CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. FEDERAL ELECTION COMMISSION

Filing 4

MOTION to Dismiss or, in the Alternative, for Summary Judgment by FEDERAL ELECTION COMMISSION (Attachments: # 1 Declaration, # 2 Declaration)(Hajjar, Steve). Added MOTION for Summary Judgment on 6/24/2011 (znmw, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 11-951 (CKK)
)
FEDERAL ELECTION COMMISSION, )
MOTION
)
Defendant.
)
____________________________________)
DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Federal Election
Commission (“Commission”) respectfully moves this Court for an order dismissing the
Complaint for failure to state a claim upon which relief can be granted. In the alternative, the
Commission moves for summary judgment against Plaintiff under Rule 56. A Memorandum in
Support of the Commission’s Motion is submitted as required by LCvR 7. A Statement of
Material Facts as to Which There is No Genuine Dispute is also submitted in support of the
Commission’s alternative motion for summary judgment, as required by LCvR 7.
Respectfully submitted,
Phillip Christopher Hughey
Acting General Counsel
[e-mail]
David Kolker (D.C. Bar No. 394558)
Associate General Counsel
[e-mail]
Kevin Deeley
Assistant General Counsel
[e-mail]

/s/ Steve N. Hajjar
Steve N. Hajjar
Attorney
[e-mail]

June 23, 2011

FEDERAL ELECTION COMMISSION
999 E Street NW
Washington, DC 20463
[phone]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON,
)
)
Plaintiff,
)
)
v.
)
)
FEDERAL ELECTION COMMISSION, )
)
Defendant.
)
____________________________________)

Civil Action No. 11-951 (CKK)

MEMORANDUM

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Phillip Christopher Hughey
Acting General Counsel
[e-mail]
David Kolker (D.C. Bar No. 394558)
Associate General Counsel
[e-mail]
Kevin Deeley
Assistant General Counsel
[e-mail]
/s/ Steve N. Hajjar
Steve N. Hajjar
Attorney
[e-mail]

June 23, 2011

FEDERAL ELECTION COMMISSION
999 E Street, N.W.
Washington, DC 20463
[phone]

TABLE OF CONTENTS
Page

I.

BACKGROUND .....................................................................................................2
A.
B.

CREW’s Request .........................................................................................2

C.
II.

The Federal Election Commission ...............................................................2

The Commission’s Response .......................................................................3

CREW’S COMPLAINT SHOULD BE DISMISSED .............................................4
A.
B.

CREW’s Claim is Moot ...............................................................................6

C.
III.

Standard of Review ......................................................................................4

CREW Failed to Exhaust Administrative Remedies ...................................6

CONCLUSION ......................................................................................................11

‐i‐ 

TABLE OF AUTHORITIES
Page
Cases
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....................................................................5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..............................................................5
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. 4-5
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..........................................................................5
Crooker v. U.S. State Dep’t, 628 F.2d 9 (D.C. Cir. 1980) .........................................................6
Defenders of Wildlife v. Dep’t of Agric., 311 F. Supp. 2d 44 (D.D.C. 2004) ............................5
Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472 (D.C. Cir. 1986) ...................................7, 11
Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995) .................................................................5
Drake v. FAA, 291 F.3d 59 (D.C. Cir. 2002) .............................................................................6
Erickson v. Pardus, 551 U.S. 89 (2007) ....................................................................................5
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002) ................................................5
Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) .......................................................................6
Kassem v. Wash. Hosp. Ctr., 513 F.3d 251 (D.C. Cir. 2008) ....................................................5
Los Angeles Cnty. v. Davis, 440 U.S. 625 (1979) ......................................................................6
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) ....................6, 7, 8, 9, 10, 11
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ..........................................................................6
Petit-Frere v. U. S. Attorney’s Office for S.D. of Fla.,
664 F. Supp. 2d 69 (D.D.C. 2009) .............................................................................8, 9, 10
United States v. Tucker Truck Lines, 344 U.S. 33 (1952) .........................................................7
Weinberger v. Salfi, 422 U.S. 749 (1975) ............................................................................7, 10

