UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-1088 (RJL) 

 ) 

 v. ) 

 ) MOTION TO DISMISS 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S 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 plaintiffs’ complaint 

challenging under 52 U.S.C. § 30109(a)(8) the Commission’s dismissal of an administrative 

complaint. The plaintiffs lack standing to bring this action because they have suffered no Article 

III injury. A supporting memorandum of points and authorities 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 

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 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 1 of 31
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 

Associate General Counsel FOR THE DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

August 22, 2016 Washington, DC 20463 

 (202) 694-1650 

 

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.” 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-01088-RJL Document 10 Filed 08/22/16 Page 2 of 31
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-1088 (RJL) 

 ) 

 v. ) 

 ) MEMORANDUM IN SUPPORT 

FEDERAL ELECTION COMMISSION, ) OF MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS 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 

Associate General Counsel FEDERAL ELECTION COMMISSION 

kdeeley@fec.gov 999 E Street NW 

Washington, DC 20463 

August 22, 2016 (202) 694-1650 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 3 of 31
i 

TABLE OF CONTENTS 

 Page 

I. STATUTORY AND REGULATORY BACKGROUND .................................2 

A. The Federal Election Commission ..........................................................2 

B. FECA’s Prohibitions Against Corporate Contributions, Coercion 

of Campaign Contributions, and Contributions Made in the Name 

of Another ..............................................................................................3 

C. FECA’s Administrative Enforcement Process and Judicial-Review 

Standard .................................................................................................4 

II. FACTUAL BACKGROUND ............................................................................6 

III. STANDARD OF REVIEW ...............................................................................7 

IV. PLAINTIFFS LACK STANDING TO CHALLENGE THE 

DISMISSAL OF THEIR ADMINISTRATIVE COMPLAINT ........................7 

A. Plaintiffs’ Effort to “Get the Bad Guys” Is Not a Legally 

Cognizable Injury ...................................................................................8 

B. Plaintiffs Have Failed to Establish the Information They Allegedly 

Lack Would Be Useful in Voting .........................................................11 

C. CREW Suffers No Cognizable Injury Additionally Because It Is 

Not a Voter, Does Not Claim Any Voting Members, and Is Not 

Otherwise a Participant in Political Elections and Campaigns ............16 

D. CREW Lacks Standing for the Additional Reason that Its 

Programmatic Activities Are Not Directly and Adversely 

Affected by the Challenged Dismissal Decision ..................................17 

E. Plaintiffs’ Alleged Injury Is Neither Caused by the FECA 

Violations They Allege Nor Redressable by a Decision in Their 

Favor ....................................................................................................20 

V. CONCLUSION .................................................................................................22 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 4 of 31
ii 

TABLE OF AUTHORITIES 

Cases Page 

 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ..........................................................................19 

Alexis v. District of Columbia, 44 F. Supp. 2d 331 (D.D.C. 1999) ...........................................7 

Alliance for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004) ................................12, 16 

Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000) ..................................................8

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987)..........................................................8

Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) ................................... 8-9 

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................7 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................7 

ASPCA v. Feld Entm’t, Inc., 659 F.3d 13 (D.C. Cir. 2011) .......................................................9

Citizens for Responsibility and Ethics in Washington (“CREW”) v. FEC, 

 475 F.3d 337 (D.C. Cir. 2007) .................................................................................5, 10, 17

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011) ..................................................................10 

CREW v. FEC, 401 F. Supp. 2d 115 (D.D.C. 2005) ........................................10, 16, 17, 18, 19 

CREW v. U.S. Dep’t of the Treasury, IRS, 21 F. Supp. 3d 25 (D.D.C. 2014) ...........................9 

Citizens United v. FEC, 558 U.S. 310 (2010) ......................................................................3, 19

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ............................... 1-2, 10, 11, 12, 18

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................5

Diamond v. Charles, 476 U.S. 54 (1986) ................................................................................17 

FEC v. Akins, 524 U.S. 11 (1998) ......................................................................9, 12, 15, 19, 21 

FEC v. Beaumont, 539 U.S. 146 (2003) ....................................................................................3 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ....................................5 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .........................5 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 5 of 31
iii 

Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22 (D.D.C. 2006) ........................7 

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 

 528 U.S. 167 (2000) .............................................................................................................8 

Hagelin v. FEC, 332 F. Supp. 2d 71 (D.D.C. 2004) ................................................................22 

Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) .............................................17 

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977) ..........................................18 

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ................................10, 11, 16 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..................................................................22 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ................................................................21 

Linda R.S. v. Richard D., 410 U.S. 614 (1973) .........................................................................8 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..........................................................8, 11 

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................19 

Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995) ..................17, 18 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ..............................................................................6 

Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990)................................................17 

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013) ................................................................11 

Warth v. Seldin, 422 U.S. 490 (1975) ........................................................................................8 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ................................................2, 8, 10, 11 

Zivotofsky v. Sec’y of State, 444 F.3d 614 (D.C. Cir. 2006) ......................................................9

Statutes and Regulations 

26 U.S.C. § 501(c)(3) ...............................................................................................................17 

52 U.S.C. § 30101(11) ...............................................................................................................3 

52 U.S.C. § 30104 ......................................................................................................................9 

52 U.S.C. § 30106 ......................................................................................................................2 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 6 of 31
iv 

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

52 U.S.C. § 30106(c) .............................................................................................................4, 5 

52 U.S.C. § 30107 ......................................................................................................................2 

52 U.S.C. § 30107(a)(8) .............................................................................................................2 

52 U.S.C. § 30109(a)(1) .........................................................................................................2, 4 

52 U.S.C. § 30109(a)(2) .....................................................................................................2, 4, 7 

52 U.S.C. § 30109(a)(4)(A)(i) ...................................................................................................4 

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

52 U.S.C. § 30109(a)(6)(A) ...................................................................................................4, 5 

52 U.S.C. § 30109(a)(8) .............................................................................................1, 6, 11, 12 

52 U.S.C. § 30109(a)(8)(A) .......................................................................................................5 

52 U.S.C. § 30109(a)(8)(C) .................................................................................................6, 21 

52 U.S.C. § 30109(a)(12) ...........................................................................................................4 

