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, ) 

 ) REPLY 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

REPLY IN SUPPORT OF DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS THE COMPLAINT 

 The Opposition and Conditional Motion for Leave to Amend filed by Plaintiff Utility 

Workers Union of America, Local 369, AFL-CIO (“Opposition”) confirms that plaintiff’s 

complaint should be dismissed. The Opposition expressly affirms that Plaintiff Utility Workers 

Union of America, Local 369, AFL-CIO (“Local 369”) “does not challenge the FEC’s 

interpretation of ‘solicitation’” (Opp’n at 5 (internal quotation marks omitted)), and 

acknowledges that the Court may set aside the Federal Election Commission’s (“Commission”) 

dismissal of Local 369’s administrative complaint only if the Commission’s decision was 

“contrary to law” (id. at 3). As explained below, the Opposition demonstrates that Local 369’s 

quarrel with the Commission concerns the parties’ conflicting assessment of a document attached 

to Local 369’s Complaint. Because the Court is not required to accept as true Local 369’s 

conclusory characterization of that document, the content of which is undisputed, but instead 

must defer to the Commission’s reasonable application of the relevant law to the facts presented 

in Local 369’s administrative complaint, the Commission’s motion to dismiss should be granted. 

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 The Opposition contends that dismissal is unwarranted here, however, because (1) Local 

369 believes that the language in the Covanta Policy “encourages or facilitates contributions to 

the Covanta federal PAC” (Opp’n at 2), and (2) the Commission’s “dual claims that [it] (a) is 

accorded substantial deference; and (b) acted reasonably in dismissing the [administrative] 

Complaint . . . do not belong in a motion to dismiss” (Opp’n at 5). Local 369 “misunderstand[s] 

the role the district court plays when it reviews [an] agency action.” Marshall County Health 

Care Auth. v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993). In a case like this one, the district 

court “sit[s] as an appellate tribunal [and] the legal questions raised by a 12(b)(6) motion and a 

motion for summary judgment are the same,” id. at 1222-23, and Local 369’s inaccurate and 

conclusory characterizations of a document that it attached to the Complaint are insufficient to 

survive dismissal. 

ARGUMENT

I. THE QUESTION BEFORE THE COURT IS WHETHER THE COMMISSION 

REASONABLY APPLIED ITS UNDISPUTED INTERPRETATION OF 

“SOLICITATION” 

 

Local 369’s action against the Commission under 2 U.S.C. § 437g(a)(8) seeks review and 

reversal of the Commission’s dismissal of Local 369’s administrative complaint. The question 

before the Court on the Commission’s motion to dismiss, therefore, is whether the Commission’s 

dismissal of Local 369’s administrative complaint was “contrary to law,” i.e., whether it was 

“‘sufficiently reasonable’ to be accepted by a reviewing court,” FEC v. Democratic Senatorial 

Campaign Comm. (“DSCC”), 454 U.S. 27, 39 (1981) (citations omitted) — not whether this 

Court, in the first instance, could independently find that Local 369’s allegations are sufficient to 

conclude that there is reason to believe that Covanta violated the Federal Election Campaign Act 

(“FECA”). Id.; see also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (explaining that 

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“‘extremely deferential standard’” applies to “FEC’s determination that a complaint failed to 

establish ‘reason to believe’”). In other words, to affirm the Commission’s dismissal of Local 

369’s administrative complaint, the Court need not conclude that the Commission’s decision was 

the same one “the court would have reached if the question initially had arisen in a judicial 

proceeding.” DSCC, 454 U.S. at 39. 

