United States District Court for the District of Columbia
ALLIANCE FOR DEMOCRACY, et al., Plaintiffs,
FEDERAL ELECTION COMMISSION, Defendant.
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 declare . . . the failure to act is contrary to law,
and may direct the Commission to conform with such a declaration
within 30 days." Id.
The D.C. Circuit has explained that "[w]hen the FEC's failure
to act is contrary to law, we have interpreted § 437g(a)(8)(C) to
allow nothing more than an order requiring FEC action." Perot v.
FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). Here, the order the
Circuit court speaks of would be nothing more than an order
directing the FEC to do what it has already done. The
conciliation agreement and closing of the administrative file
mark the end of the enforcement process under § 437g(a) and foreclose any possible relief under § 437g(a)(8) based on the
FEC's failure to act.
1. The Common Cause and TRAC factors further demonstrate
that this case is moot.
Since the inception of this case, plaintiffs have sought to
prove that the Commission has unreasonably delayed its
consideration of Alliance's administrative complaint. Alliance
has argued that the Common Cause and TRAC factors "provide
the legal standard that the Court must apply in reviewing the
[FEC's] conduct pursuant to § 437g(a)(8)." Pls.' Reply Mem. in
Supp. of Mot. to Hold Summ. J. in abeyance. See also Common
Cause v. FEC, 489 F.Supp. 738 (D.D.C. 1980); Telecommunications
Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984).
However, since the FEC has completed its investigation, these
factors no longer apply.
For example, the Common Cause factors involve considering the
"the resources available to the agency." Common Cause,
489 F. Supp. at 744. Since the agency has expended all the resources
needed to complete the investigation, this factor is no longer
applicable. Similarly, any analysis of the "information available
to the [FEC]" is inapplicable when the FEC needs no further
information because it has completed its investigation. Id. Likewise, the TRAC factors do not apply. For example,
evaluating the "effect of expediting delayed action on agency
activities of a higher competing priority" would be irrelevant
since it is no longer possible for the Commission to expedite an
already completed investigation. TRAC, 750 F.2d at 80.
Plaintiffs argue that the "failure to act" claim does not
assess whether the agency was acting reasonably at the moment of
judgment, but rather whether the investigation was unreasonably
delayed over the course of the administrative proceeding. See
e.g., Democratic Senatorial Campaign Committee v. Federal
Election Commission ("DSCC") Civ. No. 95-0349, slip op. at 4
(D.D.C. April 17, 1996). However, in Common Cause, Judge Parker
noted that "[w]ere the Court not now presented with executed
conciliation agreements . . . the Court would undoubtedly find
the conduct of the investigation contrary to law."
489 F. Supp. at 744. This Court agrees with
Judge Parker's suggestion that the "failure to act" or "delay in
acting" cause of action is terminated by a conciliation agreement.
Thus, it appears to the Court that the Common Cause and TRAC
factors do not apply when there is no pending administrative
complaint. 2. No exception to the mootness doctrine applies.
The fact that twenty-nine months have passed since this case
was filed demonstrates that allegations of unreasonable delay
under § 437g(a)(8) can be reviewed by the court before becoming
moot. The "capable of repetition yet evading review" doctrine is
two elements combine: (1) the challenged action was
in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining
party would be subjected to the same action again.
Pharmachemie v. Barr Laboratories, Inc, 276 F.3d 627
, 633 (D.C.
Cir. 2002). "The capable of repetition doctrine applies only in
exceptional situations, and generally only where the named
plaintiffs can make a reasonable showing that [he or she] will
again be subjected to the alleged illegality." Los Angeles v.
Lyons, 461 U.S. 92, 109 (1983).
a. The challenged action is not too short to be fully
Plaintiffs argue that § 437g(a)(8)(A) itself anticipates that
unlawful delay may occur after as little as 120 days and that
courts have found delay for failure to act after as little as
five months. See Citizen for Percy, 1994 WL 6601, *4 (D.D.C.
1984). However, it appears to this Court that the 120 day period is of jurisdictional significance and does not bear on whether
the agency's alleged failure to act is contrary to law. Perot,
97 F.3d at 558. Further, plaintiffs claim that an agency could
delay acting on a complaint for months or years, act immediately
before adjudication of a "failure to act" lawsuit, and the agency
could effectively avoid review. Agency conduct lasting less than
two years has been found too short as to evade review. See
Burlington Northern Railroad Co. v. Surface Transportation Bd.,
75 F.3d 685, 690 (D.C. Cir. 1996).
Cases brought under § 437g(a)(8), however, do not challenge
activity that, by its very nature, is short in duration. The D.C.
