UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

UTILITY WORKERS UNION OF ) 

AMERICA, LOCAL 369, AFL-CIO, ) 

 ) Case Number: 09-cv-01022-JDB 

Plaintiff, ) 

 ) MOTION TO DISMISS

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS THE COMPLAINT 

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Federal Election 

Commission (“Commission”) respectfully moves this Court for an order dismissing the 

Complaint with prejudice for failure to state a claim upon which relief can be granted. A 

memorandum of law in support of the Commission’s motion and a proposed order are attached. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s Erin Chlopak 

Erin Chlopak (D.C. Bar No. 496370) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: July 31, 2009 (202) 694-1650 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 1 of 17
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

UTILITY WORKERS UNION OF ) 

AMERICA, LOCAL 369, AFL-CIO, ) 

 ) Case Number: 09-cv-01022-JDB 

Plaintiff, ) 

 ) MEMORANDUM OF LAW 

 v. ) IN SUPPORT OF MOTION TO DISMISS 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF LAW 

IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT 

 Plaintiff Utility Workers Union of America, Local 369, AFL-CIO (“Local 369”) 

commenced this action to challenge the Federal Election Commission’s (“Commission”) 

dismissal of an administrative complaint that Local 369 filed against Covanta Energy 

Corporation (“Covanta”). The Commission’s dismissal of Local 369’s administrative complaint 

was reasonable and is subject to the highly deferential standard governing review of the 

Commission’s interpretation of the statute it administers. 

Local 369’s Complaint here must be dismissed, because it fails to allege that the 

Commission acted unreasonably in dismissing Local 369’s underlying administrative complaint. 

Indeed, Local 369 does not challenge the Commission’s central determination that a corporate 

communication that neither encourages recipients to support the activities of the corporation’s 

separate segregated fund (“SSF”), nor facilitates contributions by the recipients to that fund, is 

not a solicitation under 2 U.S.C. § 441b or 11 C.F.R. § 114.6. 

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2

BACKGROUND AND PROCEDURAL HISTORY 

 A. The Federal Election Commission 

 The Commission is the United States government agency with exclusive civil jurisdiction 

over administration of the Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA”). Any 

person who believes that FECA has been violated may file with the Commission an 

administrative complaint regarding that violation. 2 U.S.C. § 437g(a)(1). The Commission then 

considers the complaint to determine whether it provides “reason to believe” that FECA has been 

violated. Id. § 437g(a)(2). If at least four commissioners vote to find such reason to believe, the 

Commission may investigate the alleged violation; otherwise, the Commission dismisses the 

administrative complaint. See id. 

When the Commission dismisses a complaint, the complainant may file suit in the United 

States District Court for the District of Columbia seeking a declaration that the Commission’s 

dismissal was “contrary to law.” Id. § 437g(a)(8). If the district court declares that the 

Commission’s dismissal was contrary to law, the court can “direct the Commission to conform 

with such declaration within 30 days.” Id. § 437g(a)(8)(C). 

 B. Statutory and Regulatory Background 

 The Complaint filed by Local 369 purports to implicate provisions in FECA and 

Commission regulations concerning a corporation’s solicitation of employee donations to the 

corporation’s separate segregated fund or “political action committee” to be used for that 

corporation’s campaign contributions and expenditures.1

 

 

1

 Although FECA uses the term “separate segregated fund” to describe the permissible 

corporate mechanism for soliciting and accepting contributions for a corporation’s federal 

political activities, 2 U.S.C. § 431(4)(B), “political action committee” or “PAC” is commonly 

used to refer to separate segregated funds as well as other political committees registered with 

the Commission that are not connected to corporations or labor organizations. See, e.g.,

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3

“The statutory purpose of § 441b . . . is to prohibit contributions or expenditures by 

corporations or labor organizations in connection with federal elections.” McConnell v. FEC, 

540 U.S. 93, 203 n.86 (2003) (quoting FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 201-

202 (1982)). The terms “contributions” and “expenditures” as used in § 441b include “anything 

of value, made by any person for the purpose of influencing any election for Federal office.” 

