UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER, )

)

Plaintiff, ) Civ. No. 18-53 (TSC)

)

v. )

) REPLY IN SUPPORT OF

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S REPLY 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley Benjamin A. Streeter III

Associate General Counsel Attorney

kdeeley@fec.gov bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

April 9, 2018 (202) 694-1650

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 1 of 13
TABLE OF CONTENTS

 Page

ARGUMENT ............................................................................................................................3

I. A CONCRETE AND PARTICULAR INJURY, NOT A MERE RIGHT 

TO SUE, IS REQUIRED FOR ARTICLE III STANDING..........................................3

II. JUDICIAL WATCH AND OTHER CASES CONFIRM THAT CLAIMANTS IN 

FECA DELAY SUITS MUST DEMONSTRATE A DISCRETE INJURY TO 

THEMSELVES..............................................................................................................7

III. CLC HAS ESSENTIALLY ABANDONED ITS APA CLAIM, WHICH MUST 

BE DISMISSED .........................................................................................................11

CONCLUSION........................................................................................................................12

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 2 of 13
2

Plaintiff Campaign Legal Center’s (“CLC”) opposition to the motion to dismiss filed by 

defendant Federal Election Commission (“Commission” or “FEC”) fails to show that CLC has 

the Article III injury required to maintain this suit alleging a failure to act or unlawful delay by 

the FEC in handling an administrative complaint. (See FEC Mem. in Supp. of Mot. to Dismiss 

(Docket No. 16) (“FEC Mem.”) at 5-12.) CLC argues that its lawsuit should proceed simply 

because the text of 52 U.S.C. § 30109(a)(8)(A) provides CLC with a right to sue if the 

Commission fails to act upon its administrative complaint within a 120-day period. (CLC Mem.

in Opp’n. to FEC’s Mot. to Dismiss (Docket No. 18) (“Opp.”) at 1.) However, Article III 

standing cannot be granted by Congress; instead, CLC must demonstrate a discrete injury. 

As the Commission has shown (FEC Mem. at 7-12), CLC failed to plead any concrete or 

particularized injury here. Far from showing how the FEC’s alleged failure to act on its 

complaint affects CLC “in a personal or individual way,” Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560 n.1 (1992), CLC has merely asserted a general interest in seeing the agency enforce the 

law promptly. But CLC cannot “establish injury in fact merely by alleging that [it] has been 

deprived of the knowledge as to whether a violation of [FECA] has occurred,” Common Cause v. 

FEC, 108 F.3d 413, 418 (D.C. Cir. 1997). 

CLC does not dispute that a party challenging the FEC’s dismissal of an administrative 

complaint under section 30109(a)(8)(A) must show a cognizable injury, but it claims that all 

complainants who allege delay in the processing of their complaints automatically have

constitutional standing, a proposition for which there is no support. On the contrary, a court in 

this district reached the opposite conclusion after a careful analysis that relied heavily on the 

D.C. Circuit’s reasoning in Common Cause, see Judicial Watch v. FEC, 293 F. Supp. 2d 41, 48 

(D.D.C. 2003), and relevant later decisions reflect the same principle. Just as in the dismissal 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 3 of 13
3

context, in which the standing issues have more often arisen, no “discrete injury” flows simply 

from an alleged FEC delay or failure to process an administrative complaint within any particular 

time. Yet consistent with its claim that it needs only a statutory right to sue, CLC makes no real 

effort to show informational or any other injury. Because CLC cannot show any basis for Article 

III standing, there is no jurisdiction for CLC’s claims and this case must be dismissed.

