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Federal Election Commission v. Club For Growth

October 10, 2006

FEDERAL ELECTION COMMISSION, PLAINTIFF,
v.
CLUB FOR GROWTH, INC., DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Court

Document No. 23

MEMORANDUM OPINION

DENYING THE DEFENDANT'S MOTION FOR AN INTERLOCUTORY APPEAL CERTIFICATION

I. INTRODUCTION

The Federal Election Commission ("FEC" or "Commission"), brings suit against Club for Growth, Inc. ("Club for Growth"), alleging that the defendant failed to register as a political organization despite spending millions of dollars supporting the Republican National platform during the 2000, 2002, and 2004 elections cycles. The FEC claims that these actions violated the Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431-55.

On June 5, 2006, this court denied the defendant's motion to dismiss. Now, the defendant moves the court to certify its June 5, 2006 decision for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Because the defendant fails to demonstrate a substantial ground for difference of opinion concerning this court's prior ruling, the court denies the defendant's motion.

II. BACKGROUND

This civil action has its roots in an administrative action with the FEC. On May 13, 2003, according to the plaintiff, the Democratic Senatorial Campaign Committee ("DSCC") filed an administrative complaint alleging that the defendant failed to register as a political committee and publicly report its activities. Compl. ¶ 7. The DSCC alleged that Club for Growth's actions (or lack thereof) violated FECA. Id. Four days following receipt of DSCC's complaint, on May 29, 2003, the FEC sent notice of the complaint to Club for Growth, Inc., PAC ("PAC"), the political action committee affiliated with Club for Growth, Inc. Pl.'s Opp'n to Def.'s Mot. to Dismiss at 4. On June 3, 2003, the FEC sent notice of the DSCC's complaint directly to Club for Growth. Id. Club for Growth, acting through its attorney, responded to DSCC's allegations on June 6, 2003.

On October 19, 2004, the Commission adopted a factual and legal analysis originally prepared by the Commission's General Counsel on May 13, 2004. Id. The Commission provided the defendant with a copy of its findings, a notice of opportunity for conciliation, and a subpoena for documents on October 27, 2004. Id. at 4-5. Over the next several months, the parties exchanged numerous items of correspondence in an attempt to conciliate their dispute. Id. at 5-8.

Critical to the defendant's motion to dismiss was an undated letter received by Club for Growth on July 21, 2005. In the letter, the General Counsel of the FEC stated that if the parties were unable to reach an agreement, "the Commission has authorized this Office to file suit in United States District Court." Def.'s Mot. to Dismiss, Ex. 9. On September 19, 2005, the General Counsel of the FEC notified Club for Growth that it had rejected Club for Growth's September 14, 2005 reconciliation offer and filed the instant lawsuit. Id. ¶ 19. On December 5, 2005, the Commission voted to ratify its prior decision authorizing this lawsuit. Pl.'s Opp'n to Def.'s Mot. to Dismiss at 8.

The defendant filed a motion to dismiss arguing principally that the FEC violated FECA by authorizing the General Counsel to initiate this lawsuit prior to the conclusion of the conciliation process. Mem. Op. (June 5, 2006) at 3. The defendant also claimed that the Commission violated FECA in refusing to conciliate in good faith and by failing to provide Club for Growth with timely notice of the administrative action. Id. The court denied the defendant's motion. The court ruled that the plaintiff's failure to provide timely notice constituted harmless error, id. at 5, that the plaintiff is entitled to substantial deference in its conciliation procedures, id. at 6-9, and that the plaintiff properly ratified its prior decision to file suit, id. at 9-13.

The defendant now asks the court to certify its June 5, 2006 ruling for interlocutory appeal. For the reasons that follow, the court denies this request.

III. ANALYSIS

A. Legal Standard for an Interlocutory Appeal ...


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