District Court allows challenge to administrative complaint outcome in CREW v. FEC and Crossroads GPS (16-259)

On March 22, 2017, the U.S. District Court for the District of Columbia denied the FEC’s Partial Motion to Dismiss and granted in part Crossroads GPS’s Supplemental Motion to Dismiss.

Background

Citizens for Responsibility and Ethics in Washington (CREW), its former executive director Melanie Sloan, and Ohio resident and registered voter Jessica Markley filed an administrative complaint with the FEC on November 15, 2012. The administrative complaint alleged that Crossroads GPS and individuals connected to the organization (collectively, “Crossroads GPS”) violated the Federal Election Campaign Act (“the Act”) by failing to disclose the identity of contributors that funded the group's independent expenditures. See 52 U.S.C. § 30104(c) and 11 CFR 109.10(e)(1)(vi). On November 17, 2015, the Commission did not find reason to believe that Crossroads GPS violated the Act and subsequently voted to close the file.

On February 16, 2016, CREW and Nicholas Mezlak, an Ohio voter who had been substituted for Markley in the administrative action (collectively “the plaintiffs”), filed suit in the U.S. District Court for the District of Columbia challenging the Commission's dismissal of the administrative complaint. The plaintiffs sought both a declaratory order stating that the FEC’s dismissal of the complaint was arbitrary, capricious, an abuse of discretion and contrary to law; and a declaration that the Commission regulation that was relied upon is unlawful and invalid. On April 19, 2016, the FEC moved to dismiss Count II of the plaintiffs’ complaint, the count which directly challenged the Commission’s regulation. The Commission argued that this regulatory challenge was time barred by a six-year statute of limitations to bring a civil action. Crossroads GPS, which had intervened in the lawsuit as a defendant, joined the FEC’s motion and also moved to dismiss the portions of Counts I-III that sought relief under the Administrative Procedure Act (“the APA”). Crossroads GPS argued that the Act provides the exclusive avenue for review of an administrative complaint dismissal and bars APA-based judicial review.

Court decision on motions to dismiss

In denying the FEC’s motion, the court stated that CREW’s regulatory challenge fell within the D.C. Circuit’s exception to the statute of limitations allowing a regulatory challenge by a party that has been adversely affected by the regulation’s application, if the regulation arguably conflicts with the statute from which it derives.

In regard to Crossroads GPS’s motion, the court looked at whether the Act provides an “adequate remedy” for the plaintiffs’ claims. Counts I and III of the claim sought orders reversing the dismissal of the administrative complaint, however the court determined that the Act already provides such a remedy and an additional claim under the APA is not warranted. However, the court stated that Count II, which challenges the dismissal of the administrative complaint based on the alleged invalidity and unlawfulness of the FEC regulation, is properly brought under the Act and the APA.

Resources:

• CREW v. FEC and Crossroads GPS (16-259) litigation page