismissal 

of the administrative complaint that Plaintiffs challenge in this action and precludes judicial 

review of the same under the APA. 

 A proposed order accompanies this motion. 

I. STANDARD OF REVIEW 

 Dismissal of a complaint is appropriate where, assuming the factual allegations are true 

and all reasonable inferences are construed in a plaintiff’s favor, the complaint nonetheless fails 

to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Nurriddin v. Bolden, 

2016 U.S. App. LEXIS 6174 (D.C. Cir. 2016) at *10 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009); Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014)). 

II. SECTION 30109 OF THE FECA PRECLUDES JUDICIAL REVIEW OF FEC 

 ENFORCEMENT DECISIONS UNDER THE APA. 

Judicial review of federal agency actions under the APA is available only where “there is 

no other adequate remedy in a court.” 5 U.S.C. § 704. A recent opinion and order issued by this 

Court involving a matter similar to this one, and including one of the identical Plaintiffs, 

established that, “[b]ecause FECA provides the exclusive avenue of judicial review for parties 

seeking to challenge FEC enforcement decisions, [Citizens for Responsibility and Ethics in 

Washington] may not challenge these decisions under the APA.” Citizens for Responsibility and 

Ethics in Washington, et al. v. FEC, No. 1:14-cv-01419-CRC (hereinafter, “CREW”), slip op. at 

7 (D. D.C. Aug. 13, 2015). That holding should apply in this matter as well. 

 In that other matter, as here, Plaintiff Citizens for Responsibility and Ethics in 

Washington (“CREW”) sought judicial review of the FEC’s dismissal of two administrative 

Case 1:16-cv-00259-BAH Document 17 Filed 05/16/16 Page 2 of 5
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complaints under both the FECA, 52 U.S.C. § 30109(a)(8), and the APA, 5 U.S.C. § 706, on the 

grounds that the agency’s dismissal was “arbitrary, capricious, an abuse of discretion, and 

contrary to law.” Compl. at 1, CREW (D. D.C. 2014). 

As this Court explained: 

APA review is not available when Congress has created another specific, 

“adequate remedy.” . . . 

Under the system of judicial review established by FECA, the Court can override 

the FEC’s decision to dismiss a complaint if “the dismissal was based on an 

‘impermissible interpretation of [FECA] . . . or was arbitrary or capricious, or an 

abuse of discretion.’” This alternative, comprehensive judicial review provision 

precludes review of FEC enforcement decisions under the APA. Because FECA 

includes a private cause of action, along with “a detailed mechanism for judicial 

consideration of particular issues at the behest of particular persons,” that remedy 

is the exclusive means to enforce the Act . . . 

Like any party aggrieved by FEC enforcement decisions, CREW may of course 

claim that the basis on which the FEC reached its decisions was arbitrary or 

unsound. But also like any aggrieved party, CREW’s exclusive remedy for its 

disagreement with the FEC’s rationale is to challenge those particular decisions 

under the judicial review provision of FECA. 

CREW, slip op. at 9-11 (D. D.C. Aug. 13, 2015) (internal citations and quotations omitted) 

(emphasis added). 

 Accordingly, this Court dismissed all of the portions of CREW’s complaint that sought 

relief pursuant to the APA. CREW (D. D.C. 2015) (order granting motion to dismiss). 

III. THE PORTIONS OF PLAINTIFFS’ COMPLAINT THAT SEEK RELIEF 

UNDER THE APA SHOULD BE DISMISSED. 

 Plaintiffs seek a declaratory order that the FEC acted "in violation of its statutory 

responsibilities under 52 U.S.C. § 30109(a)(8) and 5 U.S.C. § 706" in dismissing Plaintiffs' 

administrative complaint alleging that Crossroads GPS violated certain regulatory and statutory 

requirements for reporting independent expenditures – specifically, 11 C.F.R. § 109.10 (Claim 

One), 52 U.S.C. § 30104(c)(2) (Claim Two), and 52 U.S.C. § 30104(c)(l) (Claim Three). 

Case 1:16-cv-00259-BAH Document 17 Filed 05/16/16 Page 3 of 5
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Compl. ¶¶ 111, 116, 118, 124, 126, and 131 (emphasis added). 

 Crossroads GPS moves to dismiss the portions of Plaintiffs' Claims One and Three, as 

well as the portion of Plaintiffs' Claim Two to the extent Claim Two is not dismissed in its 

entirety,1

 that are brought pursuant to the APA, 5 U.S.C. § 706. For the reasons set forth above, 

these portions of the Complaint fail to state a claim upon which relief can be granted. Fed. R. 

Civ. P. 12(b)(6). 

Respectfully submitted, 

May 16, 2016 

/s/ Thomas W. Kirby. 

Michael E. Toner (D.C. Bar No. 439707) 

E-mail: mtoner@wileyrein.com 

Thomas W. Kirby (D.C. Bar No. 915231) 

E-mail: tkirby@wileyrein.com 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

Strategies 

 

                                                            

1

 Plaintiffs' Claim Two improperly attempts to bootstrap to a challenge of the FEC's dismissal of an administrative 

complaint a time-barred challenge to an FEC regulation that Plaintiffs seek this Court to declare is "unlawful and 

invalid." Compl. ¶ 124. Crossroads GPS joins the FEC's Partial Motion to Dismiss Claim Two in its entirety for 

the reasons set forth in the FEC's Memorandum of Points and Authorities in support thereof. 

Case 1:16-cv-00259-BAH Document 17 Filed 05/16/16 Page 4 of 5
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CERTIFICATE OF SERVICE 

 I hereby certify that, on May 16, 2016, I served a true and correct copy of Crossroads 

Grassroots Policy Strategies’ Notice of Joinder and Supplementation of Federal Election 

Commission’s Partial Motion to Dismiss and Memorandum in Support Thereof, by means of 

electronic filing, on: 

Daniel A. Petalas 

Lisa J. Stevenson 

Kevin Deeley 

Harry J. Summers 

Seth Nesin 

Federal Election Commission 

Office of General Counsel 

999 E Street, NW 

Washington, DC 20463 

Stuart C. McPhail 

Adam J. Rappaport 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

/s/ Thomas W. Kirby 

 Thomas W. Kirby 

Case 1:16-cv-00259-BAH Document 17 Filed 05/16/16 Page 5 of 5