52 U.S.C. § 30111(a)(8) .............................................................................................................2 

52 U.S.C. § 30118 ......................................................................................................................4 

52 U.S.C. § 30118(a) .................................................................................................................3 

52 U.S.C. § 30118(b)(2)(C) .......................................................................................................3 

52 U.S.C. § 30118(b)(3) ............................................................................................................3 

52 U.S.C. § 30118(b)(3)(A) .......................................................................................................3 

52 U.S.C. § 30122 ..................................................................................................................3, 9 

11 C.F.R. § 103.3 .......................................................................................................................9 

11 C.F.R. § 110.4(b)(2)(i) ......................................................................................................3, 9 

11 C.F.R. § 110.4(b)(2)(ii) .........................................................................................................3 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 7 of 31
v 

11 C.F.R. § 111.4 .......................................................................................................................4 

26 C.F.R. § 1.501(c)(3)-1.........................................................................................................17 

Miscellaneous 

Conciliation Agreement, In the Matter of ACA Int’l, et. al., MUR 6922, 

http://eqs.fec.gov/eqsdocsMUR/15044376234.pdf .....................................................21 

Conciliation Agreement, In the Matter of DNC Services Corp., et al., MUR 4909, 

http://eqs.fec.gov/eqsdocsMUR/00000536.pdf ...........................................................20 

Conciliation Agreement, In the Matter of Edwards for President, et al., MUR 5366, 

http://eqs.fec.gov/eqsdocsMUR/000054C0.pdf ...........................................................21 

Conciliation Agreement, In the Matter of Friends of Maurice Hinchey, et al., MUR 4843, 

http://eqs.fec.gov/eqsdocsMUR/000010D6.pdf...........................................................20 

Conciliation Agreement, In the Matter of Habie, et al., MUR 4646, 

http://eqs.fec.gov/eqsdocsMUR/0000192D.pdf...........................................................20 

Conciliation Agreement, In the Matter of Int’l Ass’n of Machinists, et al., MUR 5386, 

http://eqs.fec.gov/eqsdocsMUR/00004B68.pdf ...........................................................21 

Conciliation Agreement, In the Matter of Jamie Jacob Morgan, MUR 5358, 

http://eqs.fec.gov/eqsdocsMUR/00005C11.pdf ..................................................... 20-21 

Conciliation Agreement, In the Matter of Nat’l Air Transp. Ass’n, et al., MUR 6889, 

http://eqs.fec.gov/eqsdocsMUR/15044371751.pdf .....................................................21 

Conciliation Agreement, In the Matter of Walt Roberts for Congress, MUR 4818, 

http://eqs.fec.gov/eqsdocsMUR/00001618.pdf ...........................................................20 

Murray Energy PAC Report of Receipts and Disbursements, 

http://docquery.fec.gov/cgi-bin/fecimg/?_201607159020498160+0 ..........................15 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 8 of 31
1 

Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and Noah 

Bookbinder lack Article III standing to obtain review of the Federal Election Commission’s 

(“Commission” or “FEC”) dismissal of their administrative complaint alleging that Murray 

Energy Corporation (“Murray Energy”), its separate segregated fund (or “PAC”), and associated 

individuals violated the Federal Election Campaign Act (“FECA” or “Act”). (Compl. for 

Injunctive and Declaratory Relief (“Compl.”) ¶ 1 (Docket No. 1).) To maintain such a claim 

under the narrow judicial review provision at 52 U.S.C. § 30109(a)(8), a complainant must have 

suffered a legally cognizable injury, such as an informational one, stemming from the dismissal 

of its administrative complaint. A mere desire for more information about whether and how 

FECA has been violated is insufficient. In this case, plaintiffs did not ask the Commission to 

find that the respondents in the administrative process had committed any reporting violations. 

Instead, they have asked that the Commission address different violations involving coercion of 

employee contributions, contributions that had been made in the name of another, and prohibited 

corporate contributions. Plaintiffs have suffered no injury caused by these alleged violations. 

Furthermore, the only information plaintiffs seek concerns the scope of violations 

allegedly committed by Murray Energy and the other respondents in connection with alleged 

efforts to coerce already-reported employee contributions and reimburse them with corporate 

funds. Plaintiffs argue vaguely that this knowledge would help CREW in “advancing its 

ongoing mission of educating the public to ensure the public continues to have a vital voice in 

our political process and government decisions.” (Compl. ¶ 11.) But the complaint fails to show 

how knowledge that Murray Energy illegally coerced a particular employee into making a 

campaign contribution would provide plaintiffs with information that would be “useful in 

voting” by plaintiffs, as required to support informational standing. Common Cause v. FEC, 108 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 9 of 31
2 

F.3d 413, 418 (D.C. Cir. 1997). Plaintiffs are already aware that certain candidates had support 

from Murray Energy and associated persons, as that information is already publicly available in 

reports by the company’s PAC and others to the FEC. Thus, even plaintiffs’ reference to “false 

reporting” (Compl. ¶ 1) — a violation they have not alleged — amounts to a request that known 

contributions be re-labeled. And even if plaintiffs prevail and the Commission acts on the 

coercion and contribution violations they have actually alleged, the likelihood that a favorable 

decision would involve revised public disclosures and thus redress their purported injury is 

entirely speculative. Plaintiffs’ real goal appears to be “for the Commission to ‘get the bad 

guys,’ rather than disclose information,” but plaintiffs have “no standing to sue for such relief.” 

Common Cause, 108 F.3d at 418; Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001) (the 

government’s “alleged failure to ‘disclose’ that certain conduct is illegal by itself does not give 

rise to a constitutionally cognizable injury”). Plaintiffs’ complaint should be dismissed. 

I. STATUTORY AND REGULATORY BACKGROUND 

A. The Federal Election Commission 

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. §§ 30106-07. 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 to 

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

§§ 30106(b)(1), 30109(a)(6). 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 10 of 31
3 

B. FECA’s Prohibitions Against Corporate Contributions, Coercion of 

Campaign Contributions, and Contributions Made in the Name of Another 

FECA prohibits corporations from contributing their treasury funds to candidate 

committees and other federal political committees. 52 U.S.C. § 30118(a). Though corporate 

treasury funds may now permissibly be used to finance independent expenditures, see Citizens 

United v. FEC, 558 U.S. 310 (2010), the use of corporate treasury funds to make contributions to 

candidates remains prohibited. See generally FEC v. Beaumont, 539 U.S. 146 (2003). 