2 U.S.C. § 431(8)(a)(i); id. § 431(9)(A)(i). FECA excepts from its general prohibition of 

political contributions and expenditures by corporations “the establishment, administration, and 

solicitation of contributions to a separate segregated fund to be utilized for political purposes by 

a corporation . . . .” 2 U.S.C. § 441b(b)(2)(C). FECA and Commission regulations permit a 

corporation or its separate segregated fund to solicit voluntary contributions to such a fund at any 

time from the corporation’s “restricted class,” which consists of the corporation’s executive and 

administrative personnel, its stockholders, and the families of such persons. Id. 

§ 441b(b)(4)(A)(i); 11 C.F.R. §§ 114.1(c), 114.5(g)(1). FECA and Commission regulations also 

permit a corporation, or its separate segregated fund, to make two written contribution 

solicitations per year to other employees, but require, inter alia, that such solicitations are made 

in writing and sent to an employee’s residence. 2 U.S.C. § 441b(b)(4)(B); 11 C.F.R. § 114.6. 

Both also require a corporation to make available to a labor organization representing any 

members working for the corporation or its subsidiaries, branches, divisions, or affiliates the 

same method by which the corporation solicits employees. 2 U.S.C. § 441b(b)(5)-(6); 11 C.F.R. 

§ 114.6(e)(3). 

 

McConnell v. FEC, 540 U.S. 93, 118 (2003); FEC v. Beaumont, 539 U.S. 146, 149 (2003). (See 

also Compl. ¶ 6.) Rather than substitute a single terminology, this memorandum retains the 

characterizations used in the cited authorities and in Local 369’s Complaint, and at all times 

intends to refer to the type of entity at issue here, i.e., a corporation’s separate segregated fund. 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 4 of 17
 

4

 C. Factual Background 

 The following facts, derived from Local 369’s Complaint, are assumed to be true for 

purposes of this motion only. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007) (holding 

dismissal appropriate “when the allegations in a complaint, however true, could not raise a claim 

of entitlement to relief”); Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (“[I]n considering 

the claims dismissed pursuant to Rule 12(b)(6), we must treat the complaint’s factual allegations 

as true [and] must grant plaintiff the benefit of all reasonable inferences from the facts 

alleged . . . .”) (quotations omitted). 

 According to the Complaint, Local 369 is a labor organization currently representing 135 

employees at Covanta’s SEMASS waste-to-energy facility, which is located in West Wareham, 

Massachusetts. (Compl. ¶¶ 7, 16-17.) 

Local 369 alleges that Covanta “solicit[s] contributions for its federal PAC through . . . 

an ‘employee Handbook.’” (Id. ¶ 27; Attach. A, 6 (emphasis in original).) According to Local 

369, the “Handbook,” which is officially entitled the “COVANTA Policy of Business Conduct,” 

and a copy of which is attached as Exhibit 11 to Attachment A to the Complaint,2

 unlawfully 

 

2

 Local 369 incorporates in and attaches to its civil Complaint two attachments: the 

administrative complaint lodged with the Commission (Attachment A), and the Commission’s 

Factual and Legal Analysis issued in connection with the Commission’s dismissal of the 

administrative complaint (Attachment B). Local 369 also incorporates in and attaches to its civil 

Complaint the eleven attachments (Attachments 1-11) to Local 369’s administrative complaint; 

“Attachment 11” is a purported copy of the “Handbook” at issue here. All such attachments are 

properly considered by this Court in connection with the Commission’s motion to dismiss. 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004 and Supp. 

2007)). To avoid confusion among the various attachments to Local 369’s respective 

complaints, this memorandum refers to the attachments to Local 369’s civil Complaint as 

“Attachments A and B,” and to the attachments to the administrative complaint as “Exhibits 1-

11.” 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 5 of 17
 

5

solicits political contributions through a section entitled “Political Contributions/Lobbying.” The 

entire “Political Contributions” section states: 

Political Contributions

Federal, state, and local laws impose various restrictions on 

political campaign contributions. Under federal law a corporation 

may not make political contributions to federal political candidates 

or campaign committees. The extent to which corporations are 

permitted to contribute to state political candidates or campaign 

committees varies from state to state. 

We will only make political contributions and expenditures if it is 

in our best interest and we determine that the proposed 

contribution or expenditure is legal. Contributions include not 

only donations of cash or property (e.g. monetary contribution to a 

campaign or political committee, purchases of tickets to political 

dinners, or paying for advertisements on behalf of candidates) but 

also the use of our facilities and resources. 

