La Botz v. Fed. Election Comm'n

61 F.Supp.3d 21

Dan La Botz, Plaintiff

v.Federal Election Commission, Defendant.

Civil Action No.: 13–997 RC

United States District Court, District of Columbia.

Signed July 25, 2014

Oliver B. Hall, Washington, DC, for Plaintiff.

Robert William Bonham, III, Harry Jacobs Summers, Kevin Deeley, Federal Election Commission, Washington, DC, for Defendant.

Re Document No.: 12

MEMORANDUM OPINION

Granting the FEC's Motion to Dismiss

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Dan La Botz was a member of Ohio's Socialist Party who unsuccessfully ran for the U.S. Senate in 2010. La Botz claims that the Ohio News Organization (“ONO”) unfairly excluded him from a series of sponsored televised debates held in the month preceding the election. He filed an administrative complaint with the Federal Election Commission (“FEC”), alleging that his exclusion from the debates violated the Federal Election Campaign Act (“FECA”). The FEC dismissed his complaint on prosecutorial discretion grounds, and La Botz brought suit, alleging that the FEC's action was contrary to law. Now before the Court is the FEC's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Given that La Botz has recently relocated to New York and has no foreseeable plans to run for the Senate again in Ohio, his case is now moot, and the Court lacks jurisdiction to proceed. Moreover, because the FEC is afforded broad prosecutorial discretion, its dismissal of La Botz's complaint is not contrary to law, and therefore, La Botz's case must be dismissed on the merits regardless of jurisdiction.

II. BACKGROUND

A. Legal Framework

The FECA prohibits corporations from making financial contributions in connection with any federal election. 2 U.S.C. § 441b(a) (2002). The FECA does, however, allow corporations to make expenditures in furtherance of “nonpartisan activit[ies] designed to encourage individuals to vote,” such as televised debates. Id. § 431(9)(B)(ii); see La Botz v. FEC, 889 F.Supp.2d 51, 54 (D.D.C.2012) (explaining that the FECA “allows corporations to defray the costs of nonpartisan televised debates”) (citing Hagelin v. FEC, 411 F.3d 237, 238 (D.C.Cir.2005) ). Corporations providing financial assistance to debate staging organizations must satisfy several criteria to ensure the debates remain nonpartisan. 11 C.F.R. § 114.4(f). Specifically, FEC regulations require staging organizations to be non-profit organizations that do not “endorse, support, or oppose political candidates or political parties,” id.§ 110.13(a)(1), and the debates may not be structured “to promote or advance one candidate over another,” id. § 110.13(b)(2). Additionally, staging organizations must employ “pre-established objective criteria to determine which candidates may participate in a debate.” Id. § 110.13(c).

Any person believing a violation of the FECA has occurred may file an administrative complaint with the FEC. 2 U.S.C. § 437g(a)(1). Upon receipt of the complaint, there are several steps the FEC will then take. See generally 2 U.S.C. § 437g(a)(2)–(6). If the FEC determines “that it has reason to believe that a person has committed ... a violation of the [FECA] ...” the FEC will notify that person, and then “make an investigation of the alleged violation.” See 2 U.S.C. § 437g(a)(2). If the FEC concludes no violation has occurred, it may dismiss the complaint. See La Botz, 889 F.Supp.2d at 55 (citing 2 U.S.C. § 437g(a)(8)(A) ); see also Hagelin, 411 F.3d at 239. A party whose complaint has been dismissed may file a civil action in this court challenging the validity of the FEC's decision. 2 U.S.C. § 437g(a)(8)(A).

B. Factual Allegations and Procedural History

On September 1, 2010, the ONO, a consortium of eight Ohio newspapers, announced it was sponsoring a series of televised debates between the Democratic and Republican candidates for Ohio's U.S. Senate seat. AR005. La Botz was excluded from the debates. AR011. He alleges he received no prior notice when the debates were to take place, nor given the opportunity to achieve the criteria required for participation. Id. On September 21, 2010, La Botz filed an administrative complaint with the FEC alleging that the ONO violated federal regulations by not relying on “pre-established objective criteria” in selecting the debate participants. AR003, AR011.

