United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.
MEMORANDUM OPINION
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiffs
Citizens for Responsibility and Ethics in Washington and Anne
L. Weismann, CREW's former Interim Executive Director and
current Chief FOIA Counsel (collectively “CREW”),
have sued the Federal Election Commission (“FEC”)
in connection with the Commission's resolution of an
administrative complaint that CREW filed with the agency in
2015. In the administrative complaint it filed with the FEC,
CREW alleged that a non-profit organization, American
Conservative Union (“ACU”); a political action
committee, Now or Never PAC; the PAC's treasurer, James
C. Thomas III; and an “Unknown Respondent”
violated the Federal Election Campaign Act
(“FECA” or “the Act”), 52 U.S.C.
§ 30101 et seq., by making a $1.71 million
campaign contribution from an undisclosed source. The
Commission investigated the matter and found that the
contribution passed through a previously undisclosed
organization, Government Integrity, LLC. It ultimately
negotiated a conciliation agreement with ACU, the PAC,
Thomas, and Government Integrity. The Commissioners
unanimously approved the conciliation agreement and closed
the administrative matter.
CREW
filed suit against the Commission, asserting that its
handling of the matter violated FECA and the Administrative
Procedure Act (“APA”). Specifically, CREW
contends that the agency improperly disposed of the
administrative complaint without proceeding further to ensure
that its investigation encompassed the true sources of the
contribution, the individuals or entities that provided the
money to Government Integrity that was passed to ACU. CREW
contends that the agency should have pursued leads developed
during its investigation in accordance with the
recommendations of the Office of General Counsel, and it
questions the Commission's decision to curtail the
investigation in the wake of the conciliation agreement.
The
Commission has moved to dismiss the complaint arguing that
the Court has no jurisdiction to hear it, and the Court
agrees.
Section
30109(a)(1) of FECA authorizes any person who believes a
violation of the statute has occurred to file a complaint
with the agency. Significantly, under the statute, if the
Commission determines that there is probable cause to believe
that any person has committed a violation of the Act, it is
required to attempt to correct or prevent the
violation through a process of conciliation.
The
judicial review provision in the statute, subsection
(a)(8)(A), states that “[a]ny party aggrieved by an
order of the Commission dismissing a complaint filed by such
party . . . or by a failure of the Commission to act on such
. . . may file a petition with the United States District
Court for the District of Columbia.” The FEC is correct
that neither of these events took place here. CREW's
administrative complaint was brought against three named
respondents and one unknown respondent. There was no failure
to act on plaintiff's complaint, and the complaint
against the four respondents - three named and one unknown -
was not dismissed; it was resolved by the conciliation
process called for by the statute. Since nothing in the
statute gives the Court the power to review investigative
decisions made along the way if an administrative complaint
was neither dismissed nor ignored, the Court concludes that
the challenged agency action is not reviewable under FECA. It
further finds that the agency's actions in this
circumstance are not reviewable under the APA, and therefore,
the Court will grant defendant's motion to dismiss for
lack of subject matter jurisdiction. Thus, this opinion will
not address, and it should not be interpreted as expressing
agreement with, or any view about, the propriety of the
agency's actions.
BACKGROUND
I.
Statutory Framework
The
Federal Election Campaign Act is a statute that requires
extensive recordkeeping and disclosure of campaign
contributions in an effort “to remedy any actual or
perceived corruption of the political process.”
Fed. Election Comm'n v. Akins, 524 U.S. 11, 14
(1998). To this end, it prohibits “mak[ing] a
contribution in the name of another person or knowingly
permit[ting] his name to be used to effect such a
contribution” or “knowingly accept[ing] a
contribution made by one person in the name of another
person.” 52 U.S.C. § 30122.
The
Federal Election Commission is an independent federal agency
with exclusive jurisdiction over civil enforcement of FECA.
52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. FECA
authorizes the Commission to investigate violations of the
Act. Id. § 30107(a). It also provides that
“[a]ny person who believes a violation of th[e] Act . .
