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NOT YET SCHEDULED FOR ORAL ARGUMENT

United States Court of Appeals
for the District of Columbia Circuit
No. 22-7038
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,v.

Plaintiff-Appellant,

AMERICAN ACTION NETWORK,Defendant-Appellee.
––––––––––––––––––––––––––––––On Appeal from the United States District Court for
the District of Columbia in No. 1:18-cv-00945-CRC
Honorable Christopher Reid Cooper, U.S. District Judge

PUBLIC REPLY BRIEF FOR PLAINTIFF-APPELLANTSATHYA GOSSELIN
CLAIRE ROSSET
HAUSFELD
888 16th Street NW, Suite 300
Washington, DC 20006(202) 540-7200
sgosselin@hausfeld.com
crosset@hausfeld.com

STUART MCPHAIL
Litigation Counsel
ADAM J. RAPPAPORTCITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON
1331 F Street, NW, Suite 900
Washington, DC 20004(202) 408-5565
smcphail@citizensforethics.org
arappaport@citizensforethics.org

Counsel for Plaintiff-Appellant
July 28, 2023
COUNSEL PRESS, LLC(202) 783-7288 * (888) 277-3259

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TABLE OF CONTENTS
Table of Contents ..................................................................................................... i
Table of Authorities ................................................................................................ ii
Glossary................................................................................................................. vii
Summary of the Argument...................................................................................... 1
Argument................................................................................................................. 3
I.

The 2016 Statement Did Not Preclude Review of the 2016
Dismissal ............................................................................................ 3

II.

The 2014 Statement is a “Dead Letter”............................................ 11

III.

The Court Must Disregard New Models Because It May Not
Disregard Earlier Precedent and Supreme Court Authority............. 13

IV.

AAN’s Attempt to Silence Its Perceived “Ideological Opponent”
Injures CREW .................................................................................. 18V.

CREW’s Submissions Confirm CREW’s Standing, and the Court
May Consider Them ......................................................................... 25

Conclusion ............................................................................................................ 27i

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TABLE OF AUTHORITIESPage(s)
Cases
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ......................................................................................15, 17
Advanced Mgmt. Tech. Inc. v. FAA,
211 F.3d 633 (D.C. Cir. 2000) ............................................................................23
AFL-CIO v. FEC,
333 F.3d 168 (D.C. Cir. 2003) ............................................................................27
Akins v. FEC,
101 F.3d 731 (D.C. Cir. 1996) ............................................................................22
Am. for Prosperity Found. v. Bonta,
141 S. Ct. 2373 (2021) ........................................................................................27
Buckley v. Valeo,
424 U.S. 1 (1976) ......................................................................................1, 21, 25
Cannon v. District of Columbia,
717 F.3d 200 (D.C. Cir. 2013) ............................................................................20
Chamber of Com. v. FEC,
69 F.3d 600 (D.C. Cir. 1995) .......................................................................15, 17
Chevron, U.S.A., Inc. v. NRDC,
467 U.S. 837 (1984) ..............................................................................................8
Citizens United v. FEC,
558 U.S. 310 (2010) ..................................................................................1, 24, 27
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988) ............................................................................................24
CLC v. FEC,
No. 22-cv-1976(JEB), 2022 WL 17496211 (D.D.C. Dec. 8, 2022)................... 17ii

