                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
PETER J. VROOM,                     )
                                    )
      Plaintiff,                    )
                                    )
      v.                            )                 Civil Action No. 12-143
                                    )
FEDERAL ELECTION COMMISSION, )
                                    )
      Defendant.                    )
___________________________________ )

                                  MEMORANDUM OPINION

               Peter J. Vroom seeks review of the dismissal of his administrative complaint by

the Federal Election Commission.1 Mr. Vroom complained that the FEC wrongly approved the

disaffiliation of General Electric Company’s Political Action Committee (“GEPAC”) and Penske

Truck Leasing Corporation, L.P.’s Political Action Committee (“Penske PAC”). The PACs had

been affiliated due to GE’s financial control of Penske. With their request to disaffiliate the

PACs, GE and Penske informed the FEC that their relationship had changed, so that GE no

longer held a controlling financial interest in Penske. Mr. Vroom urged the FEC to investigate

GE and Penske, asserting that they had filed false and misleading information about their

corporate relationship, which had caused the FEC to disaffiliate their two PACs wrongly.

Without four votes among the FEC Commissioners to initiate an investigation, Mr. Vroom’s



1
  Under the Federal Election Campaign Act, “[a]ny person who believes a violation of [the]
Act . . . has occurred, may file a complaint” with the FEC. 2 U.S.C. § 437g(a)(1).
Commissioners vote on whether they have “reason to believe” a violation has occurred. Id.
§ 437g(a)(2). If four of the six commissioners vote affirmatively, the FEC begins an
investigation. Id. However, if no majority makes such a finding, the FEC dismisses the
complaint, and the complainant may seek district court review of whether the dismissal is
“contrary to law.” Id. § 437g(a)(8).
                                                 1
administrative complaint was dismissed. The FEC now moves to dismiss his amended complaint

before this Court, arguing that Mr. Vroom does not have standing to bring this suit because he

has suffered no tangible harm. Appearing pro se, Mr. Vroom insists he has suffered an

informational injury sufficient for standing.

                                             I. FACTS

               This Court previously dismissed without prejudice Mr. Vroom’s original

complaint for lack of jurisdiction. Order [Dkt. 12] (Dec. 6, 2012) at 4. That complaint sought

only a legal determination that GE and Penske violated the Federal Election Campaign Act

(“FECA”), 2 U.S.C. § 431 et seq., not a remedy to a cognizable injury. See Compl. [Dkt. 1] ¶ 16

(“The FEC’s failure to adequately investigate and pursue Vroom’s complaint and to cooperate

fully . . . has allowed GE/Penske to continue to operate in violation of the law and denied Mr.

Vroom the benefits of the FEC’s findings on the merits of his complaint.”). The Court dismissed

that complaint because “[t]o hold that a plaintiff can establish injury in fact merely by alleging

that he has been deprived of the knowledge as to whether a violation of the law has occurred

would be tantamount to recognizing a justiciable interest in the enforcement of the law. This we

cannot do.” Order at 3-4 (quoting Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997)

(per curiam)). In other words, even though FECA provides that “[a]ny person who believes a

violation of [the] Act . . . has occurred, may file a complaint,” and sue if the complaint is

dismissed, 2 U.S.C. § 437g(a)(8), a plaintiff must have standing to file a complaint in federal

court, which requires a personal and tangible interest in the outcome, or the court is without

jurisdiction under the Constitution to hear the claim. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992).




                                                  2
               In his opposition to the FEC’s motion to dismiss the initial complaint, Mr. Vroom

alleged an “informational injury,” citing Federal Election Commission v. Akins, 524 U.S. 11

(1998). Opp’n [Dkt. 9] at 9. Akins held that the plaintiffs had alleged a concrete and

particularized injury where the FEC had not defined the American Israel Public Affairs

Committee (“AIPAC”) as a political committee because this determination deprived the

plaintiffs of information regarding contributions to federal candidates made by AIPAC. Id. at

21. The Supreme Court found that voters have a cognizable injury when they are unable to

obtain information that helps them evaluate candidates for office. Id. Similarly, “Mr. Vroom

claimed in his opposition that he was prevented from seeking information that will help him to

evaluate candidates for office.” See Order at 4. As a result, the Court provided Mr. Vroom with

the opportunity to amend his complaint to reflect this injury. Id.

               Mr. Vroom filed his Amended Complaint on January 7, 2013, which includes

allegations of an informational injury. Am. Compl. [Dkt. 13]. He alleges that the FEC’s

dismissal of his complaint “denies Vroom the ability to fully and accurately determine the

source, magnitude and ultimate recipients of political contributions made by the General Electric

PAC.” Id. at 5-6. The FEC moves to dismiss for lack of jurisdiction, asserting again that Mr.

Vroom lacks standing to pursue his complaint. See Def. Mot. to Dismiss [Dkt. 15].

                                    II. LEGAL STANDARD

               When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of

Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the

benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d

1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court

may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098,



                                                 3
1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a

federal court because subject matter jurisdiction is an Article III and a statutory requirement.

Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming

subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr

v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).

                                         III. ANALYSIS

               FECA uses broad terms to describe its enforcement by the public: “[a]ny person”

who believes the law has been violated may file a complaint with the Commission, 2 U.S.C.

§ 437g(a)(1); “[a]ny party aggrieved by an order of the Commission dismissing a complaint filed

by such party” may seek review in the District Court for the District of Columbia, id.

§ 437g(a)(8)(A); and “[i]n any proceeding under this paragraph the court may declare that the

dismissal of the complaint or the failure to act is contrary to law,” id. § 437g(a)(8)(C) (emphases

added). Mr. Vroom filed a complaint with the Commission; he considers himself aggrieved by

the Commission’s failure to investigate his allegations; and he has petitioned for review in this

Court, arguing that the Commission’s failure to investigate is contrary to law.