Circuit has determined that some investigations can reasonably
take more than two years. In re Nat'l Congressional Club, 1984
WL 148396, *1. The applicable statute of limitations provides
five years for the FEC to file suit seeking civil penalties.
28 U.S.C. § 2462. Moreover, some § 437g(a)(8) cases have been
litigated to conclusion, which makes it unlikely that such cases
are inherently, or even likely, to evade review. Democratic
Senatorial Campaign Comm. v. FEC, 139 F.3d 951 (D.C. Cir. 1998);
National Congressional Club v. FEC, 1983 WL 148396, *1 (D.C.
Plaintiffs note that in DSCC II the district court found
unlawful delay even though it explicitly noted that the delay was over and "there had been no showing that the FEC has resumed its
lethargy." Democratic Senatorial Campaign Committee v. FEC
("DSCC") Civ No. 95-0349, slip op. at 2 (D.D.C. April 17,
1996). While plaintiffs are correct in arguing that the district
court ruled that there had been an unlawful delay even though the
delay was over, in that case, the administrative review had not
concluded, as it has here. In DSCC, the court was concerned
that the agency could "implement a start-stop approach" depending
on whether or not a complaint was pending in court. DSCC, slip
op. at 19-20. However here, agency action has concluded, so this
Court does not share that concern.
b. There is no reasonable expectation that the same plaintiffs
would be subjected to the same action.
Plaintiffs argue that to qualify for the "capable of repetition
yet evading review" exception, plaintiffs need not show with
certainty that they will be injured by delay in future cases, but
rather a "reasonable expectation" that their injury could recur.
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Supreme
Court has applied the doctrine to "controversies capable of
repetition based on expectation that, while reasonable, were
hardly demonstrably probable." Honing v. Doe, 484 U.S. 305, 318
n. 6 (1988). The D.C. Circuit has found a reasonable expectation that a party's injury could recur even in
circumstances rather unlikely to recur. See British Caledonian
Airways v. Bond, 665 F.2d 1153, 1158 (D.C. Cir. 1981) (on the
reoccurrence of an airplane crash). Plaintiff Alliance, an
organization that "seeks to expose the large amounts of money
spent on political campaigns," argues that it is likely to be
engaged in a similar claim in the future.
Defendant notes that, as of the time it filed the Motion to
Dismiss, plaintiffs did not have any other complaints pending
before the FEC and that the FEC is not likely to be faced again
with the extraordinary demands placed on it by the Bipartisan
Campaign Reform Act of 2002, which defendant alleges was one of
the primary reasons for its initial slowness to respond. Def.'s
Mot. to Dismiss at 14.
Moreover, this case is distinguishable from British Caledonian
Airways. In that case, the Order at issue had been in effect for
only five weeks and the D.C. Circuit held that even emergency
judicial review would not be likely to provide relief from such a
short term Order. 665 F.2d at 1158. Here, where the FEC's
administrative proceeding can take years, there is no comparable
likelihood of evading review. Moreover, Weinstein, the case
cited by plaintiffs, states that there must be a "reasonable expectation that the same complaining party would be
subjected to the same action again." 423 U.S. at 149.
Plaintiffs argue that in election law controversies, the
"capable of review" doctrine does not require that the plaintiffs
themselves be likely to suffer from repetition of the challenged
conduct. Honing, 484 U.S. at 335-6 (Scalia, J. dissenting);
Dunn v. Blumstein, 403 U.S. 330, 333 n. 2 (1972).
However, the rationale of Dunn does not apply here because
Dunn involved a challenge to the fundamental right of voters
that was mooted by an election shortly after the lawsuit was
filed. In that case, the "capable of repetition yet evading
review" exception did apply. Here, this case is not mooted by an
election, but rather, it is mooted by the FEC completing its
administrative process. The fact that the underlying
investigation involved campaign activity does not transform it
into a case involving short-term, election-sensitive deadlines.