In general, employees are free to make a personal contribution 

to any political candidates or committees as an individual and 

not as a representative of Covanta, subject to the individual 

limitations under state or federal law. However, members of 

our Board of Directors and our officers who contribute as 

individuals to candidates for state office in New Jersey and 

Maryland, may be subject to certain contribution limits and/or 

disclosure obligations. Contributions by members of the 

Board, officers and employees with managerial responsibilities 

for our Connecticut facilities to candidates for certain state 

offices in Connecticut are prohibited. 

The regulations relating to political contributions are complex and 

changing. Prior to making or authorizing a corporate contribution 

or authorizing the use of a Covanta facility or resources for 

political purposes, please consult our Director of Governmental 

Affairs and our General Counsel. If you have any questions 

concerning a personal contribution, please contact our General 

Counsel. 

Primarily in order to make contributions to federal political 

candidates or committees, we have established a federal political 

action committee (or “PAC”). Contributions to the PAC by 

eligible employees are voluntary. Whether an employee 

contributes or not results in no favor, disfavor or reprisal from 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 6 of 17
 

6

Covanta. The PAC will comply with all related federal and state 

laws. 

The Company also has written procedures which must be followed 

before a proposed political contribution or expenditure is made or 

any action is taken regarding a contribution or expenditure. Only 

our Director of Government Affairs may initiate these procedures. 

(Compl. Attach. A, Ex. 11, at 11-12 (bold in original).) 

Local 369 asserts that some of the above-excerpted language from the COVANTA Policy 

of Business Conduct (the “Covanta Policy” or the “Policy”) “constitutes a solicitation by 

Covanta of employees outside its ‘restricted class’ for Covanta’s federal PAC.” (Id. ¶ 30.) 

 D. Procedural History 

Local 369 lodged its underlying administrative complaint with the Commission on 

October 20, 2008. The Commission dismissed the administrative complaint on April 2, 2009, 

concluding that “the language in Covanta’s employee handbook does not rise to the level of a 

solicitation because it does not encourage support for [Covanta’s federal] PAC or facilitate the 

making of contributions to the PAC.” (Id. Attach. B, at 4 (collecting Commission advisory 

opinions).) On June 1, 2009, Local 369 filed the instant action pursuant to 2 U.S.C. § 437g(a)(8) 

to challenge the Commission’s dismissal of its administrative complaint. 

ARGUMENT 

I. STANDARD OF REVIEW 

Dismissal of a complaint is appropriate when, accepting the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to 

state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Twombly, 550 U.S. at 

558; Hicks v. Ass’n of Am. Med. Coll., 503 F. Supp. 2d 48, 50-51 (D.D.C. 2007). 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 7 of 17
 

7

A court reviewing the Commission’s dismissal of an administrative complaint under 

2 U.S.C. § 437g(a)(8) “may set aside the FEC’s dismissal of a complaint only if its action was 

‘contrary to law.’” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (citing § 437g(a)(8)); 

Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (same). The Commission’s dismissal of an 

administrative complaint cannot be disturbed unless it is based on “an impermissible 

interpretation of [FECA]” or is “arbitrary or capricious, or an abuse of discretion.” Orloski, 795 

F.2d at 161. See also FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 

31 (1981). 

To affirm the agency’s action, “it is not necessary for a court to find that the agency’s 

construction was the only reasonable one or even the reading the court would have reached if the 

question initially had arisen in a judicial proceeding.” DSCC, 454 U.S. at 39. Instead, the court 

engages in “the narrower inquiry into whether the Commission’s construction [is] sufficiently 

reasonable to be accepted by a reviewing court.” Id. (quotation marks and citations omitted). 

This inquiry is “highly deferential” to the Commission’s interpretation of the statutes it 

administers. DSCC v. FEC, 918 F. Supp. 1 (D.D.C. 1994). 

In addition, the court “review[s] the Commission’s interpretation of its own regulations 

pursuant to an exceedingly deferential standard . . . [and that] interpretation will prevail unless it 

is plainly erroneous or inconsistent with the plain terms of the disputed regulation.” FEC v. 

Nat’l Rifle Ass’n of Am., 254 F.3d 173, 182 (D.C. Cir. 2001) (quotation marks and citations 

omitted).