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CLC v. FEC,
31 F.4th 781 (D.C. Cir. 2022) .......................................................................21, 27
CLC v. FEC,
952 F.3d 352 (D.C. Cir. 2020) ....................................................14, 18, 22, 26, 27
Common Cause v. FEC,
108 F.3d 413 (D.C. Cir. 1997) ................................................................19, 22, 26
Common Cause v. FEC,
842 F.2d 435 (D.C. Cir. 1988) ............................................................................17
CREW v. FEC,
209 F. Supp. 3d 77 (D.D.C. 2016) ............................................5, 6, 11, 12, 13, 20
CREW v. FEC,
316 F. Supp. 3d 349 (D.D.C. 2018) ................................................................7, 19
CREW v. FEC,
55 F.4th 918 (D.C. Cir. 2022) .....................................................................3, 7, 14
CREW v. FEC,
892 F.3d 434 (D.C. Cir. 2018) ..................................................................5, 14, 20
CREW v. FEC,
923 F.3d 1141 (D.C. Cir. 2019) ..........................................................................14
CREW v. FEC,
971 F.3d 340 (D.C. Cir. 2020) ........................................................................7, 19
CREW v. FEC,
993 F.3d 880 (D.C. Cir. 2021) ................... 3, 4, 5, 7, 8, 10, 12, 13, 14, 15, 17, 20
CREW v. FEC,
No. 14-cv-1419-CRC, 2017 WL 11810872 (D.D.C. Apr. 6, 2017) ...................11
Ctr. for Sci. in the Pub. Int. v. Regan,
727 F.2d 1161 (D.C. Cir. 1984) ....................................................................11, 13
DCCC v. FEC,
831 F.2d 1131 (D.C. Cir. 1987) ..........................................................................17iii

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DHS v. Regents of U. of Cal.,140 S. Ct. 1891 (2020) ................................................................6, 8, 9, 10, 11, 12
Doe, 1 v. FEC,
920 F.3d 866 (D.C. Cir. 2019) .............................................................................. 9
ECU v. FEC,
No. 22-cv-1665(TJK), 2022 WL 1136062 (D.D.C. Apr. 18, 2022)................... 17
ECU v. FEC,
No. 21-cv-2128(RJL), 2022 WL 4289654 (D.D.C. Sept. 16, 2022) .................. 17
ECU v. FEC,
69 F.4th 916 (D.C. Cir. 2023) ...................................................8, 9, 10, 13, 16, 17
FEC v. Akins,
524 U.S. 11 (1998) ......................................................................14, 15, 17, 21, 22
FEC v. Malenick,
310 F. Supp. 2d 230 (D.D.C. 2004) ....................................................................27
Fisher v. Pension Benefit Guar. Corp.,
994 F.3d 665 (D.C. Cir. 2021) ............................................................................11
Gonzales v. Thomas,
547 U.S. 183 (2006) ............................................................................................11
Heckler v. Chaney,
470 U.S. 821 (1985) ..................................................................................8, 14, 16
ICC v. Bhd. Of Locomotive Eng’rs,
482 U.S. 270 (1987) ......................................................................................15, 17
Int’l Union, United Mine Workers v. Dep’t of Lab.,
358 F.3d 40 (D.C. Cir. 2004) ..............................................................................18
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................20
Maloney v. Carnahan,
45 F.4th 215 (D.C. Cir. 2022) .............................................................................21iv

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Motor Vehicles Mfrs Ass’n of the U.S. Inc. v. State Farm Mut. AutoIns. Co.,
463 U.S. 29 (1983) ..............................................................................................17
Mundo Verde Pub. Charter Sch. v. Sokolov,
315 F. Supp. 3d 374 (D.D.C. 2018) ....................................................................20
Orloski v. FEC,
795 F.2d 156 (D.C. Cir. 1986) ......................................................................15, 17
Sierra Club v. EPA,
292 F.3d 895 (D.C. Cir. 2000) ......................................................................20, 25
Sierra Club v. Jackson,
648 F.3d 848 (D.C. Cir. 2011) ............................................................................15
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ............................................................................................24
Spokeo Inc. v. Robins,
578 U.S. 330 (2016) ............................................................................................21
Swanson Grp. Mfg., LLC v. Jewell,
790 F.3d 235 (D.C. Cir. 2015) ............................................................................25
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ............................................................................20, 21, 26
United States v. Texas,
143 S. Ct. 1964 (2023) ..................................................................................14, 18
United States v. Torres,
115 F.3d 1033 (D.C. Cir. 1997) ..........................................................................17
United States v. Van Smith,
530 F.3d 967 (D.C. Cir. 2008) ......................................................................10, 25
Wertheimer v. FEC,
268 F.3d 1070 (D.C. Cir. 2001) ..........................................................................22v

