                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

DAN LA BOTZ,                  :
                              :
     Plaintiff,               :    Civil Action No.:                            13-997 (RC)
                              :
     v.                       :    Re Document No.:                             12
                              :
FEDERAL ELECTION COMMISSION,  :
                              :
     Defendant.               :
                      MEMORANDUM OPINION

                          GRANTING THE FEC’S MOTION TO DISMISS

                                      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




                                                  2
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




                                                 3
(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




                                                  4
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 (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 (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.




                                                  5
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 a Claim (12(b)(6))

       The defendant has moved to dismiss for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6), but given that this case requires the Court to review agency action, the

traditional Rule 12(b)(6) standard of review does not apply. Rather, when agency action is

challenged, “[t]he entire case on review is a question of law and only a question of law. And

because a court can fully resolve any purely legal question on a motion to dismiss, there is no

inherent barrier to reaching the merits at the 12(b)(6) stage.” Marshall Cnty. Health Care Auth.

v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). Accordingly, “the district judge sits as an

appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).

                                             *       *       *

       The FEC first argues that the Court should dismiss this case for lack of subject matter

jurisdiction, as the Plaintiff no longer has standing and this case is now moot. See Def.’s Mot.

11‒13. In the alternative, the FEC contends that La Botz’s case should be dismissed for failure

to state a claim because the FEC’s use of prosecutorial discretion was reasonable and subject to

deference. Id. at 15‒20. The Court analyzes both issues in turn.




                                                 6
                     B. The Court Lacks Jurisdiction to Decide La Botz’s Claim

        The FEC first argues that given La Botz’s recent relocation to New York, the Court lacks

Article III jurisdiction to hear La Botz’s claim. Id. at 11. In response, La Botz argues that he has

continuing Article III standing, and further, that he falls under the “capable of repetition, yet

evading review” exception to the mootness doctrine. See Pl.’s Opp’n Mot. 16‒21, ECF No. 13.

Because the parties make arguments regarding both standing and mootness, the Court addresses

both of these jurisdictional doctrines, ultimately agreeing with the FEC as to each.

                                            1. Standing

        To meet the constitutional requirements of standing, a plaintiff must show: (1) he has

suffered an “injury in fact,” which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and

conduct at issue that is fairly traceable to the defendant; and (3) it is likely, not merely

speculative, the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560‒61.

Whether a plaintiff has standing is determined at the time the suit commences. Del Monte Fresh

Produce Co. v. U.S., 570 F.3d 316, 324 (D.C. Cir. 2009). Thus, standing in the present action is

ascertained from the facts as they existed when La Botz first filed his complaint in this Court in

2013. See Natural Law Party of the U.S. v. FEC, 111 F. Supp. 2d 33, 40 (D.D.C. 2000); see also

Lujan, 504 U.S. at 570 n.4 (“The existence of federal jurisdiction ordinarily depends on the facts

as they exist when the complaint is filed.”) (citation omitted). 1



        1
               The Court in La Botz I explained that “standing must be ascertained from the facts
as they existed when La Botz first filed his administrative complaint with the FEC in September
2010.” 889 F. Supp. 2d 51, 56 (D.D.C. 2012). When La Botz filed his first complaint in 2011,
he had represented to the Court that he would run again for federal office in Ohio. Id. at 59.
Thus, regardless of whether standing was ascertained based on facts in September 2010, or July
2011, when La Botz filed his first complaint in federal court, the outcome in La Botz I was the
same—he would likely run again for office in Ohio. Here, however, the facts as they existed in


                                                   7
        Here, La Botz did not have standing when he filed his complaint in 2013; though he

satisfies the injury and causation requirements of standing, his injury is no longer redressable.

As the Court explained in La Botz I, La Botz’s alleged injury, that he was unfairly excluded from

the ONO’s Senatorial debates, see AR011‒13, suffices for purposes of standing if his exclusion

violated the FECA. See Buchanan v. FEC, 112 F. Supp. 2d 58, 66 (D.D.C. 2000) (finding an

unfair exclusion from a presidential debate, in violation of the FECA, constituted an injury in

fact for purposes of standing); Shays v. FEC, 414 F.3d 76, 85 (D.C. Cir. 2005) (explaining that

courts routinely recognize that candidates forced to compete in illegally structured competitive

(i.e., campaign) environments have suffered an Article III injury); accord Herron for Congress

v. FEC, 903 F. Supp. 2d 9, 16 (D.D.C. 2012). The second element of standing, causation, is also

present in this case. By alleging that the FEC’s failure to enforce the laws it was tasked with

administering caused his injury, La Botz has satisfied the causation requirement. La Botz, 889 F.