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8

II. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN 

BE GRANTED BECAUSE THE COMMISSION REASONABLY DETERMINED 

THAT THE COVANTA POLICY IS NOT A SOLICITATION 

The Complaint fails to state a claim upon which relief can be granted because, even 

accepting all of Local 369’s factual allegations as true for purposes of this motion, the 

Commission’s dismissal of Local 369’s administrative complaint was not “contrary to law.” 

Local 369 does not claim that the Commission’s legal standard for what constitutes a 

“solicitation” under 2 U.S.C. § 441b is unreasonable. See DSCC, 454 U.S. at 39. Indeed, rather 

than challenge the propriety of that standard developed by the agency Congress entrusted to 

interpret FECA, Local 369 simply asserts its disagreement with the Commission’s application of 

that standard. Cf. Northwest Coal. for Alternatives to Pesticides v. Lyng, 673 F. Supp. 1019, 

1024 (D. Or. 1987) (where Bureau of Land Management “has historically and statutorily been 

charged with management of our public lands,” plaintiffs’ disagreement with BLM on best 

management of public lands is insufficient to establish that BLM’s decisions are contrary to 

law). But even if Local 369’s divergent conclusion were itself reasonable — indeed, even if this 

Court might have reached a different conclusion had the question originated in a judicial rather 

than administrative forum — this Court must defer to the Commission’s decision unless that 

decision is contrary to law. DSCC, 454 U.S. at 39. It is not. 

A. The Commission Properly Defined the Circumstances in which a Corporate 

Communication Amounts to a “Solicitation” under Section 441b

FECA does not define the meaning or scope of the term “solicitation” as used in § 441b. 

In the absence of a statutory definition, the Commission, as a proper exercise of its “authori[ty] 

to ‘formulate general policy with respect to the administration of [FECA],’” Buckley v. Valeo, 

424 U.S. 1, 110 (1976), applied its own interpretation of that term. See Chevron U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 9 of 17
 

9

The Commission’s interpretation — that “a communication regarding SSF activity is not 

a solicitation under 441b where the information provided would neither encourage readers to 

support the SSF activities nor facilitate contributions to the SSF” — reflects the same standard 

the Commission has repeatedly invoked in various advisory opinions addressing whether the 

Commission would deem a particular corporate communication to be a solicitation. (Compl., 

Attach. B, at 4.) See, e.g., FEC Advisory Op. 2003-14, 2003 WL 21543562, at *2 (collecting 

other Commission advisory opinions articulating the same standard); see also FEC Advisory Op. 

2000-07, 2000 WL 725744, at *3; FEC Advisory Op. 1991-3, 1991 WL 415550, at *2; FEC 

Advisory Op. 1988-2, 1988 WL 170400, at *2.3 

The D.C. Circuit has held that “advisory opinions of the Federal Election Commission 

. . . that reflect[] its considered judgment made pursuant to congressionally delegated lawmaking 

power and that ha[ve] binding legal effect [a]re due Chevron deference” — i.e., deference where 

they “represent a ‘permissible construction of the statute.’” Citizens Exposing Truth About 

Casinos v. Kempthorne, 492 F.3d 460, 466 (D.C. Cir. 2007); Nat’l Rifle Ass’n, 254 F.3d at 186 

(quoting Chevron, 467 U.S. at 843). Here, because the Commission’s advisory opinions reflect a 

“permissible” interpretation of the meaning of the term “solicitation” in § 441b, the Court must 

defer to the Commission’s interpretation. 

 

3

 Additional advisory opinions reflecting the Commission’s articulation and application of 

this standard are available on the Commission’s website. See, e.g., FEC Advisory Op. 1983-38, 

available at http://saos.nictusa.com/aodocs/1983-38.pdf; FEC Advisory Op. 1982-65, available 

at http://saos.nictusa.com/ aodocs/1982-65.pdf; FEC Advisory Op. 1980-65, available at

http://saos.nictusa.com/aodocs/1980-65.pdf; FEC Advisory Op. 1979-66, available at 

http://saos.nictusa.com/aodocs/1979-66.pdf (all last visited July 30, 2009). 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 10 of 17
 

10

B. The Commission Reasonably Applied Its Interpretation of the Meaning of 

“Solicitation” 

The Commission dismissed Local 369’s administrative complaint based on its conclusion 

that “[t]he language in Covanta’s employee handbook does not rise to the level of a solicitation 

because it does not encourage support for the PAC or facilitate the making of contributions to the 

PAC.” (Compl., Attach. B, at 4.) The Commission reached its conclusion by considering its 

analogous determinations in past Commission advisory opinions “that internal intranet postings 

and newsletter articles would not be considered solicitations under 2 U.S.C. § 441b when they 

consisted only of limited informational statements without additional encouragement.” (Id.