1

 

ARGUMENT

I. A CONCRETE AND PARTICULAR INJURY, NOT A MERE RIGHT TO SUE, 

IS REQUIRED FOR ARTICLE III STANDING

In its opening brief, the Commission showed that plaintiff CLC lacks Article III standing 

to pursue this suit seeking relief for alleged failure to act and/or unlawful delay by the FEC in 

handling CLC’s administrative complaint regarding contributions that GEO Corrections 

Holdings, Inc. (“GC Holdings”) allegedly made in violation of the Federal Election Campaign 

Act’s (“FECA”) ban on federal contractor contributions. The FEC showed that CLC has no 

Article III standing because it has failed to allege or demonstrate any concrete and particularized 

injury, and the FEC explained that standing cannot rest on a broad desire to see federal law 

enforced. (See FEC Mem. at 7-9.) In particular, CLC has failed to establish any informational 

injury because a mere desire for a determination by the FEC that FECA’s ban on federal 

contractor contributions was violated is insufficient. (Id. at 9-12.) Thus, CLC’s suit must be 

dismissed for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). 

CLC now asserts (Opp. at 1-7) that FECA creates what CLC calls a “substantive right”

for all administrative complainants to maintain lawsuits alleging a failure to act, relying 

 1 CLC also makes a claim of unreasonable delay pursuant to the Administrative Procedure 

Act (“APA”), 5 U.S.C. § 706(1), but the FEC showed that the APA claim must be dismissed 

because FECA’s judicial review procedures are adequate (FEC Mem. at 12-15), and CLC now 

appears to have essentially abandoned the claim (see Opp. at 11 n.7).

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primarily on a concurrence in Lujan and cases involving failures to respond to rulemaking 

petitions. However, these authorities are either not controlling or inapposite, and they do nothing 

to change the clear requirement that claimants like CLC must show a discrete injury, as 

confirmed by the majority opinion in Lujan and the many cases that have followed it. (See FEC 

Mem. at 5-6.) And CLC’s reliance (Opp. at 2-4, 6-7) on cases like In re American Rivers and 

Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004), is woefully misplaced. American Rivers 

had nothing to do with Article III standing. The Court of Appeals did conclude that even if an 

agency had the discretion to reject a rulemaking petition, that authority did not constitute a 

reason for finding an unlawful delay suit unavailable. 372 F.3d at 418-19. There was, however, 

no challenge to the standing of the plaintiffs in that opinion. Id. And although plaintiffs do cite 

to one out-of-circuit district court decision with a conclusory statement that the plaintiffs in that 

case possessed standing, the opinion contains no analysis of the particularized injury 

requirement. Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 539 (S.D.N.Y. 2009). 

That may be because the case involved conditions at immigration detention facilities and the 

plaintiffs included two foreign nationals who had themselves been detainees, thus presenting a 

far more concrete potential injury than plaintiff alleges here. In any event, Families for Freedom 

is contrary to the directly applicable authority in this jurisdiction on which the Commission 

relies, as explained below. See infra Part II.

To the extent that CLC is claiming that it need not demonstrate a discrete injury because 

Congress created a “substantive” right to file delay suits in section 30109(a)(8), that right is more 

properly considered a procedural one. A “procedural right” is defined as a “right that derives 

from legal or administrative procedure; a right that helps in the protection or enforcement of a 

substantive right.” Landrum v. Blackbird Enters., LLC, 214 F. Supp. 3d 566, 570 (S.D. Tex. 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 5 of 13
5

2016) (quoting Black’s Law Dictionary (10th ed. 2014)). A substantive right, by contrast, is one

“that can be protected or enforced by law; a right of substance rather than form.” Id. In fact, the 

D.C. Circuit described those allegedly harmed solely by an FEC failure to act under section 

30109(a)(8)(A) as suffering an asserted injury that “parallels the ‘procedural injury’ the Supreme 

Court held insufficient in Lujan.” Common Cause, 108 F.3d at 418.

FECA’s structure and legislative history indicate that delay suits do not create a right of 

substance. FECA contains no provision imposing upon the Commission any specific time period 

in which to complete the processing of an administrative complaint. And contrary to CLC’s 

claims about resolving FEC matters before elections (Opp. at 8-11 & n.5), there is no particular 

time frame in which the Commission must act on an administrative complaint. Indeed, the D.C. 