. has occurred, may file a complaint with the
Commission.” 52 U.S.C. § 30109(a)(1). If, upon
receiving an administrative complaint, the Commission
determines “by an affirmative vote of 4 of its members,
that it has reason to believe” the Act has been
violated, the Commission must investigate the allegation.
Id. § 30109(a)(2). The general counsel of the
agency recommends whether the Commission should proceed to a
vote “on probable cause, ” and the respondent may
submit information and briefs to the Commission as part of
the investigation. Id. § 30109(a)(3).
If the
Commission finds “by an affirmative vote of 4 of its
members, that there is probable cause to believe that any
person” has violated FECA, the statute requires the
Commission to
attempt, for a period of at least 30 days, to correct or
prevent such violation by informal methods of conference,
conciliation, and persuasion, and to enter into a
conciliation agreement with any person involved. Such attempt
by the Commission to correct or prevent such violation may
continue for a period of not more than 90 days. The
Commission may not enter into a conciliation agreement under
this clause except pursuant to an affirmative vote of 4 of
its members. A conciliation agreement, unless violated, is a
complete bar to any further action by the Commission,
including the bringing of a civil proceeding under paragraph
(6)(A).
Id. § 30109(a)(4)(A)(i).
FECA
authorizes an administrative complainant, such as CREW, to
seek judicial review of the Commission's handling of its
complaint in only two circumstances:
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.
Id. § 30109(a)(8)(A). CREW does not allege here
that the Commission failed to act on its complaint; it
complains that it was aggrieved by “the
dismissal” of its administrative complaint. Compl.
[Dkt. # 1] ¶ 1.
II.
Factual Background
On
February 27, 2015, the FEC received an administrative
complaint from plaintiffs alleging that ACU, Now or Never
PAC, its treasurer Thomas, and an unknown respondent violated
the Federal Election Campaign Act when ACU contributed $1.71
million it had received from the unknown respondent to Now or
Never PAC. Compl. ¶¶ 24-25; Administrative Compl.,
Ex. A to Pls.' Opp. to Def.'s Mot. to Dismiss [Dkt. #
29-3] (“Admin. Compl.”) ¶ 27 (asserting that
“[t]he Unknown Respondent provided to ACU the $1.71
million it in turn transferred to Now or Never PAC”);
see also First General Counsel's Report, Ex. B.
to Pls.' Opp. to Def.'s Mot. to Dismiss [Dkt. # 29-4]
at 1-2.
The
agency initiated an investigation based on the complaint,
Matter Under Review (“MUR”) 6920, and in the
course of the investigation, it identified Government
Integrity as the unknown respondent that had contributed to
ACU. Compl. ¶¶ 2, 26; see also Second
General Counsel's Report, Ex. C. to Pls.' Opp. to
Mot. Dismiss. [Dkt. # 29-5] at 1-2; Third General
Counsel's Report, Ex. 2 to Compl. [Dkt. # 1-2] at 1-2.
The
FEC's Office of General Counsel (“OGC”)
learned through discovery that a trust that had a
relationship with Government Integrity transmitted funds to
Government Integrity; that Government Integrity wired $1.8
million to ACU; and that on the day it received the wire, ACU
sent the $1.7 million contribution at issue in the
investigation to the Now or Never PAC. Compl. ¶¶ 2,
26-27; Third General Counsel's Report at 2-5; Circulation
of Discovery Documents, Ex. E. to Pls.' Opp. to
Def.'s Mot. to Dismiss [Dkt. # 29-7] at 2.
On July
11, 2017, the Commission voted 5 to 0 to “[s]ubstitute
the name Government Integrity LLC in the place of
‘Unknown Respondent' in the Commission's
previous findings that Unknown Respondent violated 52 U.S.C.
§ 30122 by making a contribution in the name of
another.” Certification (July 12, 2017), Ex. 6 to
Compl. [Dkt. # 1-6] (“July 12 Certif.”)
(declining by a vote of 2 to 2 to make a finding that it did
so “knowingly and willfully”). The ...