FECA does permit corporations to form separate segregated funds (“SSFs,” commonly 

known as “PACs”), which may make contributions using funds raised from certain persons 

affiliated with the corporation. 52 U.S.C. §§ 30118(b)(2)(C), (b)(3). SSFs are, however, barred 

from using funds that were “secured by physical force, job discrimination, financial reprisals, or 

the threat of force, job discrimination, or financial reprisals; . . . or other moneys required . . . as 

a condition of employment.” Id. § 30118(b)(3)(A). 

 The Act also prohibits the making of a contribution in the name of another. 52 U.S.C. § 

30122 (“No person shall make a contribution in the name of another person or knowingly permit 

his name to be used to effect such a contribution and no person shall knowingly accept a 

contribution made by one person in the name of another person.”)1

 This provision is 

independent from the Act’s disclosure requirements and source and amount limitations. 

Examples include making a contribution, all or part of which was provided by another, without 

disclosing the true source of the contributor to the recipient candidate or committee at the time 

the contribution is made, or making a contribution and attributing its source to another person 

who was not the contribution’s true source. See, e.g., 11 C.F.R. § 110.4(b)(2)(i)-(ii). Both the 

 

1

 The term “person” for purposes of the Act as well as this prohibition includes 

partnerships, corporations, and “any other organization or group of persons.” 52 U.S.C. 

§ 30101(11). 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 11 of 31
4 

Act and Commission regulations provide that a person who furnishes another with funds for the 

purpose of contributing to a candidate or committee makes the resulting contribution. As a 

result, a violation of the prohibition on making contributions in the name of another may also 

violate the source and amount restrictions of FECA, including the prohibition on corporate 

contributions, 52 U.S.C. § 30118. 

C. FECA’s Administrative Enforcement Process and Judicial-Review Standard 

 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. After 

reviewing the complaint and any response filed by the respondent, the Commission considers 

whether there is “reason to believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). Any 

investigation under this provision is confidential until the administrative process is complete. Id. 

§ 30109(a)(12). 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). 

 If the Commission votes to proceed with an investigation, it then must determine 

whether there is “probable cause” to believe that FECA has been violated. 52 U.S.C. 

§ 30109(a)(4)(A)(i). Like a reason-to-believe determination, a determination to find probable 

cause to believe that a violation of FECA has occurred requires an affirmative vote of at least 

four Commissioners. Id. §§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is 

statutorily required to attempt to remedy the violation informally and attempt to reach a 

conciliation agreement with the respondent. Id. § 30109(a)(4)(A)(i). If the Commission is 

unable to reach a conciliation agreement, FECA authorizes the agency to institute a de novo civil 

enforcement action in federal district court. Id. § 30109(a)(6)(A). Entering into a conciliation 

agreement or instituting a civil action each requires an affirmative vote of at least four 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 12 of 31
5 

Commissioners. Id. § 30106(c); 30109(a)(6)(A). 

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

FECA provides the complainant with a narrow cause of action for judicial review of the 

Commission’s dismissal decision. See 52 U.S.C. § 30109(a)(8)(A). That limited review applies 

equally to dismissals that result from an evenly divided vote. 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)). In such cases, 

judicial review is based on the statement of reasons issued by the Commissioners who voted to 

dismiss. Id. “[T]hose Commissioners constitute a controlling group for purposes of the 

[dismissal] decision,” because their “rationale necessarily states the agency’s reasons for acting 

as it did.” Id.

By statute, the judicial task in such an action “is limited.” Common Cause v. FEC, 842 

F.2d 436, 448 (D.C. Cir. 1988) (describing judicial review under section 30109(a)(8)). The 

Commission “has the ‘sole discretionary power’ to determine in the first instance whether or not 

a civil violation of the Act has occurred,” and “Congress wisely provided that the Commission’s 

dismissal of a complaint should be reversed only if ‘contrary to law.’” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (citations omitted); see Citizens for 

Responsibility & Ethics in Wash. v. FEC (“CREW”), 475 F.3d 337, 340 (D.C. Cir. 2007) 

(“[J]udicial review of the Commission’s refusal to act on complaints is limited to correcting 

errors of law.”). 

FECA also expressly limits the scope of relief available to a plaintiff challenging an FEC 

dismissal decision. The reviewing court may only (a) declare that the Commission’s dismissal 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 13 of 31
6 

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); see Perot v. FEC, 97 F.3d 553, 557-59 (D.C. Cir. 

1996). 

II. FACTUAL BACKGROUND 

According to the court complaint, “[p]laintiff CREW is a non-profit, non-partisan 

corporation . . . committed to protecting the rights of citizens to be informed about the activities 

of government officials, ensuring the integrity of government officials, protecting our political 

system against corruption, and reducing the influence of money in politics.” (Compl. ¶¶ 6-7.) 

The complaint states that plaintiff Noah Bookbinder, the executive director of CREW, “is a 

citizen of the United States and a registered voter and resident of the state of Maryland.” (Id. ¶ 

16.)

In this action under 52 U.S.C. § 30109(a)(8), plaintiffs challenge the Commission’s 

dismissal of an administrative complaint in which they alleged that Murray Energy, Murray 

Energy PAC, and associated individuals had unlawfully coerced Murray Energy employees to 

make contributions to the PAC and to federal candidates, and that Murray Energy had 

reimbursed such contributions through its bonus program, so that contributions reported to have 

been made by the employees were in fact being made by Murray Energy. (Compl. ¶¶ 29-40, 52.) 