               Despite the broad language of FECA, however, a plaintiff in federal court must

also satisfy the requirements for standing under Article III of the Constitution. To establish

standing, a plaintiff must have suffered an “injury in fact – an invasion of a legally protected

interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted).

Additionally, the injury must be “fairly traceable” to the defendant’s action or inaction and

“likely” to be “redressed by a favorable decision.” Id. at 660-61 (internal quotation marks

omitted). The Circuit has cautioned that:



                                                 4
           In those cases where “a plaintiff’s asserted injury arises from the
           government’s allegedly unlawful regulation (or lack of regulation) of
           someone else” it is substantially more difficult to establish injury in fact,
           for in such cases “one or more of the essential elements of standing
           ‘depends on the unfettered choices made by independent actors not
           before the courts and whose exercise of broad and legitimate discretion
           the courts cannot presume either to control or to predict.’”

Common Cause, 108 F.3d at 417 (quoting Lujan, 504 U.S. at 562). Thus, while Congress can

indicate its intent that disputes be resolved in federal court, as it has in FECA, a litigant must still

meet the requirements for standing set forth in Lujan to have his case heard. See id. at 419

(holding that FECA’s language providing for judicial review “does not confer standing; it

confers a right to sue upon parties who otherwise already have standing”). That is, Mr. Vroom

must present a real injury, caused by the FEC, and subject to amelioration by court order. The

FEC challenges Mr. Vroom’s ability to show an injury-in-fact.

                Although FECA itself does not confer Article III standing, allegations of

“informational injury” can provide the requisite injury-in-fact for such standing. That is, when

FEC action or inaction deprives voters of information that would help them evaluate candidates

for office, such voters may have standing to complain. See Akins, 524 U.S. at 21. “[T]he nature

of the information allegedly withheld is critical to the standing analysis,” Common Cause, 108

F.3d at 417, so that if the requested information is available from other filings, no standing

exists. See Wertheimer v. FEC, 268 F.3d 1070, 1073, 1075 (D.C. Cir. 2001) (noting that

appellants “only [sought] the same information from a different source”). Critically, “[i]f the

information withheld is simply the fact that a violation of FECA has occurred,” the plaintiff has

not suffered the type of “informational injury” recognized in Aikens. Common Cause, 108 F.3d

at 417.




                                                   5
                  Mr. Vroom tries to articulate an informational injury here. He alleges that the

FEC’s dismissal of his complaint “denies Vroom the ability to fully and accurately determine the

source, magnitude and ultimate recipients of political contributions made by the General Electric

PAC.” Am. Compl. at 5. He also alleges that FEC data is inaccurate and cannot be used for this

purpose because the contribution reports for the two PACs are no longer combined:

              The FEC argues that despite its approval of disafilliation for the GE and
              Penske PACs, Vroom is still able to determine the amount each PAC
              “reports” for its contributions to federal candidates, and therefore he
              suffers no informational injury. Incredibly, the FEC appears to be saying
              that as long as Vroom can get information, regardless of its validity or
              accuracy, he suffers no harm. . . . [T]he FEC has an obligation to collect
              and present to the public reliable and accurate information on federal
              political contributions. Therefore, it’s [sic] approval of the GE/Penske
              PAC disaffiliation and dismissal of Vroom’s complaint in the face of
              overwhelming evidence of the ongoing control of Penske by GE,
              imposes a very real and substantial injury upon Vroom and others who
              seek this information both in their occupations and for purposes of
              voting.

Id. at 6-7.

                  The question of standing raised by Mr. Vroom’s Amended Complaint resolves

itself as to whether he has suffered a justiciable injury from having to review multiple filings

from GEPAC and the Penske PAC to ascertain contribution levels instead of merely a combined

GEPAC/Penske PAC single filing. The PACs’ contribution levels and recipients, insofar as

FECA requires such disclosure, are already fully disclosed in GEPAC and the Penske PAC’s

respective FEC filings. Indeed, Mr. Vroom relies on the public disclosures by these PACs to

argue that the FEC erred in its decision to disaffiliate them. See Opp’n [Dkt. 17] at 10-11;

Compl. at 19. Thus, Mr. Vroom has not identified any information that is truly unavailable, only

that it is presented in a way that he believes is legally insufficient.




                                                   6
               Mr. Vroom seeks no additional facts but, rather, a legal determination, i.e., that

“any contributions made by the GE and Penske PAC’s [sic] that in the aggregate exceed the

limitations placed upon a single affiliated PAC, are illegal.” Am. Compl. at 9. The law in this

Circuit is clear that Mr. Vroom has no standing to sue on the basis that “the information withheld

is simply the fact that a violation of FECA has occurred.” See Common Cause, 108 F.3d at 417.

Likewise, the data error perceived by Mr. Vroom relates back to the FEC’s disaffiliation decision

about which he filed an administrative complaint and reflects only his desire for information

concerning a violation of FECA. See id. at 418 (“Nothing in FECA requires that information

concerning a violation of the Act as such be disclosed to the public.”).

                                      IV. CONCLUSION

               Although he redrafted his complaint to present an informational injury, Mr.

Vroom can articulate no inaccessible information from the GEPAC and Penske PAC filings that

would be available were the two PACs no longer disaffiliated. The FEC’s motion to dismiss,

Dkt. 15, will be granted. A memorializing Order accompanies this Memorandum Opinion.




Date: June 28, 2013                                            /s/             _
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge




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