Supp. 2d at 56.

        La Botz’s standing problem, however, is with redressability. The FEC argues that under

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013), La Botz lacks standing because, given recent

developments, there is now virtually no possibility that any decision by this Court could redress

his injury. Def.’s Mot. 14. In Nader, the court found that a presidential candidate could not

establish redressability because it was too speculative at the time he filed suit that he would run

again for President, thus making the chances of him being subjected to the same alleged

violations in a subsequent campaign too hypothetical. Id. at 229. Like Nader, La Botz’s 2013

statements that “[i]t is likely” that he will run for office, do not suffice to establish a redressable


2013, when La Botz filed his second complaint in federal court, are different from the facts that
existed when La Botz filed his administrative complaint in September 2010. Given this change,
the Court must base standing in this second action on the facts as they existed when the second
complaint was filed in 2013.


                                                   8
injury for purposes of standing, because La Botz will no longer be running for office in Ohio, as

he has relocated to New York. Compare La Botz Decl. 2013 ¶¶ 6, 8‒9, ECF No. 13-1

(explaining that he is “relocating to New York in January of 2014 where I will be domiciled for

the immediate future,” and that “[i]t is likely that I will run for federal office in the future”) with

La Botz Decl. 2011 ¶ 7, La Botz v. FEC, No. 11-1247, ECF No. 13-1 (“I am considering running

for office again, either for United States Senate in Ohio or for some other federal office as a

candidate of the Socialist Party of Ohio.”) (emphasis added). Given that he will not be running

for office again in Ohio, a favorable decision by this Court will not redress his injuries, as the

ONO’s selection criteria will no longer affect his campaigning. See Nader, 725 F.3d at 228

(explaining that “a favorable decision here will not redress the injuries he claims” because Nader

did not allege or show that he would be participating in an upcoming Presidential election);

Natural Law Party, 111 F. Supp. 2d at 50 (“[P]laintiffs’ injury can still be redressed by an FEC

determination that the 1996 debate selection criteria was unlawful, because as long as plaintiffs

run for office, they will continue to be subjected to debate selection criteria.”) (emphasis added).

La Botz therefore lacks standing, and his case must accordingly be dismissed.

                                            2. Mootness

        Even if La Botz could satisfy the requirements for standing, the judicial doctrine of

mootness would nevertheless prevent this Court from having Article III jurisdiction over his

claims. Courts must ensure that jurisdiction continues to exist throughout all stages of the

litigation. La Botz, 889 F. Supp. 2d at 57; Davis v. FEC, 554 U.S. 724, 732‒33 (2008) (“To

qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all

stages of review, not merely at the time the complaint is filed.”) (citation omitted); FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 461‒62 (2007) (“Article III’s ‘case-or-controversy requirement




                                                   9
subsists through all stages of federal judicial proceedings . . . [I]t is not enough that a dispute was

very much alive when suit was filed.’”) (citations omitted). As noted previously by this Court,

the mootness doctrine is a logical corollary to the case-or-controversy requirement: if subsequent

events have made it impossible for the court to grant effectual relief to the complaining party,

“‘any opinion as to the legality of the challenged action would be advisory.’” La Botz, 889 F.

Supp. 2d at 58 (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)).

        Given the unique circumstances surrounding most electoral controversies, it is very rare

for these claims to be fully litigated prior to election day. Herron for Congress, 903 F. Supp. 2d

at 14; see also Johnson v. FCC, 829 F.2d 157, 166 n. 7 (D.C. Cir. 1987) (explaining that issues

presented in a debate rules challenge would persist in future elections but could not be resolved

within the time frame prior to elections). Thus, many potentially meritorious claims in election

cases would routinely become moot as a matter of course. However, courts have consistently

applied an exception to the mootness doctrine in cases where challenged practices are “capable

of repetition, yet evading review.” See FEC v. Wis. Right to Life, 551 U.S. at 462 (noting that

election law challenges against the FEC “fit comfortably within the established exception to

mootness for disputes capable of repetition, yet evading review”); Davis, 554 U.S. at 735 (same);

Shays v. FEC, 424 F. Supp. 2d 100, 111 (D.D.C. 2006) (concluding challenge to presidential

debate rules after election was over is appropriately analyzed under “capable of repetition, yet

evading review” doctrine). This Court previously held that the Plaintiff’s claim fit within this

exception, see La Botz, 889 F. Supp. 2d at 58, but given subsequent developments, La Botz’s

claim no longer warrants this treatment and is now moot.

