United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE
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”).
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.”)
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.
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.
The Court's February 1, 2017 Memorandum and
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.)
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).
Plaintiffs' August 11, 2017 Amended Complaint
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
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.)
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.
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).
Defendant's Motion to Strike and Plaintiffs' Motion
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.
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).
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).
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.)
News Articles Regarding CPD Directors' Participation and
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
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.
News Articles Regarding Media Sources Consulted by
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.)
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.
Articles, Books, Videos, and Websites regarding the 2016
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
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
Name Recognition Polls Not Mentioned in FEC's
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.
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.”).
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
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.
2008 Polling Data for President Barack Obama
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.)
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.)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