Level Playing Field v. Federal Election Commission

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         This case concerns a highly visible element of our democratic electoral process: the presidential and vice-presidential debates held every four years by the Commission on Presidential Debates (“CPD”).

         Plaintiffs Level the Playing Field, Peter Ackerman, Green Party of the United States, and Libertarian National Committee, Inc. allege that, following this court's remand, Defendant Federal Election Commission (“FEC”) again violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, in dismissing two administrative complaints regarding the CPD, and denying a petition to engage in rulemaking to change the FEC's regulations regarding debate staging organizations. (See ECF No. 76 (“Am. Compl.”) ¶¶ 76-82.)

         Before the court are Plaintiffs' motion for summary judgment (ECF No. 83), Defendant's cross-motion for summary judgment (ECF No. 90), Defendant's motion to strike (ECF No. 92), and Plaintiffs' motion to supplement the record (ECF No. 99). Upon consideration of the pleadings and the Administrative Record (ECF No. 105), Defendant's motion to strike is GRANTED in part and DENIED in part, Plaintiffs' motion to supplement the record is DENIED, Plaintiffs' motion for summary judgment is DENIED, and Defendant's cross-motion for summary judgment is GRANTED.

         I. BACKGROUND

         This is the second round of summary judgment briefing in this case. Because this court has already issued a detailed memorandum and opinion (ECF No. 60), for purposes of this ruling, the court will assume the parties' familiarity with the underlying record and recite only what is necessary to resolve the pending motions.

         A. The Court's February 1, 2017 Memorandum and Opinion

         On February 1, 2017, this court issued a memorandum and opinion finding that the FEC “acted arbitrarily and capriciously and contrary to law when it dismissed [Plaintiffs'] two administrative complaints” and “fail[ed] to provide a reasoned and coherent explanation” for its denial of Plaintiffs' rulemaking petition. (Id. at 28.)

         In granting Plaintiffs' motion for summary judgment and denying the FEC's cross-motion for summary judgment, the court issued five main directives to the FEC in reconsidering Plaintiffs' submissions. The court ordered the FEC to: (1) “articulate its analysis in determining whether the CPD endorsed, supported, or opposed political parties or candidates” (id. at 14); (2) “demonstrate how it considered the evidence, particularly, but not necessarily limited to, the newly-submitted evidence of partisanship and political donations and the expert analyses regarding fundraising and polling” (id. at 18); (3) notify the ten remaining directors, address the allegations made against them, and consider the evidence presented against them (id. at 19); (4) demonstrate that it had considered the full scope of Plaintiffs' evidence as well as to explain how and why it rejected the evidence in deciding that CPD's polling requirement is an objective criterion (id. at 23); and (5) engage in thorough consideration of the presented evidence and explain its decision regarding Plaintiffs' rulemaking petition (id. at 27-28).

         B. Plaintiffs' August 11, 2017 Amended Complaint

         On August 11, 2017, Plaintiffs filed an amended complaint alleging that the FEC's post-remand decisions indicate that it failed to comply with any of the court's directives, and asking the court to take the following actions:

Declare that the FEC's dismissals of Plaintiffs' administrative complaints were arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, and direct the FEC, within 30 days, to find that the CPD has violated 11 C.F.R. § 110.13 by staging candidate debates in a partisan manner and without pre-established, objective criteria; violated 52 U.S.C. § 30118(a) by making prohibited contributions and expenditures; and violated 52 U.S.C. §§ 30103 and 30104 by failing to register as a political committee and by failing to make required reports and disclosures; and

If the FEC fails to so act, authorize Plaintiffs to bring a civil action against the CPD, its executive director, and the directors who have participated in these violations of federal election law to remedy those violations; and

Declare the FEC's denial of the petition for rulemaking was arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, and order the FEC to open rulemaking to revise its rules governing presidential debates to ensure that debate sponsors do not unfairly exclude independent and third-party candidates from participating.