Local 369 apparently misunderstands this distinct “role the district court plays when it 

reviews agency action.” Marshall County, 988 F.2d at 1225. Like the appellants in Marshall 

County, Local 369 appears to assert that its claim that “the FEC erred in dismissing [its] 

administrative complaint” (Opp’n at 2) is “similar to factual allegations — allegations [Local 

369 is] entitled to ‘prove’ as if the complaint alleged” that a Commissioner negligently 

committed a tort. See Marshall County, 988 F.2d at 1225 (rejecting appellants’ contention that 

their claim that Secretary of Health and Human Services “acted arbitrarily and capriciously” is 

“entitled to [be] ‘prove[n]’ as if the complaint alleged that the Secretary, driving her car 

negligently, had run into one of [appellants’] hospitals”). But this assertion is wrong. “The 

district court sits as an appellate tribunal” in cases such as this one, id., and “[t]he entire case on 

review is a question of law, and only a question of law,” id. at 1226. “And because a court can 

fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to 

reaching the merits at the 12(b)(6) stage.” Id. “[Local 369’s] complaint, properly read, actually 

presents no factual allegations, but rather only arguments about the legal conclusion to be drawn 

about the agency action.” Id. Thus, although Local 369 is correct that “a Rule 12(b)(6) Motion 

deals only with the ‘legal sufficiency of a claim’” (Opp’n at 5), it fails to recognize that in this 

case, “the sufficiency of the complaint is the question on the merits, and there is no real 

distinction in this context between the question presented on a 12(b)(6) motion and a motion for 

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summary judgment.” Marshall County, 988 F.2d at 1226. Local 369 is thus mistaken in its 

assertion that the Commission’s “dual claims” concerning deference to the Commission’s 

administrative decision and the reasonability of that decision “do not belong in a motion to 

dismiss.” (Opp’n at 5.) 

II. LOCAL 369 CANNOT SURVIVE A MOTION TO DISMISS BY RELYING UPON 

ITS OWN CONCLUSORY CHARACTERIZATIONS OF THE FACTS 

A. The Court Need Not Accept As True Local 369’s Legal Conclusions 

“[T]he tenet that a court must accept a complaint’s allegations as true is inapplicable to 

threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” 

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1940 (2009) (citing Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007)). Nor does that tenet apply to “a legal conclusion couched 

as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). 

The Opposition ignores this precedent and simply asserts that “the Court should accept as 

true” Local 369’s legal conclusion “that the Covanta Handbook encourages or facilitates 

contributions to the Covanta federal PAC.” (Opp’n at 2.) But Local 369 cannot avoid judgment 

against it simply by mischaracterizing this legal question as a “disputed question of fact.”1 

(Opp’n at 2.) Indeed, in this case, there are no facts in dispute: Local 369’s entire claim is based 

on the undisputed contents of the Covanta Policy, a document that Local 369 has attached to and 

incorporated in the Complaint. “As there is no dispute as to the facts of this case, the matter is 

appropriate for disposition on the basis of the pleadings and attached documents.” Orenbuch v. 

 

1

 If this argument were correct, any plaintiff could defeat a motion to dismiss in an action 

under 2 U.S.C. § 437g(a)(8) simply by mischaracterizing the Commission’s legal conclusion as a 

disputed fact, even in cases like this one where there is no dispute about the facts concerning the 

entity that allegedly violated the law. 

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Computer Credit, Inc., No. 01 Civ. 9338 JSM, 2002 WL 1918222, at *1 (S.D.N.Y. Aug. 19, 

2002) (granting Rule 12(b)(6) motion to dismiss). 

Nor is Local 369 correct that the Court simply must accept as true what plaintiff calls 

“mixed question[s] of law and fact.” (Opp’n at 4 (emphasis omitted).) The Supreme Court has 

held that “where the question is one of specific application of a broad statutory term in a 

proceeding in which the agency administering the statute must determine it initially, the 

reviewing court’s function is limited.” Nat’l Labor Relations Bd. (“NLRB”) v. Hearst Publ’ns, 

Inc., 322 U.S. 111, 131 (1944), overruled in part on other grounds, Nationwide Mut. Ins. Co. v. 