Circuit summarily reversed another district court’s application of a presumption that the agency 

was required to address such matters even within a two-year cycle. See In re Nat’l Cong. Club, 

Nos. 84-5701, 84-5719, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984) (per curiam); accord

Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (explaining that section 30109(a)(8) is 

“specific,” “purposely designed to ensure fairness not only to complainants but also to 

respondents,” and that “in formulating those procedures Congress, whose members are elected 

every two or six years, knew full well that complaints filed shortly before elections, or debates, 

might not be investigated and prosecuted until after the event” but nevertheless chose not “to 

allow judicial intervention in the face of such exigencies”). Similarly, as the FEC previously 

explained, the statutory 120-day period is simply a jurisdictional threshold before which suit may 

not be brought, not a timetable within which the Commission must resolve an administrative 

complaint. See Mem. at 3-4; Stockman v. FEC, 138 F.3d 144, 152 (5th Cir. 1998) (FECA “does 

not creaet a deadline in which the FEC must act” on administrative complaints). 

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The legislative history plaintiff cites, the floor remarks of Senator Claiborne Pell (Opp. at 

4 n.1), also provides strong support for the proposition that the right to challenge a failure to act 

is merely a procedural right designed to protect the substantive right to challenge the dismissal of 

an administrative complaint found in section 30109(a)(8). As Senator Pell stated, giving

administrative complainants the right to sue for failure to act on complaints ensures that the 

“Commission does not shirk its responsibility to decide” whether to pursue the case. Id. Failure 

to act suits protect the substantive right to challenge unlawful dismissals. 

As the Supreme Court has already concluded, “deprivation of a procedural right without 

some concrete interest that is affected by the deprivation – a procedural right in vacuo – is 

insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009). In Summers, the plaintiffs alleged that they were deprived of the opportunity to 

comment on a proposed salvage sale of standing timber in violation of U.S. Forest Service 

regulations. The court concluded that “[o]nly a person who has been accorded a procedural right 

to protect his concrete interests can assert that right without meeting all the normal standards for 

redressability and immediacy.” Id. (emphasis in original). CLC relies heavily upon the fact that 

Congress passed section 30109(a)(8)(A)’s failure to act provision, but “[i]t makes no difference 

that the procedural right has been accorded by Congress.” Id. Although passage of such a right 

“can loosen the strictures of the redressability prong” of the standing inquiry, “the requirement of 

injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” 555 

U.S. at 497 (emphasis added). Plaintiffs bringing citizen suits must show that they are injured 

“in a concrete and personal way”; actions that seek “to vindicate the public’s nonconcrete 

interest in the proper administration of the laws” which are “at the behest of Congress” but 

without “any showing of concrete injury” would “exceed Article III’s limitations.” Id. (internal 

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7

quotations omitted). Thus, “Congress' role in identifying and elevating intangible harms does 

not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute 

grants a person a statutory right and purports to authorize that person to sue to vindicate that 

right. Article III standing requires a concrete injury even in the context of a statutory violation.” 

Spokeo, Inc. v. Robins, ___ U.S. ____, 136 S. Ct. 1540, 1548 (2016). 

Despite all this, CLC flatly asserts that for standing purposes, “CLC’s injury-in-fact is the 

FEC’s failure to act upon its administrative complaint.” (Opp. at 4.) CLC relies on Justice 

Kennedy’s concurrence in Lujan for the general principle that Congress can create new statutory 

rights or entitlements that can support standing. (Id. at 2, 4.) But that same concurrence 

emphasized that “Congress must at the very least identify the injury it seeks to vindicate and 

relate the injury to the class of persons entitle to bring suit,” and under Article III “the party 

bringing suit must show that the action injures him in a concrete and personal way.” 504 U.S. at 

579 (internal quotations omitted). All plaintiffs, including CLC, must establish the “irreducible 

constitutional minimum” of standing as articulated by the majority in Lujan. 504 U.S. at 560-61. 

But CLC makes no effort to demonstrate any concrete injury in this case. Instead, as the FEC 

showed (Mem. at 7-9), CLC desires only to see the law generally enforced, which is insufficient 

to support standing. 