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Zivotofsky ex rel. Ari Z v. Sect’y of State,
444 F.3d 614 (D.C. Cir. 2006) ............................................................................21
Statutes
52 U.S.C. § 30106(c) ...............................................................................................16
52 U.S.C. § 30109(a)(8) ...........................................................................................14
52 U.S.C. § 30109(a)(8)(C) .....................................................................................10
Rules
Fed. R. Evid. 201 .....................................................................................................20
Other Authorities
FEC, Statement of Policy, 72 Fed. Reg. 12545 (Mar. 16, 2007) .............................16vi

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GLOSSARY
AAN
CHGO
CLC
CREW
ECU
FEC
FECA
JA
MUR

American Action Network
Commission on Hope, Growth andOpportunity
Campaign Legal Center
Citizens for Responsibility and Ethics
in Washington
End Citizens United
Federal Election Commission (or“Commission”)
Federal Election Campaign Act
Joint Appendix
Matter Under Review

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SUMMARY OF THE ARGUMENT
Over the past thirteen years, AAN has spent more than $150 million to
influence federal elections while depriving Americans of knowledge about “[t]hesources of [their] candidate’s financial support,” Buckley v. Valeo, 424 U.S. 1, 67(1976), and about “who is speaking about a candidate” through funding AAN,
Citizens United v. FEC, 558 U.S. 310, 369 (2010). AAN’s patronage, which only
grows, has placed benefitted officials “in the pocket” of the “moneyed interests”
that they know fund AAN while evading public accountability. Id. at 370.
CREW has sought the disclosures required of AAN so that CREW may
carry out its work to promote ethics and combat corruption, twice by seeking relief
from the FEC and, when those efforts were exhausted because of partisan
deadlock, bringing this action directly against AAN. AAN insists, however, that
because a partisan aligned non-majority of FEC Commissioners mentioned“prosecutorial discretion” in a post-hoc rationalization for a superseded 2014deadlocked vote on the merits of CREW’s complaint, CREW may not vindicate its
rights under the FECA. But AAN is wrong.
This action arose when the FEC failed to conform with a district court’s
judgment that the Commission’s 2016 dismissal of CREW’s administrativecomplaint was contrary to law: the prerequisite for a private lawsuit under the
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FECA. The statement of reasons for that dismissal in 2016—another post-hoc
rationalization from the agency’s non-majority—“nowhere mentioned” AAN’s
magic words. JA110. The statement’s incorporation as “Background” of the earlier
2014 statement explaining the earlier dismissal does not change that fact. JA344.
The earlier 2014 statement also never invoked factors beyond a court’s
comprehension to review and, in any event, it was rendered a dead letter by theCommission’s reconsideration of CREW’s complaint and decision to take new
action on it.
Moreover, the absurdity of this search for magic words underscores theconflict between the recent divided authority on which AAN relies and the longstanding precedent from this Circuit and the U.S. Supreme Court, which
recognizes that groups like CREW may vindicate their own rights when the FEC
proves “unable” or “unwilling” to do so. This Court must follow that earlier
binding authority, even if it means leaving AAN’s authority to the side, to return
this action to the district court so that CREW may finally obtain information that
AAN has unlawfully withheld and use it to communicate what AAN has censoredfor more than a decade.
Finally, there is no serious dispute about the court’s jurisdiction as even
AAN concedes CREW will analyze and communicate AAN’s disclosures to
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others. CREW’s supplementary submissions, which CREW could not present
below, confirm beyond doubt that AAN’s information is precisely the type the
FECA requires to be disclosed.
ARGUMENTI.

The 2016 Statement Did Not Preclude Review of the 2016 Dismissal
CREW obtained the right to seek relief against AAN when a district court