Darden, 503 U.S. 318 (1992). Thus, even if viewed as a “mixed question,” the Commission’s 

specific application of its own interpretation of the meaning of “solicitation” in the 

administrative proceeding below “is to be accepted if it has ‘warrant in the record’ and a 

reasonable basis in law.” Id. See also Fulani v. FCC, 49 F.3d 904, 912 (2d Cir. 1995) (applying 

“‘reasonable basis’ standard” in reviewing Federal Communication Commission determination 

that a “broadcaster exercise[d] ‘sufficient control over the content and format of [a] program’”) 

(citing NLRB, 322 U.S. at 130-31; In re Request of U.S. News and World Report, L.P., for 

Declaratory Ruling, 2 F.C.C.R. 7101, 7102 (1987)). “This standard of scrutiny prescribes 

‘deference’ by th[e] court to the agency’s judgment.” Fulani, 49 F.3d at 912. Local 369’s 

contention that the Court simply must accept “as true” all of the Complaint’s allegations, 

including what plaintiff calls “mixed question[s] of law and fact” (Opp’n at 4 (emphasis 

omitted)), fails to accord any deference to the Commission’s decision and emasculates the 

“contrary to law” standard, which all parties agree applies here. (See Opp’n at 3.) See also 

Hagelin, 411 F.3d at 242; Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

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Moreover, Local 369’s assertion is flawed not only because of its conclusory nature but, 

more fundamentally, because it misstates the question before the Court. As indicated supra in 

Section I, the question here is not, in the first instance, whether “the Covanta Handbook 

encourages or facilitates contributions,” but instead whether the Commission’s prior 

determination of the answer to that question — its dismissal of Local 369’s administrative 

complaint — was reasonable.2 Although Local 369 characterizes the Commission’s arguments 

concerning Chevron deference and the reasonability of the Commission’s underlying 

administrative decision as constituting “[t]he bulk of the Motion,” the Opposition responds to 

neither argument, save for the erroneous assertion that such arguments “do not belong in a 

motion to dismiss” (Opp’n at 5), and the straw-man claim that the Commission “is not entitled to 

so much deference that any petition for review of its actions must be dismissed at the complaint 

stage” (id. at 2).3

B. The Commission Reasonably Concluded That The Covanta Policy Does Not 

Solicit Contributions 

Local 369’s basis for opposing dismissal rests primarily on its characterizations of the 

Covanta Policy, not on any disputed facts about what that Policy states. The Policy, which is 

attached to and incorporated in Local 369’s Complaint, is itself properly before the Court in 

deciding the motion to dismiss, and the language in the Policy speaks for itself. See Tellabs, Inc. 

 

2

 Local 369’s inclusion of a separate motion for leave to amend the Complaint in the 

caption of its Opposition was unnecessary. In any event, Local 369’s proffered amendment — to 

add an allegation “explicitly alleg[ing] that the FEC’s dismissal of Local 369’s complaint was 

unreasonable, as well as unlawful” — would not cure the Complaint’s fatal defect. 

3

 The Commission has never suggested that “any petition for review of its actions must be 

dismissed at the complaint stage.” (Opp’n at 2 (emphasis added).) Instead, the Commission has 

simply invoked the applicable legal standard — which Local 369 asks the Court to eschew — 

that requires dismissal of actions such as this one because the reasonableness of the agency’s 

underlying administrative decision must be upheld based on the complaint, the materials 

incorporated within it, and the applicable law. (Compare Mem. at 7, with Opp’n at 5.) 

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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)); 

Marshall County, 988 F.2d at 1226. Courts are “not obliged to reconcile plaintiffs’ own 

pleadings that are contradicted by other matters . . . incorporated by reference by a plaintiff in 

drafting the complaint.” Fisk v. Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005); see also 

IAC/InterActivCorp Sec. Litig., 478 F. Supp. 2d 574, 585 (S.D.N.Y. 2007) (“Nor should a court 

accept allegations that are contradicted or undermined by . . . written materials properly before 

the court.”). 