Attach. B, at 4 (citing FEC Advisory Op. 2000-07, 2000 WL 725744; FEC Advisory Op. 1983-

38).) In those advisory opinions, the Commission had reasoned that such communications 

“merely convey[ed] information that might engender inquiry, rather than encouraging or 

facilitating a contribution.” (Id. Attach. B, at 4.) Here, too, the Commission concluded that 

“[t]he language in Covanta’s employee handbook appears to be merely a statement that the PAC 

exists, not a solicitation.” (Id. Attach. B, at 5.) As the text quoted supra pp. 5-6 reveals, the 

handbook language merely explains that Covanta has created a PAC, that the laws about political 

contributions are “complex and changing,” that “[c]ontributions to the PAC by eligible 

employees are voluntary,” and that the “PAC will comply with all related federal and state laws.” 

Although this language “might engender inquiry,” it does not encourage or facilitate a 

contribution within the meaning of the Commission’s interpretation of “solicitation.” (Id.

Attach. B, at 4.) 

Local 369 does not purport to challenge the permissibility of the Commission’s 

interpretation of “solicitation” as excluding communications that neither encourage support of, 

nor facilitate contributions to, a corporation’s separate segregated fund. On the contrary, Local 

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11

369 invokes the Commission’s interpretation, asserting that “Covanta’s Handbook . . . 

encourages readers to support the Covanta PAC’s activities.” (Id. ¶¶ 49, 52 (emphasis added); 

see also id. ¶ 55 (claiming that the Covanta Policy “encourage[es] participation in the PAC”).) 

Specifically, Local 369 asserts six reasons for its alternative conclusion that the Covanta Policy 

constitutes a corporate solicitation in violation of § 441b. (Id. ¶¶ 31-36.) None of Local 369’s 

asserted reasons, whether considered independently or collectively, provides a basis for finding 

that the Commission’s opposite conclusion is contrary to law. 

First, Local 369 incorrectly claims that the Policy “effectively invites contributions to 

Covanta’s federal PAC, stating that ‘eligible employees’ may make voluntary contributions.” 

(Id. ¶ 31 (emphasis added).) The Policy does not so state. Instead, the actual Policy language 

provides that “[c]ontributions to the PAC by eligible employees are voluntary.” (Id. Attach. A, 

Ex. 11, at 11.) Local 369’s mischaracterization of the Policy not only substitutes “eligible 

employees” for “contributions” as the subject of the sentence, it inserts the words “may make,” 

which are entirely absent from the actual Policy language. Thus, while Local 369 suggests that a 

statement entirely absent from the Policy could “effectively invite[] contributions” to Covanta’s 

PAC (id. ¶ 31 (emphasis added)), Local 369 does not claim that any of the Policy language 

actually invites such contributions. 

 Second, Local 369 assumes that the Covanta Policy is a solicitation, and, under that 

assumption, asserts that the Policy violates the statutory and regulatory requirements restricting 

distribution of federal PAC solicitations to a limited class of “stockholders and high-level 

personnel.” (Id. ¶ 32.) See 2 U.S.C. § 441b(b)(4); 11 C.F.R. § 114.6(c). But because the 

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12

Commission reasonably concluded that the Covanta Policy is not a solicitation, the Court need 

not reach Local 369’s second contention.4 

Third, Local 369 claims that the Covanta Policy is a solicitation, because it “indicates 

Covanta’s support for a separate Covanta federal PAC.” (Compl. ¶ 33.) This assertion is flawed 

for at least two reasons. First, it repeats, and relies on, the mischaracterization of the Policy 

language invoked in support of Local 369’s first assertion. (See id. ¶ 33 (asserting that the 

Covanta Policy “indicates Covanta’s support for a separate Covanta federal PAC, in that the 

language references its establishment . . . that voluntary contributions may be made by ‘eligible’ 

employees”).) In addition, Covanta’s explanation of the purpose of its federal PAC, “[p]rimarily 

in order to make contributions to federal political candidates or committees,” and statement of its 

policy to “only make political contributions and expenditures if it is in [Covanta’s] best interest 

and [Covanta] determine[s] that the proposed contribution or expenditure is legal,” disclose the 

existence and explain the purpose and function of Covanta’s federal PAC, rather than advocate 