reviewed the non-majority’s 2016 statement of reasons for the FEC’s 2016
dismissal of CREW’s complaint, judged the dismissal was “contrary to law,” andthe FEC thereafter failed to exercise its right of “first refusal” by conforming withthat judgment within thirty days. CREW v. FEC, 55 F.4th 918, 929 (D.C. Cir.
2022) (en banc) (“New Models II”) (Millett, J., dissenting); see JA132–61; see also
JA343–61 (the “2016 Statement”). Thereafter, in CREW’s subsequent suit against
AAN, the court reversed course, finding that intervening authority in CREW v.
FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models I”) precluded that earlier
judgment because the 2016 Statement incorporated a “wink” at prosecutorial
discretion from an earlier 2014 statement explaining an earlier 2014 dismissal,
depriving CREW of its right to seek relief against AAN. JA122. The court’s firstdecision, which it still “stands by,” JA107, was correct, however, and AAN fails todemonstrate otherwise.
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First, the 2016 Statement, authored by the partisan-aligned non-majority
bloc of three Commissioners who voted that CREW’s complaint lacked merit andthus deadlocked the agency, did not include a “passing reference to prosecutorial
discretion” that might insulate the FEC’s dismissal from judicial review under New
Models I, see 993 F.3d at 886; rather, it “nowhere mentioned prosecutorial
discretion.” JA42. Indeed, notwithstanding the dismissal below, the court
reaffirmed that it still reads the 2016 Statement to “nowhere” mention it. JA110.
That reading is confirmed by the contemporary statement of the otherCommissioners who provided the majority vote to close: they stated dismissal
resulted from their colleagues “ignor[ing] the court’s ruling and the plain languageof the ads that objectively criticized candidates” when assessing AAN’s politicalcommittee status. See JA363. They did not, however, discuss any discretionary
justification, because their colleagues offered none to justify dismissal. See
generally JA362–67.
To avoid this fact, AAN urges that the 2016 Statement’s reference in“Background” to an earlier statement from 2014 explaining a different dismissal,
see JA344 (citing JA178 (the “2014 Statement”)), “reaffirmed [the non-majority’s]
exercise of prosecutorial discretion” to explain the 2016 vote, AAN Br. 33. But not
so. In the 2016 Statement, the non-majority nowhere stated they “reaffirm”
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prosecutorial discretion, cf. id., or attempt to invoke it with respect to the 2016
vote. Rather, the non-majority simply recognized the earlier 2014 Statement
existed, and that, except for their analysis on the spending threshold, the 2014
Statement was ruled to be contrary to law. See JA344.1 The 2016 Statement,
moreover, lays out the analysis from the 2014 Statement, the analysis that is“incorporate[d],” id., but omits any reference to prosecutorial discretion or claimthat the 2014 dismissal was based on any factor other than law. JA345–47 & n.13;
see also FEC Br. 5, CREW v. AAN, No. 14-cv-1419-CRC (D.D.C. Dec. 12, 2016)(stating the 2016 Statement “summarize[d] the previous dismissal of plaintiff’s
administrative complaint and the Court’s opinion (Statement 1-5)” and then“reexamined AAN’s spending,” but omitting any claim the new statement
reaffirmed prosecutorial discretion). The omission not only reveals the reference to“prosecutorial discretion” was not, as AAN now posits, an independent
explanation in the 2014 Statement, but reflects the basic fact that one cannot

