The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiffs are the Alliance for Democracy, Hedy Epstein, and
Ben Kjelshus. Alliance for Democracy is a non-profit, nonpartisan
grassroots organization advocating the full public funding of
elections. Compl. ¶ 1. Hedy Epstein and Ben Kjelshus are members
of Alliance for Democracy and Missouri voters. Id. ¶¶ 2-3. For
the purposes of this Memorandum Opinion, Plaintiffs will be
collectively referred to as "Alliance." The Federal Election
Commission ("FEC" or "Commission") is the independent agency of
the United States Government empowered with exclusive
jurisdiction to administer, interpret, and enforce the Federal
Election Campaign Act of 1971, as amended ("FECA" or "Act"). See
generally 2 U.S.C. §§ 437c(b)(1), 437d(a) and 437g. Plaintiffs allege that the FEC failed to act or delayed in acting with
regard to the FEC's investigation of Ashcroft 2000, the Spirit of
America PAC, and Garrett Lott, the treasurer of these political
The FEC is authorized to institute investigations of possible
violations of the FECA. 2 U.S.C. §§ 427g(a)(1) and (2). The FECA
permits any person to file a signed, sworn administrative
complaint with the FEC alleging a violation of the Act.
2 U.S.C. § 437g(a)(1).
When a complaint is filed, the FEC notifies the respondents
named in the administrative complaint, who are then given an
opportunity to respond. 2 U.S.C. § 437g(a)(1). After reviewing
the complaint and responses, the FEC then prepares a
recommendation, addressing whether there is a "reason to believe"
a violation of the FECA has occurred. 2 U.S.C. § 437g(a)(2). If
the Commission finds that a reason to believe exists, it can
proceed to "make an investigation of [the] alleged violation,
which may include a field investigation or audit, in accordance
with the provisions of [section 437g(a)]." 2 U.S.C. § 437g(a)(2). At the conclusion of the investigation, the statute authorizes
the FEC's General Counsel to recommend that the Commission vote
on whether there is "probable cause to believe" that the Act has
been violated. 2 U.S.C. § 427g(a)(3). The General Counsel then
prepares a report to the Commission recommending what action
should be taken. 11 C.F.R. § 111.16. Upon consideration of the
briefs and report, the Commission determines whether or not there
is "probable cause to believe" a violation has occurred.
2 U.S.C. § 437g(a)(4)(A)(i). If the Commission finds probable cause to
believe that a violation has occurred, the Commission is required
to attempt to resolve the matter by "informal method of
conference, conciliation, and persuasion, and to enter into a
conciliation agreement" with the respondents.
2 U.S.C. § 437g(a)(4)(A)(i). The Commission is required to attempt to reach
a conciliation agreement for at least 30 days and not more than
90 days. 2 U.S.C. § 437g(a)(4)(A)(i).
If the Commission is unable to resolve the matter through
voluntary conciliation, the Commission may vote to authorize the
filing of a de novo civil suit in district court to enforce the
Act. If the Commission determines that no violation occurred or
dismisses the administrative complaint for some other reason, the
complainant has an opportunity to seek judicial review of that determination. 2 U.S.C. § 437g(a)(8)(A). Section 437g(a)(8) also
allows a party who has filed an administrative complaint with the
Commission to seek judicial review in this Court should the
Commission "fail to act" on a complaint within 120 days.
2 U.S.C. § 437g(a)(8)(A). If the Court finds that the Commission's
dismissal or failure to act was "contrary to law," it may order
the Commission to conform to the Court's decision, but must give
the agency 30 days to do so. 2 U.S.C. § 437g(a)(8)(C).
On March 8, 2001, Alliance filed an administrative complaint.
The Commission processed the complaint and sent notification to
the respondents, who filed responses with the Commission. Def.'s
Mot. Ex. 1-2. On July 10, 2002, the Office of General Counsel
submitted a report recommending that the Commission find "reason
to believe" that the respondents violated the Act. Id. On July
23, 2002, the Commission decided by a 6 to 0 vote to find "reason
to believe" that the Spirit of America PAC and Garrett M. Lott,
as treasurer; Ashcroft 2000 and Garrett M. Lott, as treasurer;
and another entity violated the Act.
On April 23, 2003, the FEC's Office of General Counsel
submitted the General Counsel's Brief to the Commission,
recommending that it find probable cause to believe that the Act
has been violated by Ashcroft 2000, Spirit of America PAC, and Garrett Lott. On June 5, 2003, respondents filed a joint reply to
the FEC's Brief.
On July 2, 2003, the Office of General Counsel provided the
Commission with another report recommending again that it find
probable cause to believe that the Act had been violated by
Ashcroft 2000, Garrett Lott, and Sprit of America PAC, and
recommending no further action with respect to any other entity.
The Commission met on July 8, 2003, and requested additional
investigation. The General Counsel's Office submitted a
supplemental brief on August 25, 2003, and the respondents
submitted a reply brief on September 16, 2003. The General
Counsel renewed its earlier probable cause recommendation. Id.
On September 30, 2003, the Commission found probable cause to
believe that Ashcroft 2000 and its treasurer, Garrett Lott,
violated 2 U.S.C. §§ 441a(f) and 434(b). Id. at 15-16. The
Commission also found probable cause to believe that the Spirit
of American PAC and its treasurer, Garrett Lott, violated
2 U.S.C. §§ 441a(a)(2)(A) and 434(b). Id. Following the
Commission's probable cause determination, the Commission entered
into conciliation negotiations with the respondents. On December
11, 2003, a final conciliation agreement was reached with all of
the administrative respondents: Ashcroft 2000, Spirit of America PAC, and Garrett Lott, the treasurer of those political action
In light of these developments, the FEC argues that plaintiffs
have succeeded in the purpose of their lawsuit spurring the FEC
into action and this case should be dismissed. Plaintiffs argue
that this case is not moot because, in addition to injunctive
relief, plaintiffs seek a Declaratory Judgment stating that the
FEC acted unlawfully in its delay.
The FEC's Motion to Dismiss for lack of jurisdiction as well as
Alliance's Motion to Compel are currently pending. Because this
Court must consider jurisdiction in the first instance, the
Motion to Dismiss shall be considered first.
A. Because the Commission has completed its final action, this
case is moot.
"Article III, section 2 of the Constitution limits federal
courts to deciding `actual ongoing controversies.'" 21st Century
Telsis v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003). A federal
court has no "power to render advisory opinions [or] . . . decide
questions that cannot affect the rights of the litigants in the
case before them." National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). Given the recent events, there is no relief that the Court could provide under
2 U.S.C. § 437g(a)(8)(C) and the FEC has completed the action
sought in plaintiffs' complaint.
Title 2 U.S.C. § 437g(a)(8) allows for limited judicial review
of whether the Commission's "failure to act" on an administrative
complaint is "contrary to law." It appears to this Court that the
FEC has completed all the actions delay of which could arguably
be found "contrary to law" under 2 U.S.C. § 437g(a)(8). Moreover,
the FEC has taken action, so it can no longer be said to have
"failed to act." 2 U.S.C. § 437g(a)(8)(C). The only relief
authorized by the applicable provision is an order in which "the
court may ...