The alleged FECA violations in the administrative complaint were “coercing employee 

donations, causing contributions to be made in the name of another and knowingly accepting 

such contributions, and using corporate funds to make contributions in connection with a federal 

election.” (Id. ¶ 40; see also In the Matter of Murray, et al., MUR 6661, Am. Compl. ¶¶ 14-19 

(Nov. 18, 2015), AR 199-200 (to be included in forthcoming appendix); 

http://eqs.fec.gov/eqsdocsMUR/16044394574.pdf.) 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 14 of 31
7 

On April 12, 2016, the Commission voted on recommendations of its General Counsel in 

this matter and, lacking the statutorily required four affirmative votes to find reason to believe 

that a FECA violation occurred, see 52 U.S.C. § 30109(a)(2), the Commission dismissed the 

administrative complaint. (Compl. ¶ 52.) Plaintiffs then filed this suit, claiming that the 

reasoning of the Commissioners who formed the controlling group was contrary to law. (Id.

¶¶ 55-59, 61-64.) 

III. STANDARD OF REVIEW 

Plaintiffs bear the burden of invoking this Court’s subject matter jurisdiction, including 

establishing that they have standing. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015), 

cert. denied, 136 S. Ct. 900 (2016). To survive the Commission’s motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(1), plaintiffs’ complaint “must contain sufficient factual 

matter, accepted as true, to ‘state a claim [of standing] that is plausible on its face.’” Arpaio, 797 

F.3d at 19 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

Although the Court must accept as true all of the plaintiff’s well-pled factual allegations and 

draw all reasonable inferences in favor of the plaintiff, the Court need not accept the plaintiff’s 

legal conclusions as true. See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 

1999). Also, this Court “may look beyond the allegations contained in the complaint” to 

“materials outside the pleadings” to determine whether plaintiffs can carry their burden of 

proving they have standing. Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 28-

29 (D.D.C. 2006) (internal quotation marks omitted). 

IV. PLAINTIFFS LACK STANDING TO CHALLENGE THE DISMISSAL OF 

THEIR ADMINISTRATIVE COMPLAINT 

This Court lacks jurisdiction over plaintiffs’ claims because the plaintiffs cannot 

demonstrate that they have Article III standing. In general, to demonstrate Article III standing a 

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8 

plaintiff must establish that: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and 

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 

traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-181 (2000) (citing Lujan v. 

Defs. Of Wildlife, 504 U.S. 555, 560-561 (1992)). Standing “focuses on the complaining party to 

determine ‘whether the litigant is entitled to have the court decide the merits of the dispute or of 

particular issues.’” Am. Legal Found. v. FCC, 808 F.2d 84, 88 (D.C. Cir. 1987) (quoting 

Warth v. Seldin, 422 U.S. 490, 498 (1975)). 

 A. Plaintiffs’ Effort to “Get the Bad Guys” Is Not a Legally Cognizable Injury 

 

Plaintiffs lack standing to pursue a determination that Murray Energy and its affiliates 

violated FECA through coerced employee donations, contributions in the name of another, and 

corporate contributions. What they are seeking is “a legal conclusion that carries certain law 

enforcement consequences” for others. Wertheimer, 268 F.3d at 1075. See Compl. ¶¶ 1-4. In 

such situations, where “a plaintiff’s asserted injury arises from the government’s allegedly 

unlawful regulation (or lack of regulation) of someone else,” standing is “substantially more 

difficult” to establish. Lujan, 504 U.S. at 562 (quotation marks omitted); see also Linda R.S. v. 

Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest 

in the prosecution or nonprosecution of another.”). Plaintiffs have not, and could not, establish it 

here. 

In limited circumstances, an injury for purposes of Article III standing can arise from a 

statute that has “explicitly created a right to information.” Am. Farm Bureau v. EPA, 121 F. 

Supp. 2d 84, 97 (D.D.C. 2000) (quoting Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 16 of 31
9 

(D.C. Cir. 1994)). “For a plaintiff to successfully claim standing based on an informational 

injury, he must allege that he is directly deprived of information that must be disclosed under a 

statute.” CREW v. U.S. Dep’t of the Treasury, IRS, 21 F. Supp. 3d 25, 32 (D.D.C. 2014); ASPCA 

v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (“For purposes of informational standing, a 

plaintiff ‘is injured-in-fact . . . because he did not get what the statute entitled him to receive.’”) 

(quoting Zivotofsky v. Sec’y of State, 444 F.3d 614, 618 (D.C. Cir. 2006)). 

FECA is, of course, a statute that explicitly requires disclosure and can be the source of 

an informational injury. See, e.g., FEC v. Akins, 524 U.S. 11 (1998). But none of the violations 

that plaintiffs allege involve directly depriving them of information for which FECA requires 

disclosure. Their claims involve the solicitation and making of contributions, not public 

disclosure. (Compl. ¶ 40; In the Matter of Murray, et al., MUR 6661, Am. Compl. ¶¶ 14-19 

(Nov. 18, 2015), AR 199-200.) To be sure, the prohibition on making contributions in the name 

of another furthers informational interests as a general matter and is an essential companion to 

the Act’s reporting requirements, but it does not itself require public reporting of any information 

for which plaintiffs could be said to have been “directly deprived.” CREW v. U.S. Dep’t of the 

Treasury, IRS, 21 F. Supp. 3d at 32. 52 U.S.C. § 30122 merely prohibits the making and 

accepting of contributions, and it is separate from FECA’s requirement that disclosure reports be 

filed, 52 U.S.C. § 30104. The Commission’s implementing regulation discusses examples of 

violations involving failing to provide information “to the recipient candidate or committee at the 

time the contribution is made,” not a disclosure report to the public. See 11 C.F.R. § 

110.4(b)(2)(i). Indeed, treasurers of recipient committees need not even deposit any unlawful 

contributions they detect, including contributions made in the name of another, during the ten 

days in which they are required to screen receipts. See 11 C.F.R. § 103.3. 

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 Moreover, if the Commission were to investigate plaintiffs’ allegations of unlawful 

contributions in the name of another, plaintiffs would not learn the identity of any donors of 

whom they are currently unaware. They already allege that Murray Energy is the true source of 

funds. (Compl. ¶¶ 3, 38-39.) Rather than missing information about the identity of donors, all 

that remains with respect to the violations plaintiffs allege is a legal determination of whether 

Murray Energy in fact made contributions in the name of another. That is insufficient to confer 

standing. Even if plaintiffs’ legal and factual allegations were correct, their desire “for the 

Commission to ‘get the bad guys’” is not a legally cognizable interest. Common Cause, 108 

F.3d at 418; CREW v. FEC, 401 F. Supp. 2d 115, 122 (D.D.C. 2005). “[T]he government’s 

alleged failure to ‘disclose’ that certain conduct is illegal by itself does not give rise to a 

constitutionally cognizable injury.” Wertheimer, 268 F.3d at 1074. 