The court’s decisions and Commissioners’ statements predate the new bar on
review from New Models I and CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018)(“CHGO I”), see JA132; CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016)(“CREW I”), so neither the district court nor the Commissioners believed thereference was beyond the court’s reach. Cf. AAN Br. 33 (asserting court could notreview “prosecutorial discretion” under New Models I). Rather, the district court
understood the non-majority’s reference to “prosecutorial discretion” was “partand-parcel of the Commissioners’ reviewable legal interpretations,” which thecourt ruled were contrary to law. JA56–57.
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simply “incorporate” prosecutorial discretion for one act to support another,different act.
This point is all the more relevant here because the 2016 dismissal occurredin a new context. In 2014, the Commissioners believed the First Amendment
excused AAN from disclosure because, for example, AAN attacked candidates byfalsely alleging they gave Viagra to rapists. See JA210 n.137 (citing “constitutional
doubts” as basis for reference to “prosecutorial discretion”). CREW I disabused
them of that error. See 209 F. Supp. 3d at 91. Accordingly, one cannot assume, as
AAN does, that the non-majority had some new unarticulated basis forprosecutorial discretion for their new vote simply because they incorporated“Background.” Perhaps that is why AAN speaks of “reaffirm[ation],” see AAN Br.
31–34, despite the notable absence of such language from the 2016 Statement’s
discussion of the 2014 Statement. Cf. DHS v. Regents of U. of Cal., 140 S. Ct.
1891, 1907 (2020) (review is limited “to the grounds the agency invoked when it
took the action”). The 2016 Statement “does not mention prosecutorial discretionat all,” JA57, and AAN cannot invent such a mention now.
Second, even if the 2016 Statement could be read to “reaffirm” the 2014
Statement’s “wink” to prosecutorial discretion as an explanation for the 2016
dismissal, that wink still would not preclude review because the non-majority only
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Page 15 of 38“reference[d] their merits analysis as a ground for exercising prosecutorial
discretion.” New Models II, 55 F.4th at 920 (Rao, J., concurring); CREW v. FEC,
316 F. Supp. 3d 349, 421–22 (D.D.C. 2018) aff’d 971 F.3d 340 (D.C. Cir. 2020);
see JA118 (non-majority’s reference to prosecutorial discretion was “rooted
entirely in [their] legal misgivings”). Indeed, the Commissioners who provided the
majority vote to close in 2014 state at the time that they understood theircolleagues’ justification for dismissal was due to an “impasse” on applying “theanalytic approach enunciated” in the agency’s “written policy” on politicalcommittee qualification, JA178–79, JA182, not on analysis of prudential factors.
AAN argues that legal analysis is immune from review if it is labeled“prosecutorial discretion,” but that misreads New Models I. When New Models I
barred review of dismissals that rely “in part” on discretion, cf. AAN Br. 25, New
Models I was addressing a case where dismissal “rested on two distinct grounds”:
the Commissioners’ “interpretation of FECA and [their] exercise of …
prosecutorial discretion.” New Models I, 993 F.3d at 884 (emphasis added). The
claim of discretion in New Models I rested on “concerns about resource allocation”
and “evidentiary and statute of limitations hurdles” for a “defunct” defendant, id. at885: the type of “prudential and discretionary considerations” courts are incapableof reviewing, id. at 885–86 (“FECA provides ‘no “law” to apply’ in reviewing
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Page 16 of 38[Commissioners’] weighing of practical enforcement considerations.”). Rather thanthe “exact same language that precluded review,” AAN Br. 26, the 2014 Statement
contains no comparable discussion. Nor, indeed, could it: far from being “defunct,”
New Models I, 993 F.3d at 885, AAN is spending millions each election cycle toinfluence elections.
To try to cure this defect in its argument, AAN speculates about possible
factors like “resources” that the 2014 Statement’s reference, and the 2016
Statement’s background incorporation, might “reflect[].” AAN Br. 28. But courts
are “limited to the grounds that the agency invoked when it took the action.”
Regents, 140 S. Ct. at 1907, and AAN cannot now suggest new grounds absent
from the explanation the agency provided. 2
Third, regardless of the 2016 Statement’s content, it cannot obstruct judicial
review because it is a “post-hoc rationalization[],” as CREW asserted in its
opening brief. CREW Br. 44. The 2016 Statement was not “issued ‘at the time

AAN claims, despite not doing so below, that the 2016 Statement’s reference to
the Commissioners’ “expertise and experience” and balance of “the public’s need
and right to understand” are such prudential factors, AAN Br. 28–29, but notably
the Statement does not connect these to prosecutorial discretion or Heckler v.
Chaney, 470 U.S. 821 (1985). Rather, the appeal to “expertise” was an appeal fordeferential review under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43(1984). See, e.g., FEC Br. 11, CREW v. FEC, 14-cv-1419-CRC (D.D.C. Dec. 12,2016) (citing Chevron, but not Chaney, to defend 2016 Statement).
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when a deadlock vote result[ed] in … dismissal.’” ECU v. FEC, 69 F.4th 916, 920(D.C. Cir. 2023); see JA342 (vote on October 18, 2016), JA361 (statement issued
October 19, 2016). It is a “‘foundational principle of administrative law,’”
however, “that judicial review of agency action is limited to ‘the grounds that theagency invoked when it took its action.’” ECU, 69 F.4th at 921–22 (quoting
Regents, 140 S. Ct. at 1907). There was no explanation at the time of the 2016
vote—nothing the 2016 Statement could “amplif[y],” id. at 922—and thus nocontemporary explanation that could preclude judicial review, see id. at 924.
The issuance of the 2016 Statement after the vote to close the case deprived
the agency—that is, the full Commission—of any opportunity to consider the
grounds offered to explain the vote and engage in “self-correction.” Id. at 923; seealso Doe, 1 v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019) (the vote to “clos[e]the file … terminat[es] [the FEC’s] proceedings”). Indeed, the Commissioners who
provided the majority vote to close were unaware of any justification grounded inprosecutorial discretion. See JA178–84, JA362–67. Thus, it is irrelevant under
ECU that the statements were issued before “the commencement of litigation” over
the respective dismissals, cf. AAN Br. 35, because the opportunity for selfcorrection terminates at the moment of the vote to close, not when the FEC is sued.
69 F.4th at 920. CREW could sue the FEC at the moment of dismissal, moreover,9

