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Citizens for Responsibility and Ethics in Washington v. Federal Election Commission

United States District Court, District of Columbia

January 30, 2017



          RICHARD J. LEON United States District Judge

         Plaintiffs Citizens for Responsibility and Ethics in Washington ("CREW") and its executive director, Noah Bookbinder, bring this suit alleging that the Federal Election ' Commission ("FEC") wrongfully decided not to investigate allegations they identified in a 2012 administrative complaint they filed with the FEC. Plaintiffs, there "complainants, " alleged that the Murray Energy Corporation, along with Robert Murray, the company's chairman, president and CEO, coerced its employees into making donations to federal candidates and to the Murray Energy Corporation Political Action Committee ("Murray Energy PAC") in violation of the Federal Election Campaign Act ("FECA"). See Compl. ¶ 1 [Dkt. #1], When the FEC declined to investigate those allegations, plaintiffs brought this suit under both the Administrative Procedure Act (5 U.S.C. § 706) and the provision of the FECA that creates a mechanism for private citizens to complain to the FEC about suspected violations and to ask for judicial review of the FEC's decision not to investigate (52 U.S.C. § 30109). Id. In order to get judicial review of the FEC's decision, however, the complainant must be an aggrieved party who suffers an injury in fact from the violation he alleges in the complaint. For the reasons explained below, I hold that the plaintiffs in this case do not meet that requirement and, therefore, the defendant's Motion to Dismiss [Dkt. #10] is GRANTED and the case is DISMISSED.


         Before the 2012 federal election, plaintiffs[1] filed an administrative complaint with the FEC alleging that Murray Energy coerced its employees into making political donations by several means: by threatening employees with termination for not donating to the company's political action committee or the "candidates of Mr. Murray's choice"; by indicating that donating was a requirement of employment and that it was being tracked; and by making incentive payments to employees, drawn from corporate treasury funds, that functioned as de facto reimbursement for donations. Compl. ¶¶ 2-3, 29-39. Complainants alleged to the FEC that these actions violated three different provisions of the FECA: Count (1) the prohibition on coercing employee contributions to a corporate PAC, Count (2) the prohibition on making and accepting donations in the name of someone different than the true contributor, and Count (3) the prohibition on using corporate treasury funds to make direct contributions in connection with a federal election. Compl. ¶ 40; see also Id. at ¶¶ 4, 19-22; AR0005-0006 [Dkt. #18].

         Despite the evidence that plaintiffs identify at paragraphs 29-39 of their Complaint, and despite the recommendation by the FEC's Office of General counsel that the commissioners vote in favor of investigating, only three of the six commissioners so voted. Compl. ¶¶ 47, 52. Not having the majority vote necessary, the FEC dismissed the administrative complaint and both sides explained on the record the reasons for their vote. Compl. ¶¶ 52-58. Complainants responded by timely filing this suit under the judicial review provision of the FEC A, which states:

(8) (A) Any party aggrieved by an order of the Commission dismissing a complaint filed by such party under paragraph (1), or by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition with the United States District Court for the District of Columbia.
(C) In any proceeding under this paragraph the court may declare that the dismissal of the complaint or the failure to act is contrary to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.

         The case is now before the Court on the FEC's Motion to Dismiss [Dkt. #10], which contends that the case is not properly before the Court because plaintiffs do not have the Article III injury necessary for standing. Plaintiffs, though they are not in any way affiliated with Murray Energy or its political activity, claim that they are harmed by its alleged violations of the FECA. According to the Complaint, CREW "regularly reviews campaign finance reports that groups, candidates, and political parties file with the FEC disclosing their expenditures and, in some cases, their contributors." Compl. ¶ 9. One of CREW's missions is to "publicize[] the role of these individuals and entities in the electoral process and the extent to which they have violated federal campaign finance laws." Id. Hence, CREW alleges, it cannot fulfill its mission when it is deprived of "information about the individuals and entities funding the political activities of organizations and individuals like Murray Energy and Robert Murray." Compl. ¶ 12. The individual plaintiff, Noah Bookbinder, is the executive director of CREW, but he joins the suit in his capacity as a voter. The Complaint alleges "Mr. Bookbinder is harmed in exercising his right to an informed vote when a political committee fails to report the true source of its contributions, as the FECA requires." Compl. ¶ 16.


         In order to demonstrate Article III standing, a plaintiff must establish that: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560-61 (1992)). Here, plaintiffs must establish that the violations they alleged to the FEC caused them concrete, particularized injury and, if the respondents were subjected to an FEC enforcement action for those violations, that the injury would be redressed. Looking at each of the three alleged violations, I conclude that none caused plaintiffs a concrete, particularized injury that could likely be redressed by an FEC enforcement action.

         I. Plaintiffs do not allege any injury from Counts 1 and 3 as such.

         Plaintiffs have alleged no facts that they were harmed by the money spent by Murray Energy PAC or by the direct donations that Murray Energy employees gave. The particularized harm they plead is not about the money in politics but about the lack of information about that money. They have not alleged any injury in fact arising from Murray Energy's alleged corporate spending or from the employee contributions as such. They are not, therefore, aggrieved parties as to Counts 1 and 3 in their administrative complaint. Plaintiffs' only nexus to these acts is that they allege that this misbehavior caused the third violation of which they complain, Count 2, misreporting the true source of donations to Murray Energy PAC in violation of 2 U.S.C. § 44If and 11 C.F.R. § 110.4(b)(1), from which they purport to have suffered an informational injury. Hence, the Court can easily dismiss, for lack of standing, plaintiffs' claims that the FEC must revisit its vote on Counts 1 and 3 and can proceed straight to analyzing the informational injury alleged as to Count 2.

         II. Plaintiffs' informational injury is not redressable by an FEC ...

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