(See Am. Compl. ¶¶ 3, 9, 21.)

         II. STANDARD

         On a motion for summary judgment in a suit seeking APA review, the court must set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The court's review is “highly deferential” and begins with a presumption that the agency's actions are valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). The plaintiff bears the burden of establishing the invalidity of the agency's action. Id.

         The court is “not empowered to substitute its judgment for that of the agency, ” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (abrogated on other grounds), but instead must consider only “whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors, ” Fulbright v. McHugh, 67 F.Supp.3d 81, 89 (D.D.C. 2014) (quoting Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995)). “A reviewing court, however, will accord a somewhat greater degree of scrutiny to an order that arrives at substantially the same conclusion as an order previously remanded by the same court.” Greyhound Corp. v. I.C.C., 668 F.2d 1354, 1358 (D.C. Cir. 1981). “The agency's action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result.” Food Mktg. Inst. v. I.C.C., 587 F.2d 1285, 1290 (D.C. Cir. 1978).

         III. ANALYSIS

         A. Defendant's Motion to Strike and Plaintiffs' Motion to Supplement

         The FEC moves to strike portions of Plaintiffs' memorandum of law, portions of Plaintiffs' counsel's declaration, and one of Plaintiffs' expert affidavits because the materials were not before the agency when it made its determinations and are not part of the administrative record. (See ECF 92 (“Def.'s Mot. to Strike”) at 1.) The FEC also argues that Plaintiffs' use of a FEC Commissioner's pre-decisional statement is improper. (See id.) Plaintiffs oppose the motion to strike and move to supplement the administrative record with the objected to material. (See ECF No. 99 (“Pls.' Mot to Supplement”) at 1-2.) Because the arguments in the motion to strike and the motion to supplement overlap, the court will assess them simultaneously with respect to each category of objected to material.

         1. Extra-record Evidence

         When reviewing agency actions such as FEC's decision here, courts review “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706; Volpe, 401 U.S. at 420 (“[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision.”). This includes “all documents and materials that the agency directly or indirectly considered” before deciding what action to take. Pac. Shores Subdi v. Cal. Water Dist. v. U.S. Army Corps of Engr's, 448 F.Supp.2d 1, 4 (D.D.C. 2006) (internal quotation omitted). Judicial review is limited to the record because a court “should have before it neither more nor less information than did the agency when it made its decision.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (quoting Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). Agencies bear the burden of compiling the materials and documents they considered, either directly or indirectly, and the compiled record “is entitled to a strong presumption of regularity.” Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010).

         When, as here, a party seeks to add materials to the record that it does not contend the agency actually reviewed, courts have permitted such extra-record evidence in at least three “unusual circumstances.” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008). These are: (1) when “the agency ‘deliberately or negligently excluded documents that may have been adverse to its decision, '” (2) when “background information [is] needed ‘to determine whether the agency considered all the relevant factors, '” and (3) when “the ‘agency failed to explain administrative action so as to frustrate judicial review.'” City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Am. Wildlands, 530 F.3d at 1002).

         Plaintiffs contend that the extra-record materials identified in their motion for summary judgment can be divided into six categories that are permissible under one of the first two exceptions or for a separate reason. (See Pls.' Mot. to Supplement at 2-6.) However, three of the extra-record materials identified in the FEC's appendix-an article regarding a 2018 Senate bid, a comment made after the 2016 election about the difficulty of selecting moderators, and an article concerning Ross Perot's independent candidacy in 1992-are not encompassed by any of the six categories delineated by Plaintiffs. For those materials, because Plaintiffs failed to address them, in accord with Local Rule 7(b), the court deems the FEC's motion as conceded, see Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”), and strikes those portions from the record. (See ECF No. 83 (“Pls.' Mot. Summ. J.”) at 14, n.22; 16, n.30; 44, n.58.)