II. JUDICIAL WATCH AND OTHER CASES CONFIRM THAT CLAIMANTS IN 

FECA DELAY SUITS MUST DEMONSTRATE A DISCRETE INJURY TO 

THEMSELVES

It is clear that those who seek to maintain a challenge alleging that the FEC has 

unlawfully delayed or failed to act on an administrative complaint under section 30109(a)(8) 

must show a concrete and particularized injury to support Article III standing. CLC argues 

(Opp. at 5-6) that the Commission errs in relying mainly on FECA dismissal cases to show that 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 8 of 13
8

CLC has this burden and has failed to carry it, claiming that delay cases are entirely different

because they involve allegations of “inaction” rather than “action” in the FECA context. But 

CLC fails to clearly explain why that distinction is material here and it offers no direct legal 

support. 

In fact, as CLC admits (Opp. at 6-7), at least one key decision in this district came to the 

opposite conclusion. In Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003), 

plaintiffs brought suit against the Commission pursuant to section 30109(a)(8), alleging that the 

agency had failed to timely respond to or investigate an administrative complaint within 120 

days. The court rejected claims of informational injury, but it went on to separately address one 

plaintiff’s “claim that the Commission’s delay in responding to his claim is, in and of itself, an 

injury in fact . . . separate from informational injury.” Id. at 48. The court found “no basis in the 

law for this position.” Id. Noting that the claim amounted to an assertion that the FEC’s 

“delinquency in acting on [the administrative] complaint deprived [plaintiff] of the benefit of 

FECA’s timetable for processing complaints,” id., the court evaluated the claim in light of the 

D.C. Circuit’s guidance in Common Cause, 108 F.3d at 418-19, in which “a similar situation was 

presented,” Judicial Watch, 293 F. Supp. 2d at 48. The Common Cause plaintiff had claimed

that the FEC’s failure to provide “a prompt and lawful resolution of the complaint” had deprived 

the plaintiff of “a statutorily promised benefit that is personal to the complainant,” but the D.C. 

Circuit rejected that argument for standing, explaining that it paralleled the kind of “procedural 

injury” that Lujan had found insufficient. Id. “The [D.C. Circuit] made clear that while the 

FEC’s failure to act within the 120-day period of [section 30109(a)(8)(A)] conferred a right to 

sue, it did not also confer standing.” Judicial Watch, 293 F. Supp. 2d at 48 (emphasis in 

original). Instead, the provision “confers a right to sue upon parties who otherwise already have 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 9 of 13
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standing.” Id. (quoting Common Cause, 108 F. 3d at 419) (emphasis added by Judicial Watch). 

Applying Common Cause, the Judicial Watch court thus concluded that the plaintiff before it had 

presented only a “procedural injury” and that an administrative complainant could not “establish 

standing merely by asserting that the FEC failed to process its complaint in accordance with

law.” Id. (quoting Common Cause, 108 F.3d at 419). 

Of course, trying to base standing merely on an alleged FEC failure to “process [a] 

complaint in accordance with the law” is precisely what CLC is doing here. And CLC’s efforts 

to minimize the force of Judicial Watch’s reasoning are unavailing. In particular, CLC’s reliance 

(Opp. at 6-7) on American Rivers is again misplaced, since that case had nothing to do with 

Article III standing. See supra p. 3; 372 F.3d 413.

Later cases from this District that do address standing to bring delay suits pursuant to 

section 30109(a)(8) reflect agreement with the analysis in Judicial Watch. In Alliance for 

Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004), the court held, inter alia, that plaintiffs 

had failed to establish informational injury sufficient to support standing for claims that the FEC 

had failed to act on their complaint. The court added that “under Article III, it is not enough for 

[a plaintiff] to allege that it was injured because the Commission unlawfully delayed the 

investigation; plaintiffs must show a ‘discrete injury flowing from’ such alleged delay.” Id. at 48

(citing Common Cause, 108 F.3d at 418 (quoting Lujan)). And in the later dismissal action 

related to the 2004 Alliance for Democracy decision, the court relied heavily on the Judicial 

Watch analysis in finding that a lack of informational injury precluded standing to challenge the 

dismissal of an administrative complaint, showing that the injury analysis is in fact comparable

in the delay and dismissal contexts. All. for Democracy v. FEC, 362 F. Supp. 2d 138, 147-49 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 10 of 13
10

(D.D.C. 2005). Whether the FEC is not pursuing administrative respondents due to alleged delay 

or dismissal, the claimants’ alleged injury is still rooted in the same thing.