Where the information that claimants purport to seek is already available to them, as with 

the identity of the purported true source of funds here, those claimants lack standing to bring 

their claims. See, e.g., Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 47 (D.D.C. 2003) 

(holding that a plaintiff who had alleged reporting violations regarding his own contributions to a 

candidate lacked standing because he was “already aware of the facts underlying his own alleged 

contributions” and his judicial-review action was unlikely to produce additional facts of which 

the plaintiff was not already knowledgeable); CREW v. FEC, 799 F. Supp. 2d 78, 89 (D.D.C. 

2011) (holding that plaintiffs lacked a cognizable informational injury where they failed to 

“allege any specific factual information . . . that [wa]s not already publicly available”); see also 

CREW, 475 F.3d at 339-40 (holding that plaintiffs lacked standing in part because “any citizen 

who wants to learn the details of the transaction . . . can do so by visiting the Commission’s 

website, which contains the [sought after] list and a good deal more”). 

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11 

Plaintiffs merely disagree with the legal analyses and conclusions in the Statement of 

Reasons issued by the controlling group of Commissioners, which is insufficient to establish 

their standing to bring this action. Courts have repeatedly emphasized that “an injury that occurs 

when a person is deprived of information that a law has been violated” is not legally cognizable. 

Judicial Watch, 293 F. Supp. 2d at 46; see Wertheimer, 268 F.3d at 1075 (holding that plaintiffs 

lacked standing to seek a legal determination that certain transactions constitute coordinated 

expenditures); Vroom v. FEC, 951 F. Supp. 2d 175, 178-79 (D.D.C. 2013) (holding that plaintiff 

lacked standing to seek a legal determination that certain political committees were affiliated). 

The D.C. Circuit has thus explicitly refused “[t]o hold that a plaintiff can establish injury in fact 

merely by alleging that he has been deprived of the knowledge as to whether a violation of 

[FECA] has occurred.” Common Cause, 108 F.3d at 418; see id. (explaining that such a holding 

“would be tantamount to recognizing a justiciable interest in the enforcement of the law”). 

Indeed, “[w]hile ‘Congress can create a legal right . . . the interference with which will create an 

Article III injury,’ Congress cannot, consistent with Article III, create standing by conferring 

‘upon all persons . . . an abstract, self-contained, noninstrumental ‘right’ to have the Executive 

observe the procedures required by law.’” Id. (internal quotation marks and citations omitted) 

(quoting Lujan, 504 U.S. at 573). Plaintiffs’ disagreement with the controlling group of 

Commissioners about the legal threshold for what is sufficient to constitute reason to believe a 

violation has occurred does not constitute a valid injury in fact sufficient for standing to obtain 

judicial review under section 30109(a)(8). 

B. Plaintiffs Have Failed to Establish the Information They Allegedly Lack 

Would Be Useful When Any Plaintiff Votes

Even if plaintiffs’ claims could be construed to have alleged violations of law that 

deprived them of information, they have not demonstrated that any such information would be 

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12 

useful in voting by any plaintiff. An administrative complainant must make that showing in 

order to demonstrate informational injury to support judicial review under 52 U.S.C. § 

30109(a)(8). Plaintiffs have alleged that Murray Energy coerced its employees into contributing 

to its PAC and reimbursed them for doing so, thereby concealing the true sources of funding to 

the PAC. But these general allegations, even if taken as true, do not establish that plaintiffs 

themselves have been deprived of information with the requisite connection to their voting. 

As the Supreme Court has put it, to constitute a legally cognizable injury for an action 

seeking review of an FEC dismissal, the information of which plaintiffs claim to have been 

deprived must be “directly related to voting.” Akins, 524 U.S. at 24-25. The D.C. Circuit has 

similarly explained that a particularized informational injury is sufficient to create standing 

where plaintiffs have alleged that “voter[s] [we]re deprived of useful [political] information at 

the time” of voting, and the denied information is “useful in voting and required by Congress to 

be disclosed.” Common Cause, 108 F.3d at 418 (citation omitted). In addition, courts in this 

District have recognized that the sought-after information must “have a concrete effect on 

plaintiffs’ voting,” i.e., that plaintiffs (or their members) must be participants in political 

elections and campaigns. All. for Democracy v. FEC (“Alliance I”), 335 F. Supp. 2d 39, 48 

(D.D.C. 2004) (emphasis added). In this context, “the nature of the information allegedly 

withheld is critical to the [court’s] standing analysis.” Common Cause, 108 F.3d at 417; CREW

401 F. Supp. 2d at 115 (“The character of the information sought weighs heavily on the 

informational standing analysis.” (citation omitted)). 

Plaintiffs have failed to show how knowing the precise nature of the alleged unlawful 

coercion or reimbursement, or which specific affiliates of Murray Energy support a given 

candidate, would directly and concretely affect their voting. Plaintiffs’ assertions regarding their 

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13 

alleged injuries make apparent their lack of a concrete or particular injury. None of the four 

paragraphs of the complaint that appear to assert an informational injury explain specifically how 

any of the information sought would be used by a plaintiff in voting. 

Plaintiffs’ first allegation of informational injury is that the FEC’s dismissal of their 

administrative complaint “deprives CREW of information critical to advancing its ongoing 

mission of educating the public to ensure the public continues to have a vital voice in our 

political process and government decisions.” (Compl. ¶ 11.) This broad policy language does 

not suggest any injury specific to any voting by a plaintiff. 

Plaintiffs next allege injury because “[w]ithout information about the individuals and 

entities funding the political activities of organizations and individuals like Murray Energy and 

Robert Murray, CREW is stymied in fulfilling its central mission.” (Compl. ¶ 12.) But neither 

Murray Energy nor Robert Murray are officeholders or candidates for office. Plaintiffs do not 

show how the internal political activities of those administrative respondents would have been 

useful to any plaintiff when voting. There is no allegation in the complaint that any plaintiff 

planned to vote differently depending on whether specific funds had been contributed 

unlawfully. 

