CREW, et al. v. FEC (17-2770)

On December 27, 2018, the United States District Court for the District of Columbia granted the Commission’s motion to dismiss for lack of subject matter jurisdiction.

Background

In 2015, Citizens for Responsibility and Ethics in Washington (CREW), filed an administrative complaint with the Commission alleging that the American Conservative Union (ACU), Now or Never PAC, the PAC’s treasurer and an unknown respondent violated the Federal Election Campaign Act (the Act) by making a $1.71 million contribution from an undisclosed source. The Commission investigated the complaint and found that the contribution had passed through an undisclosed organization, Government Integrity, LLC (“GI LLC”), and that a trust and trustee that had a relationship with GI LLC had transferred $2.5 million to GI LLC. The Commission negotiated a conciliation agreement with the respondents, approved the agreement, and closed the matter (MUR 6920).

On December 22, 2017, CREW and Anne L. Weismann (collectively, plaintiffs), filed suit to challenge the Commission’s handling of the administrative complaint, including the Commission’s alleged failure to determine the “true source” of the contribution and its not finding reason to believe as to the trust and trustee. The plaintiffs alleged that the Commission’s failure to find reason to believe with respect to the trust and trustee was arbitrary, capricious, an abuse of discretion, and contrary to law.

On March 30, 2018, the Commission filed a motion to dismiss for lack of subject matter jurisdiction. Section 30109(a)(8)(A) of the Act 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.” In concluding the challenged action is not reviewable under the Act, the court noted “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.” Since the Commission neither dismissed nor failed to act on the complaint, the court concluded that the agency action is not reviewable and granted the Commission’s motion to dismiss for lack of subject matter jurisdiction.

The court also found that the Commission’s actions in this circumstance are not reviewable under the Administrative Procedure Act.

Source:   FEC Record —February 2019; January 2018

District Court (DC) (17-2770)

Court decisions:

• Order (12/27/2018)
• Memorandum Opinion (12/27/2018)

Related documents:

• FEC's Reply in Support of its Motion for Judgment on the Pleadings (10/26/2018)
• Plaintiffs' Opposition to Defendant FEC's Motion for Judgment on the Pleadings (10/05/2018)
• Defendant FEC's Reply in Support of its Motion to Dismiss (05/25/2018)
• Plaintiff's Opposition to Defendant FEC's Motion to Dismiss (05/04/2018)
• Defendant FEC's Motion to Dismiss (03/30/2018)
• Motion to Intervene by John Doe 1 and John Doe 2 (03/01/2018)
• Complaint (12/22/2017)