Covanta’s “support” of the PAC. (See id. Attach. A, Ex. 11, at 11.) And, even if this language 

can be construed as an indication of Covanta’s own support for its political action committee, it 

does not amount to encouragement of such support on the part of its employees. See, e.g., FEC 

Advisory Op. 2000-07, 2000 WL 725744, at *1, *3 (internet-based notice stating that “Alcatel 

USA supports Alcatel PAC” and otherwise “describ[ing] generally the functions of any corporate 

SSF and the laws applicable to its operations” is not a solicitation); FEC Advisory Op. 1982-65, 

supra p. 9 n.3 (indication in Union Carbide Corporation’s annual report that it “supports the 

 

4

 The Commission’s reasonable conclusion that the Covanta Policy is not a solicitation 

likewise moots Local 369’s challenge of the Commission’s consequential determination that 

Local 369 was not deprived of a statutory or regulatory right to engage in the same “solicitation” 

of Covanta employees. (Compl. ¶¶ 12-14.) Because the Covanta Policy does not implicate 

2 U.S.C. § 441b(b)(5) or 11 C.F.R. § 114.6(e), Local 369 has no legal right to access Covanta 

employees through the same method. 

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13

operation of the Union Carbide Corporation Political Action Committee” is not a solicitation). 

The Complaint fails to identify any language in the Policy reflecting the latter. 

Fourth, Local 369 strains to associate the Covanta Policy with a separate mail solicitation 

to Covanta’s state PAC, asserting that unspecified “refer[ences] to the contributions for activities 

at the state (and local) levels[] effectively link[] the Handbook with Covanta’s direct appeal to 

employees for contributions to the ‘Covanta MA PAC.’” (Compl. ¶ 34.) The Complaint fails to 

identify, let alone explain, the supposed link between the Covanta Policy and any Covanta state 

PAC solicitation.5 In any event, even if such a link existed, the presence of an indirect 

solicitation to Covanta’s state PAC would not constitute a solicitation to Covanta’s federal PAC. 

Fifth, Local 369 states, as a “reason why” the excerpted language from the Policy 

“constitutes a solicitation,” the fact that the Covanta Policy “directs inquiries about political 

contributions to the Company’s Director or Governmental (or Government) Affairs and its 

General Counsel.” (Id. ¶¶ 30, 35.) Local 369 fails to identify what significance it attributes to 

this fact. The Commission has repeatedly concluded that a corporate communication “may 

engender some inquiries” about the company’s separate segregated fund, including “from readers 

who are not solicitable,” without being deemed a solicitation. See, e.g., FEC Advisory Op. 2000-

 

5

 In dismissing Local 369’s administrative complaint, the Commission also rejected any 

claim by Local 369 concerning solicitations to Covanta’s state PAC. (See Compl. Attach. B, 

at 3.) The Commission relied on Local 369’s own acknowledgment of its apparent 

misunderstanding that the solicitation sought donations to Covanta’s federal PAC; 

communications with Covanta’s counsel had apparently clarified that the solicitation actually 

sought donations to a state PAC. (Id. Attach B, at 3.) Local 369 never attempted to rebut 

Covanta’s clarification, and the Commission thus found that Local 369’s ostensible claim 

regarding the solicitation to Covanta’s state PAC lacked any merit. (Id.) Local 369 nevertheless 

reiterates in its civil Complaint allegations concerning its misunderstanding regarding the mail 

solicitations to Covanta’s state PAC. (Id. ¶¶ 20-26.) Again, Local 369 acknowledges that 

“subsequent correspondence among counsel for Local 369 and Covanta . . . explained that [the 

solicitation in question] had in fact been a solicitation for a state PAC and was therefore not 

subject to federal election law or FEC regulations.” (Id. ¶ 25 (emphasis in original).) And again, 

Local 369 does not appear to dispute this “expla[nation].” 