Plaintiffs’ next claim of informational injury is that due to allegedly unlawful reporting, 

“CREW has no access to information detailing the true sources of the money used to fund the 

political activities of federal candidates and outside groups like Murray Energy PAC . . . thereby 

limiting CREW’s ability to obtain and review campaign finance information.” (Compl. ¶ 15.) 

Again, this broad language attempts to obscure the lack of connection to any information useful 

in voting here. In particular, despite the reference to the “political activities of federal 

candidates,” the only relevant political activity that federal candidates engaged in is accepting the 

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14 

support of Murray Energy PAC and Murray Energy employees. Plaintiffs are already aware of 

the identities of the employees and the candidates, and the amount of support the candidates 

received from those affiliated with Murray Energy. As explained above, plaintiffs who already 

have access to the relevant portions of information they purportedly seek have no standing. See 

supra p. 10. Plaintiffs fail to demonstrate how whether Murray Energy coerced or was the true 

source of some of its employees’ past contributions would affect any votes that plaintiffs will 

make. 

Plaintiffs’ final allegation of informational injury is that “Mr. Bookbinder is harmed in 

exercising his right to an informed vote when a political committee fails to report the true source 

of its contributions, as the FECA requires.” (Compl. ¶ 16.) But again, even setting aside that 

plaintiffs have not alleged that there are any reporting violations, plaintiffs fail to establish that 

Murray Energy or its PAC contributed or raised money for any candidates who will be on one of 

Mr. Bookbinder’s ballots. And even if they could establish that there will be such an appearance 

on one of his ballots, they also have not shown any direct connection between learning the true 

sources of funds contributed to Murray Energy PAC and candidates it supports, and Mr. 

Bookbinder’s ability to cast an informed vote for any such specific candidate. Plaintiffs make no 

effort to explain how, for example, if Murray Energy PAC contributed to a candidate on Mr. 

Bookbinder’s ballot, it would affect Mr. Bookbinder’s vote to know whether some of the PAC’s 

funds had previously been obtained unlawfully. While there is an undoubted general public 

interest in such information, plaintiffs must make a particularized showing of personal injury 

from the specific alleged FECA violations and the purported missing information in order to 

have standing to challenge the Commission’s dismissal. 

Alleged failures to follow FECA’s public reporting requirements can be the source of 

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informational injuries. In FEC v. Akins, for example, the plaintiffs challenged the FEC’s 

dismissal of an administrative complaint that made numerous allegations about the failure of the 

American Israel Public Affairs Committee (“AIPAC”) to register with the Commission as a 

“political committee” and “make disclosures regarding its membership, contributions, and 

expenditures that FECA would otherwise require.” 524 U.S. at 13. The plaintiffs, who opposed 

AIPAC, argued that “the information would help them (and others to whom they would 

communicate it) to evaluate candidates for public office, especially candidates who received 

assistance from AIPAC, and to evaluate the role that AIPAC’s financial assistance might play in 

a specific election.” Id. at 21. The Court agreed that this injury was “concrete and particular.” 

Id. 

By contrast, in this case, details about the receipts and disbursements of Murray Energy 

PAC are already public because of the PAC’s reports to the FEC. See, e.g., Murray Energy PAC 

Report of Receipts and Disbursements, http://docquery.fec.gov/cgibin/fecimg/?_201607159020498160+0. Plaintiffs fail to show how the knowledge that a 

particular contribution was coerced or reimbursed would be useful to Mr. Bookbinder in 

deciding whom to vote for in any specific election, or to CREW, if it had members who voted. 

Thus, if Mr. Bookbinder opposed Murray Energy’s positions, if for example he had an opinion 

on some issue related to the coal industry, he would already know from FEC reporting which 

candidates were supported by persons affiliated with Murray Energy, even if the company’s PAC 

was using funds provided involuntarily by an employee or illegally from Murray Energy’s 

corporate treasury. The information plaintiffs claim to have been deprived of relates to the 

relationship among Murray Energy, its PAC, its executives, and its employees. Plaintiffs have 

not established any manner in which this information would specifically assist them in making 

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decisions about any particular candidates. 

Plaintiffs may have a general interest in learning whether contributions were coerced or 

reimbursed by Murray Energy, but they possess standing to challenge only information that is 

statutorily required to be disclosed and tied directly to their own voting. Plaintiffs fail to 

demonstrate that their allegations of coercion and contributions by a corporation in the name of 

company affiliates constitutes that sort of informational injury personal to plaintiffs. This case 

should therefore be dismissed. 

C. CREW Suffers No Cognizable Injury Additionally Because It Is Not a 

Voter, Does Not Claim Any Voting Members, and Is Not Otherwise a 

Participant in Political Elections and Campaigns 

As explained above, information sought by section 30109(a)(8) plaintiffs must “have a 

concrete effect on plaintiffs’ voting,” i.e., that plaintiffs (or their members) must be participants 

in political elections and campaigns. Alliance I, 335 F. Supp. 2d at 48 (emphasis added); 

Judicial Watch, 293 F. Supp. 2d at 46; CREW, 401 F. Supp. 2d at 120. Likewise in CREW, the 

district court found that CREW’s interest in learning the value of a contact list that was allegedly 

donated to a presidential campaign as an unlawful in-kind contribution was insufficient to 

establish an informational injury. The court reached that conclusion in part because the value of 

the list could “[]not be useful to CREW in voting,” given CREW’s status as a non-profit 

corporation that was not a “participant[] in the political election and campaign process” and that 

already knew the identities of those involved in the transaction. 401 F. Supp. 2d at 120-21. In 

affirming the district court’s decision, the D.C. Circuit distinguished Akins because, unlike the 

voters in that case “who wanted certain information so that they could make an informed choice 

among candidates in future elections, CREW cannot vote; it has no members who vote; and 

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because it is a § 501(c)(3) corporation under the Internal Revenue Code, it cannot engage in 

partisan political activity.” CREW, 475 F.3d at 339.2

 

Here again, CREW is merely “asserting a derivative harm — an alleged inability to help 

others (participants in the political process) realize that they may have been deprived of 

information.” CREW, 401 F. Supp. at 121. As the district court in that earlier CREW case 

explained, “[T]o withstand the rigors of Article III, an injury in fact must be suffered by the 

plaintiff or the plaintiff’s members; one cannot piggyback on the injuries of wholly unaffiliated 

parties.” Id. CREW is “simply the wrong party to seek redress for the injury that has allegedly 

been suffered.” Id. 