         i. News Articles Regarding CPD Directors' Participation and Statements

         Plaintiffs seek to supplement the record with two news articles that they allege demonstrate noncompliance with CPD's internal policies. The first article relays CPD Director Olympia Stowe's opinion that President Donald Trump was hurting the Republican brand. (See Pls.' Mot. Summ. J. at 14, n.18.) The second article states that CPD Director Frank Fahrenkopf co-chaired a fundraiser for Adam Laxalt, who was reportedly considering entering Nevada's gubernatorial race at the time. (See Id. at 25, n.35.) Plaintiffs argue that the articles fall under the first and second Dania Beach exceptions, under which extra-record evidence may be considered because an agency has deliberately or negligently excluded adverse documents, and extra-record evidence may be considered as needed background information. (See Pls.' Mot. to Supplement at 2-3.)

         Having considered all arguments, the court finds that neither of the first and second Dania Beach exceptions apply to these articles. To prove that the articles fall within the first Dania Beach exception, Plaintiffs needed to make a “strong showing of [agency] bad faith.” Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015) (quoting James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996) (alteration in original). Here, Plaintiffs proffered only “conclusory statements, ” which “‘fall short' of that high threshold.” Id. With respect to the second Dania Beach exception, Plaintiffs argue that the news articles should be made part of the record because they show “that the FEC failed to consider all relevant factors when relying upon the alleged [internal] policies.” (See Pls.' Mot. to Supplement at 3.) But under Dania Beach, it is not enough that Plaintiffs cursorily allege the evidence shows a failure to consider all relevant factors; Plaintiffs must demonstrate that the evidence is “needed” by the court to make that determination. Dania Beach, 628 F.3d at 590. And in light of the FEC's explanation of the manner in which it relied on CPD's representation that it had two internal polices, as well as the voluminous record, the court is confident that the two news articles are not needed. See e.g., Lee Mem'l Hosp. v. Burwell, 109 F.Supp.3d 40, 54 (D.D.C. 2015) (finding supplementation not needed where agency provided cogent explanation). Therefore, Defendant's motion to strike the two news articles is GRANTED, and Plaintiffs' motion to supplement the record with them is DENIED.

         ii. News Articles Regarding Media Sources Consulted by Voters

         Plaintiffs next seek to admit four news articles under the first and second Dania Beach exceptions, arguing that the articles rebut the FEC's assertion that an independent candidate can significantly defray the cost of her campaign by reaching voters through social media. (See Pls.' Mot. Summ. J. at 30, nn.38-40; 31, n.46; Pls.' Mot to Supplement at 4.)

         Here again, the court finds that neither the first nor second Dania Beach exceptions apply. Plaintiffs proffer no evidence of bad faith, and therefore cannot meet the first exception. See Dist. Hosp. Partners, L.P., 786 F.3d at 55 (noting that to meet the first exception, plaintiffs must make a strong showing of bad faith on the part of the agency). And the second exception has not been met because the FEC's decision explains how it arrived at its finding that the Douglas Schoen expert report is undermined, in part, because the report did not consider the effect of digital and social media on media exposure avenues available to independent candidates. The proffered news articles are not needed to determine whether the FEC adequately considered all the relevant factors, including the extent to which voters rely on social media to learn about presidential candidates. See e.g., Lee Mem'l Hosp., 109 F.Supp.3d at 54 (finding supplementation not needed where agency provided cogent explanation). Accordingly, Defendant's motion to strike the four news articles is GRANTED, and Plaintiffs' motion to supplement the record with them is DENIED.

         iii. Articles, Books, Videos, and Websites regarding the 2016 Election

         Of the FEC's two decisions-the initial decision was issued in 2015 and the second decision was issued in 2017-only the 2017 decision references the 2016 election in its analysis. In response to this reference in the 2017 decision, Plaintiffs seek to supplement the administrative record with extra-record evidence concerning the 2016 election. (See Pls.' Mot. Summ. J. at 1, n.2; 4, n.6; 13, nn.12-13 & 15-16; 14, nn.17, 19-21, & 23; 15, nn.24-26; 16, n.29; 33, n.49.) Plaintiffs argue that the court should either find that the evidence falls under the second Dania Beach exception or, at a minimum, take judicial notice of the evidence for purposes of background. (See Pls.' Mot. to Supplement at 5-6.) The court disagrees.