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14

07, 2000 WL 725744, at *1, *3 (no solicitation where communication states that “[e]mployees 

desiring additional information on their eligibility or about the activities of the Alcatel PAC may 

contact Alcatel USA Political Action Committee” and providing the address, name, phone 

number, and e-mail address of an Alcatel PAC official); FEC Advisory Op. 1982-65, supra p. 9 

n.3 (no solicitation where company’s annual report indicated that “[s]hareholders [including nonsolicitable foreign shareholders] desiring additional information about the activities of the 

[company’s PAC] may write to the Secretary” of the company and providing the address to 

direct such correspondence). To the extent Covanta employees desire further information about 

Covanta’s federal PAC, the Covanta Policy “places the burden on the [employees] to 

affirmatively request the information. Thus, the [employees] must take the initiative to obtain 

the information, and [Covanta] is the passive conduit of such information.” FEC Advisory Op. 

1982-65, supra p. 9 n.3. The Commission has determined that such a communication “in no way 

encourages support of [the company’s PAC] or facilitates contributions to it” and “[t]hus, it is 

not a solicitation.” Id. 

Sixth, Local 369 appears to suggest that the Covanta Policy should be deemed a 

solicitation, because it contains language “similar” to that which Commission regulations permit 

a corporation to include in a solicitation for donations to its separate segregated fund. (Compl. 

¶ 36 (“Commission’s regulations state that in making a permissible solicitation to the appropriate 

employees, the employer may include language stating that a decision on whether to make a 

contribution will not ‘favor or disadvantage’ the employee. Similar language appears in the 

Handbook.”) (citing 11 C.F.R. § 114.5(a)(2)(ii)).) This assertion presents a false converse: The 

fact that Commission regulations permit certain language to appear in a solicitation does not 

mean that the inclusion of that language in a corporate communication necessarily renders the 

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15

communication a solicitation. Local 369 does not contend that the statement “[w]hether an 

employee contributes or not results in no favor, disfavor or reprisal from Covanta” (Id. Attach. 

A, Ex. 11, at 11), somehow encourages support for, or facilitates the making of, contributions to 

Covanta’s federal PAC. It does not. 

Local 369’s assertions not only fail to challenge the reasonableness of the Commission’s 

determination; they highlight the unreasonableness of the outcome Local 369 seeks. Section 

114.5 of the Commission’s regulations, which Local 369 invokes, was promulgated to “ensur[e] 

the voluntary nature of contributions to separate segregated funds.” FEC Advisory Op. 2003-06, 

2003 WL 21210186, at *1. Indeed, the Commission’s advisory opinions “note[] the importance 

of ensuring that any contributions solicited for [a separate segregated fund] [are] voluntary and 

that no penalty [will] attach to any person who decides not to make a contribution.” AO, 1996-

18, 1996 WL 341161, at *3 n.3 (citing 2 U.S.C. § 441b(b)(3); 11 C.F.R. § 114.5(a)). A 

determination that Covanta violated FECA and Commission regulations by informing its 

employees of the voluntary nature of any contributions to Covanta’s federal PAC would be 

antithetical to the very purpose of § 441b(b)(3) and § 114.5(a). 

In sum, Local 369 alleges no colorable basis for its claim that the Covanta Policy 

“constitutes a solicitation by Covanta of employees outside its ‘restricted class’ for Covanta’s 

federal PAC” (Compl. ¶ 30), let alone that the Commission’s contrary conclusion was 

unreasonable. 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 16 of 17
 

16

CONCLUSION 

 For the foregoing reasons, the Commission respectfully requests that this Court dismiss 

the Complaint with prejudice for failure to state a claim upon which relief can be granted. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s Erin Chlopak 

Erin Chlopak (D.C. Bar No. 496370) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: July 31, 2009 (202) 694-1650 

Case 1:09-cv-01022-JDB Document 6 Filed 07/31/2009 Page 17 of 17
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

UTILITY WORKERS UNION OF ) 

AMERICA, LOCAL 369, AFL-CIO, ) 

 ) Case Number: 09-cv-01022-JDB 

Plaintiff, ) 

 ) [PROPOSED] ORDER

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

 

[PROPOSED] ORDER 

 This matter is before the Court on Defendant Federal Election Commission’s motion to 

dismiss the Complaint. It is hereby 

 ORDERED that Defendant’s motion to dismiss the Complaint is GRANTED; and it is 

FURTHER ORDERED that the Complaint is dismissed with prejudice. 

 SO ORDERED. 

 

 John D. Bates 

 United States District Judge 

DATE: 

Case 1:09-cv-01022-JDB Document 6-2 Filed 07/31/2009 Page 1 of 1