        To invoke this exception, a party must show that “(1) the challenged action is in its

duration too short to be fully litigated prior to cessation or expiration, and (2) there is a




                                                  10
reasonable expectation that the same complaining party will be subject to the same action again.”

E.g., Wis. Right to Life, 551 U.S. at 462 (citation omitted). Regarding the first prong, as

discussed above, electoral disputes can rarely be resolved through litigation prior to the

challenged action’s expiration. See Herron for Congress, 903 F. Supp. 2d at 14; Johnson, 829

F.2d at 166 n.7. Thus, “[e]lectoral disputes are . . . ‘paradigmatic’ examples of cases that cannot

be fully litigated before the particular controversy expires.” La Botz, 889 F. Supp. 2d at 59

(citing Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009)). Thus, La Botz’s challenge is

clearly one that evades review under the first prong of the analysis.

       The second prong requires that there be a reasonable expectation that the “same

complaining party will be subject to the same action again.” E.g., Wis. Right to Life, 551 U.S. at

462. Determining the scope of the term “same complaining party” has proved problematic for

courts and has led to inconsistent application of the exception in federal courts. See Van Wie v.

Pataki, 267 F.3d 109, 114 (2d Cir. 2001) (noting discrepancy in whether courts require same

complaining party or only similarly situated party for second prong of “capable of repetition, yet

evading review” test) (emphasis added), La Botz v. FEC, 889 F. Supp. 2d 51, 59 (D.D.C. 2012)

(same). In the electoral context, the Supreme Court has suggested that the capable of repetition,

yet evading review doctrine is appropriately applied where the state statute or policy in question

will be applied in future elections and thus cause a comparable harm to candidates in the future.

See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974).

       The Court did not have occasion to adopt a particular approach in La Botz I, because it

found that La Botz himself could be subjected to the same challenged action again. La Botz, 889

F. Supp. 2d at 59 (“[T]his [C]ourt need not reconcile any putative discrepancy in the case law to

resolve this case.”). The Court simply noted that some courts only require the plaintiff to show




                                                 11
“others similarly situated” might suffer comparable harm in the future. See id. (emphasis in

original) (citing Storer, 415 U.S. at 737 n.8).

       Again, this Court need not decide which approach is best—requiring the same party or

others similarly situated—because either way, La Botz’s injury is not capable of repetition yet

evading review. Even if this Court were to adopt the laxer, similarly situated standard, because

the ONO has implemented new written debate participant criteria, the chance of even a similarly

situated party being subjected to the same precise FECA violation in the future—the lack of pre-

existing, objective criteria—is slight. First, the ONO’s criteria are now pre-existing and in

written form, so there is no chance that a candidate—including Scott Rupert, the Plaintiff’s

example—will be subjected to purportedly post-hoc rationales by the ONO. See AR154‒56

(outlining the ONO’s newly proffered “evidence of electoral support” criteria (in addition to

showing at least 10% success in Ohio state polls from March thru September 2012): (1) raising at

least $500,000 in financial support; (2) being the nominee of a major party; or (3) receiving in

excess of 10% of the general election vote preceding the Senatorial vote) (emphasis in original).

Second, although this Court need not decide the substantive issue, it notes that other courts,

including this one, have already concluded that, generally, the criteria relied upon by the ONO,

such as polling data and financial support, are objective for purposes of 11 C.F.R. § 110.13(c).

See Buchanan v. FEC, 112 F. Supp. 2d 58, 74 (D.D.C. 2000) (concluding that the use of a 15%

polling threshold requirement was a sufficiently objective criterion); La Botz, 889 F. Supp. 2d at

63‒64 (finding that consideration of financial support is an objective measure of a candidate’s

viability). Thus, the Plaintiff has not demonstrated “a reasonable expectation or a demonstrated

probability” that a similarly situated party will be subjected to the same action—the lack of pre-




                                                  12
existing, objective criteria by the ONO—to warrant invoking this exception to mootness. See

Herron for Congress v. FEC, 903 F. Supp. 2d 9, 14 (D.D.C. 2012) (citations omitted).