         Plaintiffs' characterization of FEC as “conducting [its] own sua sponte analysis of the 2016 race, ” (see Id. at 6), is a bit of an overstatement. The FEC's references to the 2016 election are cabined largely to three categories: (1) third party candidates' name recognition, media attention, and financial support; (2) the Democratic and Republican nominees' spending on digital marketing; and (3) a potential candidate's reported interest in running because of his personal wealth and name recognition. For each category, the FEC provides a cogent explanation of its reliance on the cited materials; thus, supplementation is not needed. See e.g., Lee Mem'l Hosp., 109 F.Supp.3d at 54 (finding supplementation not needed where agency provided cogent explanation). With respect to Plaintiffs' alternative argument, because the content of some of the documents are subject to reasonable dispute and the court's focus at this stage is on the documents that can serve as the foundation for Plaintiffs' claims, the court declines to take judicial notice of the documents for background purposes. Defendant's motion to strike the articles, books, videos, and websites is GRANTED, and Plaintiffs' motion to supplement the record with them is DENIED.

         iv. Name Recognition Polls Not Mentioned in FEC's Decisions

         Plaintiffs also seek to supplement the record with a Gallup and a YouGov poll showing that Libertarian Party candidate Gary Johnson's name recognition was 36 percent and 37 percent respectively. (See Pls.' Mot. Summ. J. at 27, n.37.) According to Plaintiffs, the polls show that the FEC erred in relying solely on a subsequent YouGov poll, which indicated that Gary Johnson achieved 63 percent name recognition. (Id.) Plaintiffs argue that the court may take judicial notice of the polls or, in the alternative, find that the two polls fall under the first and second Dania Beach exceptions. (See Pls.' Mot. to Supplement at 3-4.) However, none of these three proposed avenues are appropriate here.

         “[J]udicial notice is typically an inadequate mechanism for a court to consider extra-record evidence when reviewing an agency action.” Dist. Hosp. Partners, L.P. v. Sebelius, 971 F.Supp.2d 15, 32, n.14 (D.D.C. 2013), aff'd sub nom. Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46 (D.C. Cir. 2015). This general rule rests on the premise that plaintiffs should not be permitted to exploit the standard for judicial notice to circumvent the strict standard for supplementing the administrative record. See Banner Health v. Burwell, 126 F.Supp.3d 28, 62 (D.D.C. 2015), aff'd in part, rev'd in part sub nom. Banner Health v. Price, 867 F.3d 1323 (D.C. Cir. 2017) (“Plaintiffs cannot evade that strict standard by appealing to the standard for judicial notice.”). And none of the cases relied upon by Plaintiffs involved an APA case. See e.g., Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (reviewing public opinion polling data in death penalty appeal); Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015) (using website to determine when sunset and nautical twilight occurred on certain day in a habeas case). Therefore, in accord with other courts in this district, the court declines to take judicial notice of the two polls because, as discussed below, Plaintiffs have failed to prove that any of the Dania Beach exceptions apply. See Riffin v. Surface Transp. Bd., No. 16-1147, 2016 WL 6915552, at *1 (D.C. Cir. Oct. 6, 2016) (unpublished) (rejecting plaintiff's effort to supplement the administrative record through judicial notice and explaining that none of the three exceptions to the rule against supplementation were met); Silver State Land, LLC v. Beaudreau, 59 F.Supp.3d 158, 172 (D.D.C. 2014) (declining to take judicial notice in APA case where proposed document did not “qualify for supplementation of the administrative record or extra-record review”); see also Dist. Hosp. Partners, 971 F.Supp.2d at 32 n.14 (“[J]udicial notice of an adjudicative fact not part of the administrative record generally is irrelevant to the court's analysis of the merits. Instead, a court may only consider an adjudicative fact subject to judicial notice that is not part of the administrative record if it qualifies for supplementation as extra-record evidence.”).