‐ii‐ 

Statutes and Regulations
Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-457................................................2
2 U.S.C. § 437c(a)......................................................................................................................2
2 U.S.C. § 437c(b)(1) .................................................................................................................2
2 U.S.C. § 437d(a)(7) .................................................................................................................2
2 U.S.C. § 437d(a)(8) .................................................................................................................2
2 U.S.C. § 437f ..........................................................................................................................2
2 U.S.C. § 437g ..........................................................................................................................2
2 U.S.C. § 438(a)(8) ...................................................................................................................2
Freedom of Information Act, 5 U.S.C. § 552 ....................................................................1, 2, 7
5 U.S.C. § 552(a)(4)(B) ......................................................................................................... 7-8
5 U.S.C. § 552(a)(6)(A) .........................................................................................................7, 8
5 U.S.C. § 552(a)(6)(A)(i) .........................................................................................................7
5 U.S.C. § 552(a)(6)(A)(ii) ........................................................................................................7
5 U.S.C. § 552(a)(6)(C) .............................................................................................................8
11 C.F.R. § 4.8 ...........................................................................................................................8
11 C.F.R. § 7.15(c).....................................................................................................................3
11 C.F.R. § 7.15(d) ....................................................................................................................3
11 C.F.R. § 201.3(c)...................................................................................................................3
11 C.F.R. § 201.4(a)...................................................................................................................3
Fed. R. Civ. P. 12(b)(6)..............................................................................................................4
Fed. R. Civ. P. 56(c) ..................................................................................................................5

‐iii‐ 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON,
)
)
Plaintiff,
)
)
v.
)
)
FEDERAL ELECTION COMMISSION, )
)
Defendant.
)
____________________________________)

Civil Action No. 11-951 (CKK)

MEMORANDUM

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) has received all
the materials to which it is entitled under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. Its pending claim is thus moot and the Court should grant summary judgment for the
Commission. Even if CREW’s claim were not moot, its complaint should be dismissed because
CREW has failed to exhaust its administrative remedies. Once a government agency replies to a
FOIA request and indicates that it is in the process of responding, the requester must actually
exhaust available administrative remedies, allowing the agency to exercise its discretion and
preventing premature interference with agency processes. CREW submitted its FOIA request to
the Commission on March 7, 2011. Over the next three weeks, the Commission and CREW
communicated extensively, beginning two days after CREW submitted its request. The
Commission acknowledged receipt of the request, negotiated an agreement to narrow the search
for responsive documents, and assured CREW that it would provide documents on a rolling
1

basis. Because the Commission indicated it was responding to CREW’s request and CREW
failed to exhaust its administrative remedies before bringing suit, CREW’s complaint should be
dismissed for failing to state a claim.
I.

BACKGROUND
A.

The Federal Election Commission

The FEC is the agency of the United States government vested with statutory authority
over the administration, interpretation, and civil enforcement of the Federal Election Campaign
Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457, and other federal campaign finance statutes. The
Commission is empowered to “formulate policy” with respect to FECA, 2 U.S.C. § 437c(b)(1);
“to make, amend, and repeal such rules . . . as are necessary to carry out the provisions of
[FECA],” 2 U.S.C. §§ 437d(a)(8), 438(a)(8); to issue advisory opinions concerning the
application of FECA or the Commission’s regulations to proposed transactions or activities,
2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. § 437g. The Commission is
composed of six commissioners appointed by the President with the advice and consent of the
Senate. 2 U.S.C. § 437c(a). No more than three members of the Commission may be affiliated
with the same political party. Id.
B.