       And as for La Botz himself, he has not shown that he will ever be the same complaining

party again alleging the same FECA violation. In La Botz I, this Court found that the Plaintiff

fell within the “capable of repetition, yet evading review” exception because it was “likely that

he [would] run for federal office in Ohio again in the future.” Id. at 59. However, that is no

longer the case. La Botz has now relocated to New York “for the immediate future,” see La Botz

Decl. ¶ 6, and although he remains committed to running for federal office again in the future,

see La Botz Decl. ¶¶ 6, 8, it is no longer likely that he will run for Senate again in Ohio. 2 Thus,

La Botz has failed to carry his burden of showing that there is a “reasonable expectation” that he

will be subjected to the ONO’s alleged unfair debate practices again in the future. 3 Herron for

Congress, 903 F. Supp. 2d at 14 (holding that the plaintiff must “demonstrate a ‘reasonable

expectation’ or a ‘demonstrated probability’ that ‘the same controversy will recur involving the

same complaining party’”) (citation omitted). Accordingly, the Court finds that under either the

“same complaining party” or the “similarly situated party” standard, La Botz’s complaint is now

moot, and the Court lacks jurisdiction to hear his claims.




       2
                 Despite Plaintiff’s contentions, a presidential run is immaterial given that there is
no evidence in the record that the ONO has ever sponsored, nor ever will sponsor, a presidential
debate. In fact, the FEC has pointed out that the Commission on Presidential Debates has
sponsored every multi-party presidential debate since 1988. See Commission on Presidential
Debates, http://www.debates.org/ (2012).
        3
                 With respect to plaintiff’s broad argument that the FEC’s nationwide policy may
be used against him wherever in the country he decided to run for federal office, Pl.’s Opp’n
Mot. 17, he is misguided in his reasoning. Here, the plaintiff challenged the ONO’s alleged
violation of the FECA, see AR013, and thus, to meet the second prong of the capable-of-
repetition test (and similarly, the redressability prong of the standing test), he must show that he
will be subjected to the ONO’s alleged unfair debate practices again in the future if the FEC fails
to enforce its regulations.


                                                  13
       C.      Even if the Court Had Jurisdiction, It Would Still Dismiss this Case on the
               Merits Given the Commission’s Broad Prosecutorial Discretion.

       The FEC next argues that its dismissal of La Botz’s administrative complaint was a

reasonable exercise of its prosecutorial discretion. See Def.’s Mot. 16‒22. In response, La Botz

does not contest or dispute the FEC’s prosecutorial discretion rationale. See Pl.’s Opp’n Mot. 14

(“Plaintiff, for its part, does not challenge the FEC’s prosecutorial discretion.”). Instead, La Botz

challenges three broad policy statements in the Commission’s Factual and Legal Analysis in

MUR 6383R that he contends the FEC adopted as national policies. See id. at 22‒30. 4 The

Court again agrees with the FEC.




       4
                Though La Botz argues that the FEC adopted three “national policies” in
dismissing his complaint, the Court struggles to find where, exactly, the FEC did so. In its Legal
Analysis in MUR 6383R, the FEC stated that “[t]he ONO’s stated debate selection criteria of
first ensuring the eligibility of the candidates and then paring down the field of candidates to the
two frontrunners based on polling, conversations with political reporters and sources regarding
the races, and financial disclosures, were acceptably objective.” AR194‒95. La Botz claims this
“two frontrunner” policy systematically restricts the debates to the two major party candidates in
violation of FECA, and thus the FEC’s endorsement of this policy is an impermissible
interpretation of the Act. See Pl.’s Opp’n Mot. 24‒26. However, the FEC never implemented or
endorsed a “two frontrunner” policy that focuses only on major party status. The Court does not
read the FEC’s position to be that a debate-staging organization may adopt a “two frontrunner”
policy regardless of how much public support the third-place candidate has garnered. Rather, the
FEC explained that in these particular circumstances, the third-party candidates were too far-off
based on objective criteria. See AR194‒95. Importantly, the FEC recognized that “[m]ajor
party status can be a factor considered by a staging organization so long as it is not the only
factor.” AR194 (citing 11 C.F.R. § 110.13(c)) (emphasis added). And moreover, the ONO’s
now-written policy does not “restrict their debates to two candidates,” as La Botz argues. See
Pl.’s Opp’n Mot. 24. Rather, the ONO requires that one of three requirements be met as
evidence of electoral support (in addition to showing at least 10% success in Ohio state polls
from March thru September 2012): that the candidate (i) has raised at least $500,000 to support
his/her campaign since the formation of his/her campaign committee, (ii) is the nominee of a
major party; or (iii) received in excess of 10% of the general election vote in the immediately
preceding election for the office of United States Senator. AR155 (emphasis in original). Thus,
major party status is only one factor the ONO considers—not the only factor considered. A third
party candidate who meets one of the other two objective criteria could be selected to participate
in the debate.