Plaintiffs point out that FEC's delay could be repeated in
future actions by the plaintiffs. See Honig v. Doe,
484 U.S. 305, 318 n. 5 (1988). However, this Court finds that plaintiffs'
argument that these same plaintiffs will at some point in the
future have a basis to believe that the Act has been violated,
again file an administrative complaint, and again claim the FEC
unreasonably delayed is far too attenuated. The Supreme Court in Lujan found "[s]uch `some day' intentions without any
descriptions of concrete plans, or indeed even any specifications
of when the some day will be" do not support the finding of an
Article III injury. Id. at 564.
In sum, in order to qualify for the narrow "capable of
repetition yet evading review" exception, a plaintiff must be
able to show both that the duration of the activity is too short
and that the same party would be subjected to actions again.
Pharmachemie, 276 F.3d at 633. Since plaintiffs fail on the
first prong, the second prong is inconsequential.
B. This Court lacks jurisdiction to grant Alliance Declaratory
1. Alliance's Request for Declaratory Relief is Moot.
Plaintiffs assert that this case is not moot because the Court
possess the ability to issue a declaratory judgment that the FEC
acted unlawfully in delaying over forty-one months, as courts
have declared that the FEC's delay was unlawful even while noting
that the delay is over. See Democratic Senatorial Campaign
Committee v. FEC ("DSCC") Civ No. 95-0349, slip op. at 2
(D.D.C. April 17, 1996).
"The [Constitution's] requirement of a case or controversy is
no less strict when a party is seeking a declaratory judgment than for any other relief." Federal Express Corp. v. Air Line
Pilots Ass'n, 67 F.3d 961, 963 (D.C. Cir. 1995). Whether
discussed under the label "standing" or "mootness," the case or
controversy requirement "means that, throughout the litigation,
the plaintiff `must have suffered, or be threatened with, an
actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.'" Spencer v. Kemna,
523 U.S. 1, 7 (1998).
Plaintiffs assert that regardless of a final resolution, there
will still remain an actual, ongoing controversy over the
lawfulness of the agency's delay. Pls.' Opp'n. at 14. In Rose v.
Federal Election Commission, the district court's decision on
remand found that "on or before October 4, 1984, the Commission's
action on plaintiff's complaint was unreasonably delayed contrary
to law" and granted summary judgment for plaintiffs with no
apparent injunctive relief. 608 F. Supp 1, 12 (D.D.C. 1984). This
declaratory relief was ultimately issued long after the 1984
elections, even though it is apparent from both the original
opinion and the opinion on remand that the Court sought to
redress the FEC's failure to act on the 1982 administrative
complaint before the 1984 election. See Rose,
608 F. Supp. at 7-8 and 10-11. Here, Alliance's complaint attacks a specific instance of
agency inaction but does not allege that the FEC has adopted a
policy of delay in processing administrative complaints. See
Compl. & 14. As noted previously, the FEC has acted as requested
in Alliance's complaint. As a general rule, "the mooting of the
specific claim moots any claim for declaratory judgment that the
specific action was unlawful." City of Houston v. Department of
HUD, 24 F.3d 1421, 1429 (D.C. Cir. 1994).
Far from settling a claim between the parties, a declaratory
judgment in this case would amount to nothing more than an
advisory pronouncement that the FEC's past conduct was somehow
contrary to law. For a case or controversy to exist, however, the
relief sought must be capable of redressing the alleged harm.
Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1983).
The federal courts "are not in the business of pronouncing that
past actions which have no demonstrable continuing effect were
right or wrong." Spencer, 523 U.S. at 18. In the related
context of standing, the D.C. Circuit held that a plaintiff who
merely seeks a judicial pronouncement that someone violated the
FECA fails to satisfy the Constitution's jurisdictional
requirements. Judicial Watch Inc. v. FEC, 180 F.3d 277, 278
(D.C. Cir. 1999). Here, plaintiffs did not even seek a judicial
pronouncement that someone violated the FECA. Rather, all plaintiffs seek is a declaration that the FEC took too long to
address that question.
If subsequent events have put an end to the controversy, the
Constitution's case or controversy requirement for declaratory
relief is not satisfied even where there may have been a
controversy when the action was commenced. Golden v. Zwickler,
394 U.S. 103, 108 (1969).
Plaintiffs argue that a declaratory judgment is necessary in
order to give effect to the enforcement provisions of
2 U.S.C. § 437g(a)(8). Plaintiffs claim that to permit the FEC to avoid
judicial review would be to reward its delay. "The deterrent
value of the Act's enforcement provisions are substantially
undermined, if not completely eviscerated, by the FEC's failure
to process administrative complaints in a meaningful time frame."