D. CREW Lacks Standing for the Additional Reason that Its Programmatic 

Activities Are Not Directly and Adversely Affected by the Challenged 

Dismissal Decision 

In addition to lacking any legally cognizable informational injury, CREW cannot 

demonstrate standing in any representative or associational capacity. CREW claims no members 

and is not a trade association; it is suing on its own behalf and is therefore required to allege a 

direct and adverse effect on specific programmatic concerns from the challenged dismissals to 

meet Article III’s injury requirement. CREW has failed to do so. The complaint nowhere 

alleges anything that could fairly be read to suggest that CREW’s resources have been depleted. 

Nor does CREW allege concrete and direct harm to its programmatic activities.3

 

 

2

 Section 501(c)(3) corporations are prohibited by law from participating in political campaigns. 

See 26 U.S.C. § 501(c)(3); 26 C.F.R. § 1.501(c)(3)-1. 

3

 It is well established that resources expended on litigation cannot be deemed injury for Article III 

purposes. “‘An organization cannot . . . manufacture the injury necessary to maintain a suit from its 

expenditure of resources on that very suit.’” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 

1434 (D.C. Cir. 1995) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). This 

position “would enable every litigant automatically to create an injury in fact by filing a lawsuit,” and 

“has been expressly rejected by the Supreme Court.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 

n.2 (D.C. Cir. 1987) (citing Diamond v. Charles, 476 U.S. 54, 55 (1986)). 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 25 of 31
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“The injury in fact component of the standing inquiry is often difficult for 

organizational plaintiffs . . . to satisfy.” CREW, 401 F. Supp. 2d at 120. If an organization has 

members or is a trade association, it may qualify for representative or associational standing on 

behalf of those members or constituents. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 

333, 342-44 (1977). As the D.C. Circuit has explained, where an organizational plaintiff brings 

suit on its own behalf, “it must establish ‘concrete and demonstrable injury to the organization’s 

activities — with [a] consequent drain on the organization’s resources — constitut[ing] . . . more 

than simply a setback to the organization’s abstract social interests.’” Common Cause, 108 F.3d 

at 417 (quoting Nat’l Taxpayers Union, Inc., 68 F.3d at 1433); see also id. (“The organization 

must allege that discrete programmatic concerns are being directly and adversely affected by the 

challenged action.”). This standing requirement for organizations suing on their own behalf 

“may only be satisfied by a showing that [the plaintiff] has suffered a ‘concrete and 

demonstrable injury’ to its organizational activities, in conjunction with a depletion of resources, 

that constitutes more than a simple inconvenience to ‘abstract social interests.’” CREW, 401 F. 

Supp. 2d at 120 (citing Nat’l Taxpayers Union, Inc., 68 F.3d at 1433). 

 Rather than citing direct and specific harm to CREW’s programmatic activities, plaintiffs 

assert that CREW uses information obtained from disclosure reports filed with the Commission 

to “publicize[] the role of . . . individuals and entities in the electoral process and the extent to 

which they have violated federal campaign finance laws.” (Compl. ¶ 9.) But plaintiffs offer 

only abstract generalities without specifying, for example, any particular publicity plan that the 

Commission’s dismissal decision challenged here might have hindered. This amounts to little 

more than speculation that the information plaintiffs claim to have been deprived of might 

someday prove useful. Such conjecture hardly meets the exacting definition of informational 

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19 

injury: “[T]his type of injury is narrowly defined; the failure must impinge on the plaintiff’s 

daily operations or make normal operations infeasible in order to create injury-in-fact.” Akins v. 

FEC, 101 F.3d 731, 735 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 

(1998); see supra pp. 8-11. 

 This case is on all fours with CREW, 401 F. Supp. 2d 115, and for the very same reasons 

identified by the court in that case, plaintiffs here have not suffered any injury to their 

programmatic activities. In CREW, the district court found that the plaintiff non-profit 

organization had not sufficiently identified any programmatic activities adversely affected by the 

Commission’s dismissal of its administrative complaint. Id. at 121. Here, as in CREW, plaintiffs 

have not “specified any programmatic concerns that have been concretely and directly impacted 

adversely by the FEC’s actions,” nor have they identified any “particular plan” for using any 

information CREW could obtain if it was to prevail in this action. Id. at 122-23. Moreover, 

while the court in CREW acknowledged “that it may be difficult to detail how information will 

be used when a plaintiff does not yet possess that information,” here, as in CREW, “such 

hardship is not implicated [because CREW is] already privy to information” about the political 

candidates that Murray Energy or persons affiliated with it have supported. Id.; see supra p. 10. 

CREW thus lacks any injury in fact that is “concrete,” “distinct and palpable,” and “actual or 

imminent.” McConnell v. FEC, 540 U.S. 93, 225 (2003) (citation omitted), overruled on other 

grounds by Citizens United v. FEC, 558 U.S. 310 (2010). 

 In sum, plaintiffs have failed to provide evidence of a concrete and particularized injury 

to any “discrete programmatic concerns” of CREW’s, let alone demonstrate that the organization 

is being directly and adversely affected by its purported lack of “timely” information regarding 

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20 

the contributions that are the subject of their administrative complaints. This failure is another 

independent reason CREW cannot demonstrate Article III standing. 