                                                 14
       When reviewing an FEC decision not to prosecute, the standard to be applied is whether

the FEC has acted “contrary to law.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (citing

2 U.S.C. § 437g(a)(8)(C)). The FEC’s decision is “‘contrary to law’ if (1) the FEC dismissed the

complaint as a result of an impermissible interpretation of the Act . . . or (2) if the FEC’s

dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or

capricious, or an abuse of discretion.” Id. (citations omitted); 5 accord Akins v. FEC, 736 F.

Supp. 2d 9, 16‒17 (D.D.C. 2010). The arbitrary, capricious, or abuse of discretion standard is

“an extremely deferential standard which requires affirmance if a rational basis for the agency’s

decision is shown.” Orloski, 795 F.2d at 167 (internal quotation marks and citations omitted).

       The prosecutorial discretion afforded to the FEC is “considerable.” Nader, 823 F. Supp.

2d at 65 (“The FEC has broad discretionary power in determining whether to investigate a claim,

and its decisions to dismiss complaints are entitled to great deference as well, as long as it

supplies reasonable grounds.”) (citations omitted). An agency decision not to pursue a potential

violation involves a complicated balancing of factors which are appropriately within its

expertise, including whether agency resources are better spent elsewhere, whether its action

would result in success, and whether there are sufficient resources to undertake the action at all.

       5
                La Botz argues that the FEC could use its prosecutorial discretion to shield a
staging organization’s “race is allowed” policy from being challenged in district court. See Pl.’s
Opp’n Mot. 14. The Court finds this analogy inapt. Though the FEC’s prosecutorial discretion
is “considerable,” see Nader v. FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2011), its decision must
also not be contrary to law, as set forth above. See Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir.
1986). Courts have already determined that, generally, factors such as polling data and financial
support are objective, and represent a permissible interpretation of FECA. See Buchanan v.
FEC, 112 F. Supp. 2d 58, 74 (D.D.C. 2000); La Botz, 889 F. Supp. 2d at 63‒64. And as the FEC
has already recognized, “the revised [FECA staging organization] rules are not intended to
permit the use of discriminatory criteria such as race, creed, color, religion, sex or national
origin.” See Corporate and Labor Organization Activity, 60 Fed. Reg. 64,260-01, 64,262 (Dec.
14, 1995). Thus, the Plaintiff’s hypothetical would likely not survive an arbitrary and capricious
challenge, because any criteria based on race would likely not constitute a reasonable
interpretation of FECA, and would thus be contrary to law.


                                                 15
See Heckler v. Chaney, 470 U.S. 821, 831 (1985). Absent a clear showing of abuse of discretion,

“it is not [the court’s] place to direct the [FEC] how to expend its resources, and it is certainly

not the plaintiffs’.” Akins v. FEC, 736 F. Supp. 2d 9, 22 (D.D.C. 2010). Finally, an agency’s

decision not to pursue a particular claim is “a decision generally committed to an agency’s

absolute discretion.” Heckler, 470 U.S. at 831.

           Here, La Botz fails to meet the substantial burden of showing that the Commission’s

dismissal of his complaint under its prosecutorial discretion was “contrary to law” or an abuse of

discretion. On remand, the Commission determined that there was insufficient evidence in the

record to conclusively establish whether the ONO had in fact employed pre-existing objective

criteria in selecting debate participants. AR195. The Commission then noted that ascertaining

precisely the “nature and timing of the criteria employed by the ONO would require an extensive

examination of the ONO’s debate planning process.” AR197. Additionally, it determined that

further investigation would require a labor intensive review of the ONO’s internal

communications, including those of all eight constituent media entities. Id. Finally, given that

only a single item in the record supported La Botz’s allegation, 6 the Commission concluded his