CREW’s Request

On March 7, 2011, CREW submitted a request to the Commission under the Freedom of
Information Act, 5 U.S.C. § 552, seeking various categories of records related to
communications between three Commission members and individuals and entities outside the
Commission. Compl. ¶ 1. CREW describes itself as a nonprofit corporation “committed to
protecting the right of citizens to be informed about the activities of government officials and to
ensuring the integrity of government officials.” Id. ¶ 4. In its request, CREW sought:

2

•

Correspondence related to any business between Commissioners Matthew S. Petersen,
Caroline C. Hunter, and Donald F. McGahn and any individual or entity outside the
Commission from the date each Commissioner took office;

•

All calendars, agendas, or other records of the schedules of these three Commissioners;

•

All written ex parte communications delivered to any agency ethics official by any of
these Commissioners, or by anyone acting on their behalf pursuant to Commission
regulations 11 C.F.R. §§ 7.15(c), 201.3(c), and 201.4(a); and

•

All statements setting forth the substance and circumstances of any oral ex parte
communication prepared by any of these Commissioners or someone acting on their
behalf and delivered to an agency ethics official pursuant to Commission regulations, 11
C.F.R. §§ 7.15(d), 201.3(c), and 201.4(a).
C.

The Commission’s Response

The day after receiving CREW’s request, the Commission emailed CREW to
acknowledge receipt of the request and to inform CREW that its application for a fee waiver had
been granted. Compl. ¶ 17. As CREW notes in its complaint, in “subsequent conversations and
communications” with FEC Assistant General Counsel Nicole St. Louis Matthis, CREW agreed
to exclude certain categories of documents from the Commission’s initial search for responsive
records. Id. ¶¶ 18-19. This agreement was reached through five conversations between Ms.
St. Louis Matthis and CREW, the first of which took place on March 9, two days after CREW
submitted its FOIA request. 1 St. Louis Matthis Decl. ¶¶ 2-6. In that March 9 conversation, Ms.

1

By March 29, 2011, CREW indicated by letter that it had agreed to exclude from its
request: (1) correspondence sent by one of the named commissioners in a federal campaignrelated matter or rulemaking proceeding solely in his or her authorized capacity as Commission
Chair or Vice Chair, (2) correspondence docketed in a federal campaign related matter or
rulemaking proceeding and received by one of the named commissioners solely as a carbon
copy, and (3) correspondence forwarding official reports to other government agencies or
Congress and signed by one of the named commissioners solely in his or her authorized capacity
as Chair or Vice Chair, such as agency privacy reports or budget justifications. Compl. ¶ 18.
CREW subsequently further clarified that it was excluding from the request correspondence
docketed in a federal campaign-related matter or rulemaking proceeding and received by all the
commissioners. Id. ¶ 19.

3

Matthis informed CREW that the Commission would provide responsive materials on a rolling
basis. Id. ¶ 2. In two additional conversations on March 14 and March 18, 2011, Ms. Matthis
continued to discuss which categories of documents CREW would allow the Commission to
exclude from its initial search. In these two additional conversations she reiterated that the
Commission would provide documents on a rolling basis. Id. ¶ 3.
On May 4, 2011, Commission attorney Katie Higginbothom became the point of
contact for CREW’s request because Ms. St. Louis Matthis was preparing to leave her position
with the Commission in early June. Higginbothom Decl. ¶ 2. Ms. Higginbothom called CREW
that day and informed them that the Commission was still in the process of searching for
responsive documents. Id. ¶ 3. She also informed CREW that the Commission had located
thousands of potentially responsive documents that the Commission was in the process of
reviewing. Id. She further indicated her hope that the review would allow for provision of the
first batch of documents within a matter of weeks. Id. On May 23, 2011, CREW filed its
complaint in this matter. On June 15, 2011, the Commission provided CREW with 386 pages of
responsive materials. Id. ¶ 6. On June 21, 2011, the Commission sent to CREW a second batch
of responsive documents consisting of 354 pages of materials in electronic form. Id. ¶ 7. And
on June 23, 2011, the Commission sent CREW a third and final batch of responsive documents
consisting of 95 pages of materials in electronic form. Id. ¶ 8.

II.

CREW’S COMPLAINT SHOULD BE DISMISSED
A.