         With respect to the first Dania Beach exception, in addition to their conclusory statement that the two polls undermine the FEC's argument and were deliberately or negligently excluded by the FEC, Plaintiffs cite to a D.C. Circuit decision permitting supplementation of the administrative record where the agency relied on a single memorandum from another program. See Kent Cty., Delaware Levy Court v. U.S. E.P.A., 963 F.2d 391, 396 (D.C. Cir. 1992). However, in that case, the agency looked outside of its own files to support its decision, but neglected to examine its own files, which contained several documents “relat[ing] to the position of the agency's own experts on the question central to th[e] case.” Id. Thus, the Court found the agency negligent for failing to review any of its internal documents and permitted plaintiff to supplement the administrative record. Id. Here, however, the poll relied upon by the FEC and the two polls proffered by Plaintiffs are all external documents. Thus, there is insufficient evidence to find that the FEC was either deliberate or negligent in not including them. Moreover, Plaintiffs seek to introduce a poll that was taken June 2-5, 2016 and another poll taken July 13-17, 2016. And because the YouGov poll in the record was taken over a month later, on August 25-26, 2016, it is not directly contradicted by the polls proffered by Plaintiffs, and it is not clear that the polls are adverse to the FEC's decision.

         Lastly, the second Dania Beach exception does not apply to the name recognition polls, neither of which provide insight into the FEC's findings nor assist the court in determining whether the FEC adequately considered the relevant factors. C.f. Rhea Lana, Inc. v. U.S. Dep't of Labor, No. 14-CV-00017 (CRC), 2016 WL 10932817, at *1 (D.D.C. Dec. 6, 2016) (finding proposed supplement provided needed background information where it included letters “shed[ding] light on the basis for [the agency's] decision”). The two proffered polls do not provide insight into the FEC's decision making because they do not reflect the thoughts or efforts of anyone who participated in the FEC's decision. And the court can consider any arguments about to what extent, if any, the FEC erred in relying only on the August YouGov poll without considering the two earlier polls that were not before the FEC. Thus, Defendant's motion to strike the name recognition polls is GRANTED, and Plaintiffs' motion to supplement the record with them is DENIED.

         v. 2008 Polling Data for President Barack Obama

         Plaintiffs also seek to supplement the record with a Real Clear Politics poll, which they allege plainly shows that President Barack Obama's polling received a boost after the 2008 Iowa caucuses. (See Pls.' Mot. Summ. J. at 42, n.55.) Plaintiffs assert that the court should take judicial notice of the poll, or consider it under the first Dania Beach exception, which permits consideration of extra-record adverse evidence when an agency has deliberately or negligently excluded it. (See Pls.' Mot. to Supplement at 5.)

         Plaintiffs have again failed to establish that supplementation is warranted. They submitted this poll because “[f]or the first time in its decisions, the FEC disputed whether President Obama's polling received a boost from the 2008 Iowa caucuses.” (Id.) But the FEC's decision contains no such dispute; it simply notes that a polling expert found that President Obama did not “suddenly burst onto the political scene, polling shows that he was already reasonably well-known to voters in advance of the 2008 primaries.” (A.R. 1934.)^[1]Nevertheless, even if the decision did contain the dispute, Plaintiffs have not shown that the FEC deliberately or negligently excluded the poll, and judicial notice is inappropriate where none of the Dania Beach exceptions have been met. Accordingly, the court will not take judicial notice of the Real Clear Politics poll and will not consider it as part of the record in evaluating the cross-motions for summary judgment. Defendant's motion to strike the Real Clear Politics poll is GRANTED, and Plaintiffs' motion to supplement the record with it is DENIED.

         vi. Douglas ...