       6
                La Botz argues that the FEC incorrectly concluded that oral evidence is sufficient
to prove that the ONO employed pre-existing objective criteria in advance of the 2010 debates.
See Pl.’s Opp’n Mot. 27‒28. La Botz seems to rely on La Botz I for support that
contemporaneous evidence is required, in addition to oral evidence. But La Botz I never made
that conclusion—La Botz I concluded that the FEC’s determination was not based on substantial
evidence because the contemporaneous evidence contradicted the other evidence without
appropriate examination by the FEC. La Botz, 889 F. Supp. 2d at 62. Importantly, La Botz I
acknowledged that “while the FEC regulations do not specifically require debate staging
organizations to reduce their criteria to writing, it is strongly encouraged.” Id. (citing Corporate
and Labor Organization Activity; Express Advocacy and Coordination with Candidates, 60 Fed.
Reg. 64,260-01, 64,262 (Dec. 14, 1995), available at 1995 WL 735941). And in this case, the
FEC never made that precise conclusion; rather, the FEC concluded that “undocumented
affirmative statements submitted by or on behalf of respondents will suffice so long as the
evidence shows that the criteria were used in a manner consistent with the media organization’s
affirmative statements.” AR195 (emphasis added). Because the FEC found that the ONO had


                                                  16
claim did not “warrant undertaking such a resource-intensive review and would be an inefficient

use of the Commission’s limited resources.” 7 Id.

       After conducting a thorough review of the evidence in the record, the Commission

ultimately decided its resources would be better utilized elsewhere, a decision entirely within its

discretion. See Stark v. FEC, 683 F. Supp. 836, 840 (D.D.C. 1988) (concluding it is “surely

committed to the [FEC’s] discretion to determine where and when to commit its investigative

resources”); see also La Botz, 889 F. Supp. 2d at 63 n.6 (noting the FEC’s decision to dismiss La

Botz’s complaint could have been justified under its prosecutorial discretion). The FEC is not

required to pursue every potential violation of FECA, see Heckler, 470 U.S. at 831, but rather

may appropriately dismiss matters that do not “merit further use of Commission resources, due

to…vague[] or weak[] evidence.” FEC Statement of Policy Regarding Commission Action in

Matters at the Initial Stage of the Enforcement Process, 72 Fed. Reg. 12,545, 12,546 (Mar. 16,

2007). Here, given the conflicting evidence in the record, in order for the FEC to conclude that it

had reason to believe that the ONO had committed a violation of FECA, it would have been

required to investigate further. However, as this Court previously noted in La Botz I, it seems



made inconsistent statements, it decided that “[t]o conclusively determine the nature and timing
of the criteria employed by the ONO would require an extensive examination of the ONO’s
debate planning process . . . [which] would be an inefficient use of the Commission’s limited
resources.” AR197. Thus, La Botz’s argument that the FEC improperly concluded that oral
evidence is sufficient (1) lacks any legal support, and (2) lacks a basis in the record.
        7
                 La Botz argues that the FEC impermissibly relieved the ONO of its evidentiary
burden. See Pl.’s Opp’n Mot. 29. This argument lacks merit for two reasons. First, La Botz
confuses the steps: the FEC was deciding whether to investigate further; at that point, the ONO
had no burden of proof. Second, neither the FECA, nor FEC regulations impose a burden of
production on debate staging organizations. And even if the FEC had required the ONO to
surrender all of its materials and documentation, the FEC would still have had to expend
countless resources and man-hours reviewing and analyzing these items—which is one of the
reasons the FEC declined to exercise its prosecutorial discretion, as set forth above, in the first
instance. Thus, for the same reasons discussed above, it appears that a dismissal on grounds of
prosecutorial discretion would still have been reasonable and not an abuse of discretion.


                                                 17
very unlikely that La Botz would have benefitted from the ONO’s use of any objective criteria,

given that he received less than 1% support in previous polls. 889 F. Supp. 2d at 63 n.6; see also

AR079 (showing that in each of the ten polls relied upon by the ONO, no third party candidate,

including La Botz had received more than 1% of the votes). Thus, it seems entirely reasonable

for the FEC to opt not to pursue La Botz’s claim, but rather to expend its resources on more

salient and potentially fruitful matters. Therefore, the FEC’s dismissal of La Botz’s

administrative complaint was within its prosecutorial discretion and not contrary to law or an

abuse of discretion.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court will grant the FEC’s motion to dismiss both for lack

of subject matter jurisdiction and for failure to state a claim. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.


Dated: July 25, 2014                                                RUDOLPH CONTRERAS
                                                                    United States District Judge




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