Standard of Review

Dismissal of a complaint is appropriate where, accepting the complaint as true and
drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to
state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v.
4

Twombly, 550 U.S. 544, 558 (2007) (holding dismissal appropriate “when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief”); Kassem v. Wash.
Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. Pardus, 551 U.S. 89, 93
(2007)). In deciding a motion to dismiss, the court may consider the complaint and documents
referenced in the complaint. See Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C.
2002) (noting that court may consider on motion to dismiss documents “incorporated by
reference in the complaint”).
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The court must view the record in the
light most favorable to the party opposing the motion, giving the non-movant the benefit of all
favorable inferences that can reasonably be drawn from the record and the benefit of any doubt
as to the existence of any genuine issue of material fact. Defenders of Wildlife v. Dep’t of Agric.,
311 F. Supp. 2d 44, 53 (D.D.C. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-159 (1970)). “To determine which facts are ‘material,’ a court must look to the substantive
law on which each claim rests.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “A ‘genuine issue’ is one whose resolution could establish an element of a claim or
defense and, therefore, affect the outcome of the action.” Id. (citing Celotex, 477 U.S. at 322,
and Anderson, 477 U.S. at 248).

5

B.

CREW’s Claim is Moot

Because CREW has received all the documents to which it is entitled under FOIA, its
claim is now moot and must be dismissed. A case becomes moot when the issues presented are
no longer live or the parties lack a legally cognizable interest in the outcome. Los Angeles Cnty.
v. Davis, 440 U.S. 625, 631 (1979). In FOIA cases generally, “Once the records are produced
the substance of the controversy disappears and becomes moot since the disclosure which the
suit seeks has already been made.” Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980).
On June 23, 2011, the Commission delivered by courier to CREW the last batch of nonexempt
materials it sought. See Higginbothom Decl. ¶ 9. 2 Having done so, CREW’s claims no longer
present a live controversy and are moot. See Drake v. FAA, 291 F.3d 59, 62 (D.C. Cir. 2002)
(holding that FOIA requests are moot once requester “received all the documents to which he is
entitled”); Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (explaining that once the
disclosure which the suit seeks has been made the controversy is rendered moot).
C.

CREW Failed to Exhaust Administrative Remedies

Even if CREW had not already received all the documents to which is entitled under
FOIA, CREW’s complaint would merit dismissal because CREW did not exhaust administrative
remedies before bringing suit. Potential litigants must generally exhaust administrative remedies
before filing suit in federal court in order to give an agency “an opportunity to exercise its
discretion and expertise on the matter and to make a factual record to support its decision.”
Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the
Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). Exhaustion “allows the top managers of an agency to

2

The Commission treated correspondence of the type that CREW agreed to exclude from
the Commission’s initial search as unresponsive to CREW’s request. See Higginbothom Decl.
Exh. 2.
6

correct mistakes made at lower levels and thereby obviates unnecessary judicial review.”
Oglesby, 920 F.2d at 61 (D.C. Cir. 1990). “[I]t would be both contrary to ‘orderly procedure and
good administration’ and unfair ‘to those who are engaged in the tasks of administration” to
decide an issue which the [agency] never had a fair opportunity to resolve prior to being ushered
into litigation.” Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986)
(quoting United States v. Tucker Truck Lines, 344 U.S. 33, 36-37 (1952)). In short, the
exhaustion requirement “prevent[s] premature interference with agency processes.” Weinberger
v. Salfi, 422 U.S. 749, 765 (1975).
“It goes without saying that exhaustion of [administrative] remedies is required in FOIA
cases.” Dettmann, 802 F.2d at 1476. In such cases, requesters may not bring suit until they have
actually or constructively exhausted their administrative remedies. Regarding the former, FOIA
section § 552(a)(6)(A) sets forth the time limits that apply to requests and provides for an
administrative appeal process of agency denials at the conclusion of which a requester can file
suit. This provision specifies that upon receiving a request, an agency must determine within
twenty days whether to comply with the request, at which time the agency shall inform the
requester “of such determination and the reasons therefor, and of the right of such person to
appeal to the head of the agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). If
appeal is taken, section § 552 gives agencies twenty days to render a decision. Id. at
§ 552(a)(6)(A)(ii). If the agency decides to entirely or even partly uphold its denial, the agency
must notify the requester of FOIA’s provision for judicial review, id., which vests the district
courts with jurisdiction to order the production of records improperly withheld, 5 U.S.C.

