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Tierney v. Federal Election Commission

March 12, 2008


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Thomas P. Tierney seeks judicial review of the dismissal by defendant Federal Election Commission ("FEC") of his administrative complaint challenging the Massachusetts Republican State Congressional Committee's campaign spending in 2004. The FEC has moved to dismiss for lack of standing, or alternatively for summary judgment on the ground that the FEC's decision to dismiss Tierney's administrative complaint was not "contrary to law" under 2 U.S.C. § 437g(a)(8)(C). For his part, Tierney has moved for judgment on the pleadings. For the reasons explained below, the Court will grant the FEC's motion and deny Tierney's motion.


Shortly before the 2004 election, in which he was a candidate, Tierney filed an administrative complaint with the FEC asserting that the Massachusetts Republican State Congressional Committee ("Mass. Repub. Committee") unlawfully failed to spend funds to support Republican candidates for federal office in Massachusetts. He alleged that the Mass. Repub. Committee improperly spent most of more than $3 million in federal contributions received during the 2004 election cycle on state and local campaigns rather than federal campaign activity.

The FEC considered Tierney's complaint and determined that, based on the facts asserted, there was no basis to conclude that the Mass. Repub. Committee had violated the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-55 ("the Act" or "FECA"). Adopting the First General Counsel's Report,*fn1 the FEC concluded that although FECA limits and governs how federal funds are raised, it does not restrict the use of federal funds by state political parties. FECA therefore neither requires the Mass. Repub. Committee to spend its federal funds on congressional candidates nor bars it from spending federal funds on state and local elections -- the choice is entirely up to a state party's committee to decide how to spend its federal funds. The FEC voted unanimously to adopt the General Counsel's recommendation and dismiss Tierney's administrative complaint. Tierney then sought review of that decision in this Court.


The FEC contends both that Tierney lacks standing to pursue this action and that, even if he has standing, the dismissal of Tierney's administrative complaint by the FEC was not contrary to law. The Court agrees with the FEC on both points.

I. Tierney Has Not Established Standing

Determining standing is a threshold jurisdictional requirement. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Kucinich v. Bush, 236 F. Supp. 2d 1, 3 n.5 (D.D.C. 2002). Tierney, as plaintiff in this action, has the burden of establishing his standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). By now, the three "irreducible constitutional minimum" elements of standing that must be shown are quite familiar: an injury-in-fact, a causal relationship between that injury and the action that is challenged, and the likelihood that the injury can be redressed by the relief sought in court. Lujan, 504 U.S. at 560-61. The Supreme Court has emphasized that the injury asserted must be "concrete and particularized" and "actual or imminent," and not "conjectural" or "hypothetical" or merely a generalized grievance about government. Id. at 560, 573-74; see also FEC v. Akins, 524 U.S. 11, 23 (1998). Moreover, with respect to causation (or traceability), the injury must be fairly traceable to the challenged action of the defendant, rather than resulting from a third party's independent action, and standing is "substantially more difficult" to establish when an asserted injury results from "the government's allegedly unlawful regulation (or lack of regulation) of someone else." Lujan, 504 U.S. at 560-62 (emphasis in original).

Tierney's action is apparently brought pursuant to 2 U.S.C. § 437g(a)(8). However, that provision "does not confer standing; it confers a right to sue upon parties who otherwise already have standing." Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). While Tierney appears to assert that he has been harmed by the decision of the Mass. Repub. Committee not to assist his 2004 campaign financially, "'[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.'" Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1022 (D.C. Cir. 1988) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). The FEC has argued, then, that as a former candidate without plans to seek future office, Tierney's claim of past injury is not an injury-in-fact sufficient to confer standing in this action seeking injunctive relief only.

Tierney has now clarified that he also is a candidate in the September 4, 2007 special primary for a Massachusetts congressional seat, although that election, too, has now passed. But he has not explained what future injury he will face given that he appears to have conceded that the Mass. Repub. Committee is not required to provide financial support to his particular candidacy. Hence, a "concrete and particularized" injury-in-fact remains lacking here.

So, too, Tierney has not met the traceability and redressability prongs of the standing test. His injury was not caused by the FEC's conduct in dismissing his administrative complaint, but by the independent actions of a third party -- the decision of the Mass. Repub. Committee not to spend its federal funds to support Tierney's 2004 candidacy (or even his 2007 candidacy). The specific decision not to provide him any financial support, then, is not traceable to the FEC or to FECA more generally. See Lujan, 504 U.S. at 560-61; Albanese v. FEC, 78 F.3d 66, 68 (2d Cir. 1996) (FECA does not require contributions to any candidate, but only limits the permitted amounts of contributions; hence, the claimed injury was not attributable to FECA). And even if Tierney is conjecturing that the Mass. Repub. Committee will not spend its funds to support his candidacy in any future election, that hypothetical possibility likewise would not be traceable to any action of the FEC or requirement of FECA. Finally, the relief he seeks -- a "forensic accounting" of the Committee's disbursements during the 2004 election and establishment of an "operational standard" for such spending, and an order restoring certain funds to the Committee --would not seem to remedy his own alleged injury during the 2004 campaign or concerns that the Committee might decide not to spend its federal funds on him in the future.

For these reasons, Tierney has not met his burden to establish the essential elements of standing -- injury-in-fact, traceability and redressability. He therefore does not have standing and the FEC's motion ...

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