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and ECU does not create a race-to-the-courthouse to beat an untimely statement.
Rather, the decision, in line with black-letter administrative law, closes theadministrative record “at the time” of action: here, the vote to close.
“[I]mpermissible post hoc rationalization[s]” like the 2016 Statement may
not render dismissals unreviewable or satisfy the Commissioners’ obligation to
explain their dismissal. Id. at 922 (quoting Regents, 140 S. Ct. at 1909). 3
Accordingly, as the “after-the-fact” 2016 Statement could not preclude review
regardless of what it incorporated, it could not preclude the court’s judgment thatthe 2016 dismissal was contrary to law, and thus cannot undermine CREW’s
exhaustion of its remedies that gave rise to this suit. 4

ECU departed from prior practice—included in New Models I—of reviewing
Commissioners’ statements issued after the vote to close the file. See ECU, 69
F.4th at 923 (recognizing prior practice, but noting no court reviewed a post-hoc
statement “over the complainant’s challenge”). ECU thus recognizes the conflict
between New Models I—and the dismissal below—and black-letter administrativelaw, CREW Br. 40–50, and demonstrates statements like the 2014 Statement andthe 2016 Statement may not preclude review. In any event, as AAN “rais[ed] [the]argument” in its opposition, see AAN Br. 35, CREW “may reply.” United States v.
Van Smith, 530 F.3d 967, 970 n.2 (D.C. Cir. 2008) (citations omitted).
4
Given the posture of ECU, the D.C. Circuit remanded the case to the agency for“further action,” 69 F.4th at 924: the next step in the FECA’s exhaustion process,see 52 U.S.C. § 30109(a)(8)(C). CREW’s suit has already progressed past thatstep, the FEC has already failed to conform, and CREW exhausted alladministrative remedies, giving rise to its ability to bring this suit.
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The 2014 Statement is a “Dead Letter”
Recognizing the 2016 Statement omits the language AAN needs, AAN’s

argument principally focuses on the 2014 Statement. But the 2014 Statement,
which, as explained above, cannot block review, is also a “dead letter” that may
not be revived by AAN. Ctr. for Sci. in the Pub. Int. v. Regan, 727 F.2d 1161, 1165
(D.C. Cir. 1984).
Contrary to AAN’s telling, CREW I did not remand for only “additional …
explanation” to supplement the 2014 Statement. Compare AAN Br. 32 with CREW
I, 209 F. Supp. 3d at 95 (deeming 2014 dismissal “contrary to law” and remanding
to “conform”; in citation parenthetical, quoting Gonzales v. Thomas, 547 U.S. 183,
186 (2006), for authority to “remand to the agency for additional investigation or
explanation”); see also CREW v. FEC, No. 14-cv-1419-CRC, 2017 WL 11810872,
at *1, *3 (D.D.C. Apr. 6, 2017) (stating CREW I “direct[ed] the FEC to reevaluate
its decisions not to investigate” AAN; noting FEC “reopened” matter on remand,“reconsidered the record in light of the Court’s Order,” “developed a newframework” and “applied that new framework to AAN’s ads”). Following CREW I,
the FEC took “new agency action” on remand. Fisher v. Pension Benefit Guar.
Corp., 994 F.3d 665, 669–70 (D.C. Cir. 2021); see also Regents, 140 S. Ct. at
1907–08 (agency may offer “a fuller explanation of the agency’s reasoning at the11