7

§ 552(a)(4)(B). Nowhere has CREW alleged that it actually administratively appealed anything
to the Commission. 3
FOIA also provides that a requester can constructively exhaust administrative remedies.
FOIA section 552(a)(6)(C) specifies that a requester “shall be deemed to have exhausted his
administrative remedies” if the agency fails to comply with the time limits in section
552(a)(6)(A), including the requirement that an agency inform a requester within twenty days
whether it will comply with the request and of his appeal rights. Thus, a requester can bring suit
if an agency has failed to “respond” within the time limits in section 552(a)(6)(A). Oglesby,
920 F.2d at 62 (“If the agency has not responded within the statutory time limits, then, under
5 U.S.C. 552(a)(6)(C), the requester may bring suit.”). “But once the agency responds to the
FOIA request, the requester must exhaust his administrative remedies before seeking judicial
review.” 4 Id. at 64.
To trigger the requirement that a requester actually exhaust administrative remedies
before bringing suit, the government merely needs to indicate that it is in the process of
responding to the request — action that the Commission clearly took in this matter. See PetitFrere v. U. S. Attorney’s Office for S.D. of Fla., 664 F. Supp. 2d 69, 71 (D.D.C. 2009) (quoting
Oglesby, 920 F.2d at 61); supra p. 3-4. And this is true whether or not the agency’s response
qualifies as a final decision capable of appeal. In Petit-Frere, the plaintiff submitted a FOIA
3

Commission regulations set forth the procedures by which a requester can
administratively appeal a denial of a FOIA request or the failure of the Commission to respond to
a request within ten working days of receiving it. 11 C.F.R. § 4.8.

4

A FOIA requester cannot constructively exhaust administrative remedies so long as the
agency responds before the requester files suit, even if the agency responds after the statutory
time limit has passed. Oglesby, 920 F.2d at 63-64 (“[A]n administrative appeal is mandatory if
the agency cures its failure to respond within the statutory period by responding to the FOIA
request before suit is filed.”). Because the Commission responded to CREW’s request before
twenty days had elapsed, however, the Court need not rely on this rule regarding belated pre-suit
agency responses.
8

request to a component office of the Department of Justice in June 2008. Before the plaintiff
filed suit, the government notified the requester by letter dated August 28, 2008, “that it would
assign the request to one of two tracks, depending on the size of the request, and process the
request in the order it was received within the track.” 664 F. Supp. 2d at 70. The government
also informed plaintiff that it would take approximately nine months to process his request. Id.
After ten months had passed and the government had not updated plaintiff on the progress of his
request, or otherwise responded to his inquiries, plaintiff filed an administrative appeal. In
response, the government informed the plaintiff by letter that it could not consider his appeal
because no adverse determination had yet been made. Id. Plaintiff filed suit in August 2009
claiming that he had constructively exhausted administrative remedies. Id.
The court rejected this claim, holding that the government’s August 2008 letter was a
sufficient response to preclude constructive exhaustion. The court explained that “all that is
required in this circuit within the time period is ‘a reply from the agency indicating that it is
responding to [the] request.’” Id. at 71 (quoting Oglesby, 920 F.2d at 61). “Because [the
government] responded before plaintiff submitted this complaint for filing . . . constructive
exhaustion does not apply and the plaintiff is required to exhaust his administrative remedies
before he can exercise his right to have this court entertain this suit.” Id.
Here, too, the Commission responded before plaintiff filed its complaint, and CREW did
not constructively exhaust its administrative remedies. Indeed, within three weeks of CREW’s
FOIA request, Commission staff had acknowledged the request, negotiated an agreement to
narrow the search for responsive documents, and indicated that responsive documents would be
provided on a rolling basis. See supra pp. 2-3. Thus, compared with the government’s response
to the FOIA request at issue in Petit-Frere, the Commission’s response to CREW’s request was