1. MUR 6383

Upon receiving the Plaintiff's administrative complaint (MUR 6383), the FEC solicited responses from the ONO, the eight newspaper organizations, as well as the Republican and Democratic campaigns' respective committees and treasurers. AR055–60. The FEC's general counsel reviewed the administrative complaint and issued a report concluding that the ONO employed pre-existing objective criteria in compliance with 11 C.F.R. § 110.13(c). AR119. Accordingly, the report concluded that there was “no reason to believe” the ONO had violated the FECA. AR120. In accordance with this report, the FEC commissioners dismissed La Botz's complaint. AR123.

2. La Botz I

On July 8, 2011, La Botz filed a court complaint alleging that the FEC's dismissal of his administrative complaint was contrary to law. See Compl., La Botz v. FEC, No. 11–1247 (D.D.C.2011), ECF No. 1. The FEC filed a motion to dismiss, and this Court denied that motion and remanded the matter to the agency. La Botz, 889 F.Supp.2d at 64. This Court found that it had jurisdiction to hear the Plaintiff's claim under the “capable of repetition, yet evading review” exception to the mootness doctrine because La Botz would likely “run for federal office in Ohio again in the future.” Id. at 59 (internal quotation marks omitted). On the merits, this Court also held that the FEC's dismissal of La Botz's complaint was contrary to law, because its determination that the ONO used pre-existing criteria to select debate participants was not based on “substantial evidence.” Id. at 62. The Court noted that “its holding only applies to the FEC's determination that the ONO used pre-existing criteria,” (emphasis added) and that it had “no quarrel with FEC's” determination that the criteria the ONO used had been objective . Id. at 63 (emphasis added). The Court finally noted that “it seems possible that the FEC's decision to dismiss La Botz's administrative complaint could have been justified entirely by the FEC's prosecutorial discretion, which is ‘considerable.’ ” Id. at 63 n.6 (citing Nader v. FEC, 823 F.Supp.2d 53, 65 (D.D.C.2011) ).

3. MUR 6383 On Remand

On remand, given the absence of substantial evidence in the record, the FEC decided that further investigation was necessary to conclusively determine whether the ONO had, in fact, employed pre-established objective criteria in choosing participants in advance of the 2010 debates. AR194–197. After concluding that pursuing an extensive investigation into the ONO's debate planning process would be an inefficient use of the Commission's limited resources, the Commission exercised its prosecutorial discretion and dismissed the matter. AR185, AR197–198. La Botz once again brought suit in this Court, alleging that the FEC's decision was contrary to law. Pending before the Court is the FEC's motion to dismiss, both for lack of subject matter jurisdiction and for failure to state a claim. See Def.'s Mot. Dismiss, ECF No. 12. For the reasons that follow, the Court will grant the FEC's motion to dismiss on both grounds.

III. ANALYSIS

A. Legal Standards

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))

Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction....” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. E.P.A., 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Because subject matter jurisdiction focuses on the Court's power to hear a claim, the Court must give the plaintiff's factual allegations closer scrutiny than would be required for a 12(b)(6) motion for failure to state a claim.See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F.2d 4, 16 n. 10 (D.C.Cir.1987). Instead, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981) ).

The D.C. Circuit has explained that a motion to dismiss for lack of standing constitutes a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure because “the defect of standing is a defect in subject matter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). Likewise, “[m]otions to dismiss on grounds of mootness are properly brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Flores ex rel. J.F. v. District of Columbia, 437 F.Supp.2d 22, 27 (D.D.C.2006) ; Toxco, Inc. v. Chu, 801 F.Supp.2d 1, 5 (D.D.C.2011) (“Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness.”) (citing Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744–45 (D.C.Cir.1991) ); see also Del Monte Fresh Produce Co. v. U.S., 570 F.3d 316, 321 (D.C.Cir.2009) (reviewing de novo district court's dismissal of case on mootness grounds under Federal Rule of Civil Procedure 12(b)(1) ).

2. Motion to Dismiss for Failure to State...