CLC still makes no real effort to show informational injury, consistent with its position 

that delay claimants need not show any injury beyond delay itself. CLC does now suggest in a 

footnote (Opp. at 6 n.4) that it does not know the “true source” of GC Holdings’ reported

contributions, suggesting that its alleged parent GEO Group may be the source. However, CLC 

makes no effort to show how that alleged uncertainty has caused it any informational injury. 

And in any case, standing must be shown in CLC’s complaint. As the FEC explained (Mem. at 

3-4), the judicial complaint “must contain sufficient factual matter, accepted as true, to ‘state a 

claim [of standing] that is plausible on its face,’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 

2015) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), and “the 

necessary factual predicate may not be gleaned from the briefs and arguments,” FW/PBS Inc. v. 

City of Dallas, 493 U.S. 215, 235 (1990) (internal quotation marks omitted). CLC’s court 

complaint does not show informational injury. 

In sum, even though delay suits are authorized by FECA, the cases above make clear that 

CLC cannot assume, as it does, that an allegation of a failure to act under section 30109(a)(8)

alone gives it standing. CLC must instead show how the Commission’s alleged delay has caused 

particularized injury to CLC’s interests. CLC asserts that unless its delay suit is permitted to 

proceed, the FEC will be able to insulate itself from “meaningful judicial review.” (Opp. at 10-

11 & n.6.) However, judicial review remains available for delay claims where plaintiffs have 

standing, just as with dismissal claims. In effect, CLC argues that Congressional intent will be 

frustrated if the same standards that apply to dismissal suits also apply to delay suits. But CLC 

fails to explain why the scope of constitutional standing to bring delay suits would be broader 

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 11 of 13
11

than that for dismissal suits. Under the principles of Lujan, Summers, and Common Cause, it is 

clear that Congress cannot create constitutional standing legislatively and that parties enforcing a 

procedural right like that established by FECA’s failure-to-act suit provision must still show 

Article III standing. Because CLC has shown no concrete or particularized injury, it lacks 

standing. And because CLC has failed to present an Article III case or controversy, the FEC’s 

motion to dismiss should be granted. 

III. CLC HAS ESSENTIALLY ABANDONED ITS APA CLAIM, WHICH MUST BE 

DISMISSED 

Finally, plaintiff all but concedes that its APA claim should be dismissed. As the FEC 

showed (Mem. at 12-15), FECA itself provides an adequate mechanism for judicial review of

allegations that the agency has failed to act on administrative complaints, through section 

30109(a)(8)(A). CLC makes no effort to rebut any of the Commission’s arguments in this 

regard, but merely offers a cryptic footnote stating that CLC “does not object” to dismissal of the 

APA claim if “the Court concludes section 30109(a)(8)(A) provides an adequate mechanism for 

judicial review.” (Opp. at 11 n.7.) That is insufficient to preserve CLC’s APA claim.

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12

CONCLUSION

For the above reasons, the FEC’s motion to dismiss should be granted. CLC has failed to 

demonstrate the concrete and particularized injury necessary to establish Article III standing.

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov hsummers@fec.gov

Kevin Deeley Benjamin A. Streeter III

Associate General Counsel Benjamin A. Streeter III

kdeeley@fec.gov Attorney

bstreeter@fec.gov

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

April 9, 2018 (202) 694-1650

Case 1:18-cv-00053-TSC Document 19 Filed 04/09/18 Page 13 of 13