9

even more sufficient to require CREW to actually exhaust administrative remedies. In PetitFrere, the government merely informed the requester that the request had been assigned to one
of two processing tracks and that it would be processed in the order it was received — with no
actual document production within ten months. Id. at 70. The Commission, in contrast, had
spoken on the phone with CREW at least six times before CREW filed suit. In those
“conversations and communications,” Compl. ¶ 18, the Commission clearly indicated that it was
in the process of responding to CREW’s request. In those pre-suit conversations, the
Commission had obtained CREW’s agreement to exclude certain categories of documents from
the Commission initial search for responsive records,5 had informed CREW that the Commission
had located thousands of potentially responsive documents that it was in the process of
reviewing, and had informed CREW that it would produce documents on a rolling basis — a
production that began only weeks later and that is now complete. See supra p. 4. 6 Given both
their frequency and substance, the multiple communications from the Commission more than
adequately constitute “a reply from the agency indicating that it is responding to [the] request.”
Petit-Frere, 664 F. Supp. 2d at 71 (quoting Oglesbly, 920 F.2d at 61).
Indeed, judicial review at this juncture would be unnecessary and would defeat the
cardinal purpose of exhaustion: to avoid premature interference with agency processes. See,
e.g., Weinberger, 422 U.S. at 765. Those processes were not only ongoing when CREW filed

5

CREW’s original request was extremely broad and would have covered a wide range of
documents transmitted to or from individual Commissioners such as carbon copies of rulemaking
comments and official reports transmitted by the Chair or Vice Chair of the Commission to
Congress or the Office of Management and Budget. See supra p.3 n.1.
6

The “conversations and communications” with the Commission that CREW alleges,
Compl. ¶¶ 17-19, as well as the documents referenced in the complaint, St. Louis Matthis Decl.
Exhs. 1-2, are sufficient to show that the Commission adequately responded to the request and
that CREW’s Complaint therefore merits dismissal. Alternatively, the Court may rely on the
other facts presented in the attached declarations and grant the Commission summary judgment.
10

suit — indeed they are now complete — but commenced almost immediately upon receipt of
CREW’s FOIA request. Within two days of receiving it, the Commission contacted CREW
about its request. And as of this filing — within four months of receiving the request — the
Commission has already completed its response by providing CREW with 835 pages of
documents. See supra p. 4. CREW does not, and cannot, allege that Commission staff ever
indicated that the Commission would not respond to plaintiff’s FOIA request. To the contrary,
when CREW filed suit, it knew that the Commission was searching for responsive documents.
In sum, because no component of the Commission had rendered any decision against
CREW that top managers at the Commission could reconsider, see Oglesby, 920 F.2d at 61,
judicial review would be inappropriate. The Court should not “decide an issue which [the
Commission] never had a fair opportunity to resolve prior to being ushered into litigation.”
Dettmann, 802 F.2d at 1476 n.8.

III.

CONCLUSION
For all the foregoing reasons, the Commission respectfully asks this Court to dismiss

CREW’s Complaint, or in the alternative, grant summary judgment in favor of the Commission.
Respectfully submitted,
Phillip Christopher Hughey
Acting General Counsel
[e-mail]
David Kolker
Associate General Counsel
[e-mail]
Kevin Deeley
Assistant General Counsel
[e-mail]
11

/s/ Steve N. Hajjar
Steve N. Hajjar
Attorney
[e-mail]

June 23, 2011

FEDERAL ELECTION COMMISSION
999 E Street, N.W.
Washington, DC 20463
[phone]

12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 11-951 (CKK)
)
FEDERAL ELECTION COMMISSION, )
FEC STATEMENT OF MATERIAL
)
FACTS
Defendant.
)
____________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S STATEMENT
OF MATERIAL FACTS AS TO WHICH THERE IN
NO GENUINE DISPUTE

The defendant Federal Election Commission (“FEC” or “Commission”) submits the
following Statement of Material Facts as to Which There is No Genuine Dispute.
1.

The defendant Federal Election Commission is the independent agency of the

federal government with exclusive jurisdiction to administer, interpret and civilly enforce the
Federal Election Campaign Act of 1971, as amended (“FECA”). See 2 U.S.C. §§ 437c(b)(1);
437d(a), (e); and 437g. The Commission is broadly empowered to investigate possible
violations of the FECA and other federal statutes within the Commission’s jurisdiction, 2 U.S.C.
§ 437g(a)(1), and has exclusive jurisdiction to initiate civil actions in the United States district
Courts to obtain enforcement of these statutes, 2 U.S.C. §§ 437c(b)(1); 437d(a)(6); 437d(e).
2.