The Opposition identifies no reason for the Court to reject the Commission’s 

interpretation and to hold instead that Local 369’s proffered conclusion is the only reasonable 

one: that, in its view, the Covanta Policy “effectively invites contributions to Covanta’s federal 

PAC.” (Compl. ¶ 31 (emphasis added).) As explained in the Commission’s Memorandum, 

Local 369 makes that assertion in part by inaccurately paraphrasing the actual language in the 

Covanta Policy, changing the subject of the sentence in question and inserting additional words 

in that sentence. (See Mem. at 11.) The Commission reasonably determined that the actual 

language of the Covanta Policy — a general description of Covanta’s policy regarding political 

contributions that included the clause “contributions to the PAC by eligible employees are 

voluntary” (Compl. Attach. A, Ex. 11, at 11) — neither encourages nor facilitates contributions. 

(See also Mem. at 5-6, 10-11.) The Opposition’s mere reiteration of Local 369’s contrary 

conclusion is insufficient to challenge the reasonableness of the Commission’s determination. 

See Northwest Coal. for Alternatives to Pesticides v. Lyng, 673 F. Supp. 1019, 1024 (D. Or. 

1987). 

Case 1:09-cv-01022-JDB Document 10 Filed 08/21/2009 Page 7 of 10
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C. Local 369 Still Fails To Identify Any Mention of Covanta’s State PAC in the 

Covanta Policy 

The Opposition likewise fails to clarify the purported connection between “a solicitation 

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

Federal PAC at issue in the Complaint.” (Opp’n at 5.) Although the Commission’s 

Memorandum specifically cited Local 369’s “fail[ure] to identify, let alone explain, the supposed 

link between the Covanta Policy and any Covanta state PAC solicitation” (Mem. at 13), even in 

its Opposition Local 369 still fails to identify the supposedly relevant portions of the Covanta 

Policy, instead simply reasserting that “Covanta’s Handbook references all of its political 

activities, whether state or federal in nature” (Opp’n at 5 (emphasis in original).) Here, too, the 

actual language in the Covanta Policy fails to substantiate Local 369’s characterization. And 

Local 369 simply ignores the Commission’s clarification that “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.” (Mem. at 13 (emphasis added).) 

D. Directing Questions About Political Contributions to Covanta’s General 

Counsel Does Not Constitute a Solicitation 

The Opposition also fails to address the relevant authority contradicting Local 369’s 

claim that a statement directing inquires about political contributions to Covanta’s General 

Counsel amounts to a solicitation for contributions. As explained in the Commission’s 

Memorandum, “[t]he 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.” (Mem. at 13-14 (citing 

FEC Advisory Op. 2000-07, 2000 WL 725744, at *1, *3; FEC Advisory Op. 1982-65, available 

at http://saos.nictusa.com/aodocs/1982-65.pdf).) Rather than distinguishing this authority, 

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Local 369 simply offers its own conclusion to the contrary. (Opp’n at 6.) A difference of 

opinion on the Commission’s application of a standard that the Commission has developed, 

however, does not amount to a colorable challenge to the reasonableness of the Commission’s 

legal conclusion. (Mem. at 8 (citing DSCC, 454 U.S. at 39; Northwest Coal. for Alternatives to 

Pesticides, 673 F. Supp. at 1024).) 

E. Local 369 Does Not Deny That Its Interpretation Would Undermine 

Measures Designed To Ensure That Contributions Are Made Voluntarily 

 

The Opposition completely fails to reply to the Commission’s explanation of the policy 

dilemma posed by Local 369’s interpretation of 2 U.S.C. § 441b(b)(3) and 11 C.F.R. § 114.5(a), 

which help ensure that contributions to separate segregated funds are made voluntarily. (See

Mem. at 14-15.) To be sure, a decision finding that a corporation violated the FECA and 

Commission regulations by advising its employees of the voluntary nature of any contributions 

they make to the corporation’s federal PAC would conflict with the fundamental objective of the 

very provisions Local 369 seeks to invoke. 

CONCLUSION 

 For the foregoing reasons and those explained in the Commission’s Memorandum, 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 

Case 1:09-cv-01022-JDB Document 10 Filed 08/21/2009 Page 9 of 10
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/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: August 21, 2009 (202) 694-1650 

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