E. Plaintiffs’ Alleged Injury Is Neither Caused by the FECA Violations They 

Allege Nor Redressable by a Decision in Their Favor 

 For many of the same reasons that plaintiffs have not been injured in fact by the alleged 

FECA violations, see supra Part IV.A., their claim to standing fails for reasons of both causation 

and redressability. They seek to have revised disclosure reports filed (Compl. ¶¶ 15-17, 21), but 

did not allege in their administrative complaint that Murray Energy and its affiliates had 

committed any reporting violations (Compl. ¶ 40; In the Matter of Murray, et al., MUR 6661, 

Am. Compl. ¶¶ 14-19 (Nov. 18, 2015), AR 199-200) (to be included in appendix); 

http://eqs.fec.gov/eqsdocsMUR/16044394574.pdf). Their allegations about other, distinct 

violations — coercion and contributions in the name of another — are thus not the cause of any 

failure to file revised disclosure reports, and a decision in their favor would not redress their 

purported injury from not being able to access information contained in revised reports. 

 When the Commission has handled past allegations of contributions in the name of 

another that were not accompanied by alleged reporting violations, it has typically negotiated 

administrative settlements that did not contain any requirement to file revised disclosure reports. 

Instead, the remedies in such conciliation agreements typically involved only payment of civil 

penalties, refund or disgorgement, and cease-and-desist terms.4

 This illustrates the independence 

 

4

 See, e.g., Conciliation Agreement, In the Matter of Habie, et al., MUR 4646, ¶¶ IX, 

XIII, http://eqs.fec.gov/eqsdocsMUR/0000192D.pdf; Conciliation Agreement, In the Matter of 

Walt Roberts for Congress, MUR 4818, ¶¶ V-VII, 

http://eqs.fec.gov/eqsdocsMUR/00001618.pdf; Conciliation Agreement, In the Matter of Friends 

of Maurice Hinchey, et al., MUR 4843, ¶¶ VI-VII, 

http://eqs.fec.gov/eqsdocsMUR/000010D6.pdf; Conciliation Agreement, In the Matter of DNC 

Services Corp., et al., MUR 4909, ¶¶ VI-VII, http://eqs.fec.gov/eqsdocsMUR/00000536.pdf; 

Conciliation Agreement, In the Matter of Jamie Jacob Morgan, MUR 5358, ¶ VI, 

Case 1:16-cv-01088-RJL Document 10 Filed 08/22/16 Page 28 of 31
21 

of contribution-in-the-name-of-another violations from reporting violations, the failure of 

plaintiffs here to allege violations that caused their purported informational injury, and the low 

probability that prevailing here would redress that claimed injury. 

 Perhaps recognizing their jurisdictional vulnerability, and notwithstanding their failure to 

allege reporting violations, plaintiffs supplemented their administrative complaint with a request 

for the remedy of mandated filing of revised disclosure reports. (In the Matter of Murray, et al., 

MUR 6661, Letter from Noah Bookbinder to Kim Collins (Nov. 18, 2015), AR 194 (explaining 

that the amended complaint added “the relief sought” of “an order that respondents file with the 

FEC and make public appropriate disclosure reports”) (to be included in appendix); In the Matter 

of Murray, et al., MUR 6661, Am. Compl. at 7 (Nov. 18, 2015), AR 201) (to be included in 

appendix); http://eqs.fec.gov/eqsdocsMUR/16044394574.pdf.)) But even if they prevailed here, 

the likelihood of such a remedy is far from assured. The court’s remedy would be limited to 

declaring that the Commission’s dismissal was “contrary to law” and ordering the Commission 

to “conform with” that declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C). 

 Such a judicial order in favor of challengers to FEC dismissal decisions cannot mandate 

any particular outcome — let alone remedy — on remand. Akins, 524 U.S. at 25; La Botz v. 

FEC, 889 F. Supp. 2d 51, 63 n.6 (D.D.C. 2012) (“La Botz I”) (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” given the availability 

 

http://eqs.fec.gov/eqsdocsMUR/00005C11.pdf; Conciliation Agreement, In the Matter of 

Edwards for President, et al., MUR 5366, ¶ VI, http://eqs.fec.gov/eqsdocsMUR/000054C0.pdf; 

Conciliation Agreement, In the Matter of Int’l Ass’n of Machinists, et al., MUR 5386, ¶ VI, 

http://eqs.fec.gov/eqsdocsMUR/00004B68.pdf; Conciliation Agreement, In the Matter of Nat’l 

Air Transp. Ass’n, et al., MUR 6889, ¶ VII, http://eqs.fec.gov/eqsdocsMUR/15044371751.pdf; 

Conciliation Agreement, In the Matter of ACA Int’l, et. al., MUR 6922, ¶ VII, 

http://eqs.fec.gov/eqsdocsMUR/15044376234.pdf. 

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of alternative rationales); La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) (“La Botz II”) 

(dismissing judicial-review action on mootness grounds following FEC’s dismissal of plaintiff’s 

administrative complaint upon remand; explaining further that even if the court had jurisdiction, 

FEC’s dismissal represented a reasonable exercise of prosecutorial discretion that was not 

contrary to law under FECA). Courts may not dictate specific Commission actions on remand. 

See, e.g., Hagelin v. FEC, 332 F. Supp. 2d 71, 81-83 (D.D.C. 2004) (rejecting request that court 

dictate that the Commission make a reason-to believe finding on remand), rev’d on other 

grounds, 411 F.3d 237 (D.C. Cir. 2005). Plaintiffs’ hope that if they prevail the Commission 

will order revised disclosure reports is a departure from past Commission practice and far too 

speculative to establish either causation or redressability. Plaintiffs lack standing. 

V. CONCLUSION 

Plaintiffs CREW and Mr. Bookbinder have not suffered any informational injury because 

they have not alleged any reporting violations or demonstrated that they lack information tied 

directly to their own voting, and failed to demonstrate that any injury they have suffered was 

caused by the FECA violations they allege or redressable through further proceedings related to 

those allegations. CREW lacks standing for the additional reasons that it does not participate in 

elections, does not have members who do, and does not have programmatic activities directly 

harmed by the challenged FEC dismissal. For all the foregoing reasons, the Court should 

dismiss plaintiffs’ complaint for lack of jurisdiction. 

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 

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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 

Associate General Counsel FOR THE DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

 999 E Street NW 

August 22, 2016 Washington, DC 20463 

 (202) 694-1650 

 

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