On March 7, 2011, Citizens for Responsibility and Ethics in Washington

(“CREW”) submitted a request to the Commission under the Freedom of Information Act, 5
U.S.C. § 552, seeking various categories of records related to communications between three

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Commission members and individuals and entities outside the Commission. Compl. ¶ 1;
Higginbothom Decl. Exh. 1.
3.

In its request, CREW sought:

•

Correspondence related to any business between Commissioners Matthew S. Petersen,
Caroline C. Hunter, and Donald F. McGahn and any individual or entity outside the
Commission from the date each Commissioner took office;

•

All calendars, agendas, or other records of the schedules of these three Commissioners;

•

All written ex parte communications delivered to any agency ethics official by any of
these Commissioners, or by anyone acting on their behalf pursuant to Commission
regulations 11 C.F.R. §§ 7.15(c), 201.3(c), and 201.4(a); and

•

All statements setting forth the substance and circumstances of any oral ex parte
communication prepared by any of these Commissioners or someone acting on their
behalf and delivered to an agency ethics official pursuant to Commission regulations, 11
C.F.R. §§ 7.15(d), 201.3(c), and 201.4(a). Compl. ¶¶ 13-14; Higginbothom Decl. Exh. 1.
4.

The day after receiving CREW’s request, the Commission emailed CREW to

acknowledge receipt of the request and to inform CREW that its application for a fee waiver had
been granted. Compl. ¶ 17.
5.

In “subsequent conversations and communications” with FEC Assistant General

Counsel Nicole St. Louis Matthis, CREW agreed to exclude certain categories of documents
from the Commission’s initial search for responsive records. Id. ¶¶ 18-19; St. Louis Matthis
Decl. ¶¶ 2-6.
6.

This agreement was reached through five conversations between Ms. St. Louis

Matthis and CREW, the first of which took place on March 9, two days after CREW submitted
its FOIA request. St. Louis Matthis Decl. ¶¶ 2-6.
7.

In this March 9 conversation, Ms. Matthis informed CREW that the Commission

would provide responsive materials on a rolling basis. Id. ¶ 2.
8.

In two additional conversations on March 14 and March 18, 2011, Ms. Matthis

continued to discuss which categories of documents CREW would allow the Commission to

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exclude from its initial search. In these two additional conversations she reiterated that the
Commission would provide documents on a rolling basis. Id. ¶ 3.
9.

On May 4, 2011, Commission attorney Katie Higginbothom became the point of

contact for CREW’s request because Ms. St. Louis Matthis was preparing to leave her position
with the Commission by early June 2011. St. Louis Matthis Decl. ¶ 8; Higginbothom Decl. ¶ 2.
10.

Ms. Higginbothom called CREW that day, May 4, 2011, and informed them that

the Commission was still in the process of searching for responsive documents. Higginbothom
Decl. ¶ 3. She also informed CREW that the Commission had located thousands of potentially
responsive documents that the Commission was in the process of reviewing. Id. She further
indicated her hope that the review would allow for provision of the first batch of documents
within a matter of weeks. Id.
11.

On May 23, 2011, CREW filed its complaint in this matter. Compl.

12.

On June 15, 2011, the Commission provided CREW with 386 pages of responsive

documents. Id. at ¶ 6.
13.

On June 21, 2011, the Commission provided CREW with 354 pages of responsive

documents. Id. at ¶ 7.
14.

On June 23, 2011, the Commission provided CREW with 95 pages of responsive

documents. These documents constituted the remaining agency records responsive to CREW’s
request. Id. at ¶ 8.

Respectfully submitted,
Phillip Christopher Hughey
Acting General Counsel
[e-mail]

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David Kolker (D.C. Bar No. 394558)
Associate General Counsel
[e-mail]
Kevin Deeley
Assistant General Counsel
[e-mail]
/s/ Steve N. Hajjar
Steve N. Hajjar
Attorney
[e-mail]

June 23, 2011

FEDERAL ELECTION COMMISSION
999 E Street NW
Washington, DC 20463
[phone]

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