DSCC, slip op. at 17. Further, the court in Rose stated "the
remedial purpose of the federal election laws would be wholly
undermined if the FEC were to process complaints before it
without any regard to the possible recurrence of a disputed
practice in a succeeding election without any resolution of the
practice's legality." 608 F. Supp. at 7.
While Alliance alleges that "it would be a travesty" if the
Court has no power to decide this case, the fact remains that the
federal courts are courts of limited jurisdiction. "The assumption that if respondents have no standing to sue, no one
would have standing, is not a real reason to find standing."
Valley Forge Christian College v. Americans United for the
Separation of Church and State, 454 U.S. 464, 489 (1982).
Moreover, DSCC and Rose both involved ongoing administrative
matters. The courts in those cases had no occasion to consider
whether they retained jurisdiction after the administrative
matter had concluded.
2. The Court will withhold discretionary relief.
Plaintiffs posit that the public's interest in effective
oversight of the FEC is at stake in this case, which in turn
implicates the protection of the democratic process itself.
Plaintiffs argue that for this reason, the Court should exercise
its discretion to grant declaratory relief.
"[D]iscretionary relief, like all forms of equitable relief, is
discretionary." Penthouse International v. Meese,
939 F.2d 1011, 1019 (1991). A declaration that the FEC took too long to
complete its investigation might bring Alliance subjective
pleasure, but it would have no concrete effect on any party.
Alliance's alleged injury was that it lacked information about a
mailing list transferred from the Spirit of America PAC to
Ashcroft 2000. A declaration about the amount of time the Commission took to investigate that matter will yield no
information about the mailing list itself or provide any other
information useful in voting.
The traditional function of a declaratory judgment is to affect
the parties' future conduct by resolving present disputes over
legal rights and obligations. See e.g., Senate Comm. on the
Judiciary, Declaratory Judgments, S. Rep. No. 1005, at 2 (1934).
Here, granting declaratory relief would be contrary to the
traditional prospective purpose of declaratory relief.
C. Alliance lacks standing under Article III.
Plaintiffs argue that the FEC's failure to act has caused the
plaintiff an informational injury which is well recognized by
case law. FEC v. Akins, 524 U.S. 11, 21-22 (1998). FECA
establishes a right to truthful information regarding campaign
contributions and expenditures, and that right adheres both
before and after the election at issue. See id. at 21.
However, it seems apparent to the Court that Alliance has
failed to allege an Article III injury because plaintiffs already
possess the information they claim to lack. Further, plaintiffs
have failed to show how information about the precise value of a
mailing list and the date it was transferred could have a
concrete effect on plaintiffs' voting in future elections involving different candidates. Plaintiffs have also failed to
persuade the Court that future transgressions could be remedied
by their present request for declaratory relief stating that the
agency's response was unreasonably delayed. "Whenever it appears
by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action." Fed.R. of Civ. P. 12(h)(3).
Moreover, under Article III, it is not enough for Alliance to
allege that it was injured because the Commission unlawfully
delayed the investigation; plaintiffs must show a "discrete
injury flowing from" such alleged delay. Common Cause,
108 F.3d at 418 (quoting Lujan).
As the D.C. Circuit has explained, "[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 the law
has occurred would be tantamount to recognizing a justiciable
interest in the enforcement of the law. This we cannot do." Id.
Had the agency found no violation and dismissed the complaint,
then it seems that plaintiffs may be entitled to the information
they seek so that they could determine whether or not to pursue
the action further. See FEC v. Adkins, 524 U.S. 11, 20-22
(1998). However, since the process has progressed as specified in the statute, it seems that plaintiffs have received
everything they are entitled to under the FECA and this case
shall be dismissed.
D. The Motion to Compel shall be denied as moot.
Because there remains no live controversy between these
parties, the Motion to Compel Responses to Requests for
Production shall be denied as moot.
While the FEC's investigation regarding Ashcroft 2000, the
Spirit of America PAC, and their treasurer Garrett Lott may not
have been as expeditious as plaintiffs desired, the investigation
has now been completed and a conciliation agreement has been
reached. The FEC has completed its obligations under the FECA and
there remains no live controversy between the parties. Thus, this
action shall be dismissed.
An appropriate Order and Judgment accompanies this Memorandum
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