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time of the agency’s action” or, “[a]lternatively, the agency can ‘deal with the
problem afresh’ by taking new agency action”). Specifically, the Commission“reconsidered” the case “[c]onsistent with the court’s instructions and guidance,”
JA344, “examin[ing] in detail each of AAN’s electioneering communications,” id.,and took a new reason-to-believe vote on CREW’s complaint, resulting in a new
deadlock and a new dismissal, JA342; see also FEC Br. 4, CREW v. FEC, 14-cv1419-CRC (D.D.C. Dec. 12, 2016) (“Following the Court’s decision” in CREW I,“the Commission considered the AAN matter anew”); AAN Opp. 1, 9, 14-cv1419-CRC (D.D.C. Dec. 12, 2016) (asserting, after CREW I, FEC “reopened thematter,” “reconsidered [it] in full by reviewing the record anew,” and “again
dismissed and, for different articulated reasons concluded again that AAN was nota political committee,” but mentioning no exercise of discretion). It is thus
irrelevant whether the Commission “alter[ed] or withdr[e]w its previously
expressed position,” AAN Br. 32 (though the Commission has, in fact, now doneso, see JA374–87)5, because the FEC instead took new action, and it was obligatedto provide a new contemporaneous explanation for that action.

AAN claims to “describe CREW’s argument” that a statement by a non-majorityof Commissioners is controlling simply because they voted against reason-tobelieve “is to refute it,” AAN Br. 35, when what AAN in fact describes is theholding of New Models I.
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That the FEC acted only “but for” the court’s review of the 2014 dismissal,
AAN Br. 24, does not alter the fact it did act, and thus rendered the prior dismissal
and its explanation a dead letter. In Regan, “but for” the district court’s initial
judgment, the agency would not have revised its rule and explanation, but that did
not permit the parties to “revive” the earlier rule, 727 F.2d at 1162–63, 65–66, andAAN may not revive the 2014 Statement here.6
In any event, the 2014 Statement, like the 2016 Statement, is a “post-hoc
rationalization” that is without legal effect. ECU, 69 F.4th at 922. The 2014
Statement issued more than a month after the dismissal, did not amplify a timely
explanation, deprived the agency of an opportunity for self-correction, and could
not have precluded judicial review in CREW I. See JA185, JA214. If the 2014
Statement is not dead now, it is only because it was never alive to begin with.
III.

The Court Must Disregard New Models Because It May Not
Disregard Earlier Precedent and Supreme Court Authority

Judges of this Circuit have already recognized that CHGO and New Models I
irreconcilably conflict with earlier case law from this Circuit and the Supreme

AAN’s “defendant” exception, AAN Br. 34, is both unsupported by authority andinvites judicial chaos: every defendant in any agency proceeding could reopen
every prior judicial decision in the hope that “but for” some prior legal error, thedefendant would escape accountability. Further, AAN is only a defendant here: it
was an intervenor in the cases it now seeks to challenge, see JA132; CREW I, 209
F. Supp. 3d at 77, the same as the party in Regan, see 727 F.2d at 1165.
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Court. New Models I, 993 F.3d at 900–01 (Millet, J., dissenting); CLC v. FEC, 952
F.3d 352, 358–59 (D.C. Cir. 2020) (Edwards, J., concurring); CREW v. FEC, 923
F.3d 1141, 1145 (D.C. Cir. 2019) (en banc) (Pillard, J., dissenting). AAN, inapparent agreement, does not attempt to reconcile them. It simply notes, “NewModels … adhered to CHGO, which adhered to Chaney.” AAN Br. 39. But theSupreme Court held, and every precedent prior to CHGO I recognized, Chaney’s“limit on review … explicitly” does not apply to FECA review. FEC v. Akins, 524
U.S. 11, 26 (1998). AAN’s syllogism simply restates the conflict.
Were there any doubt, the Supreme Court has reaffirmed that Chaney’s limiton the review of “exercise[s] of enforcement discretion” do not apply to FECA
review. United States v. Texas, 143 S. Ct. 1964, 1971, 1973 (2023) (citing Akins,
524 U.S. at 20 as example of permissible challenge to enforcement discretion).
That follows from the fact that FECA review does not permit a Court to “require[]
additional arrests or prosecutions.” Id. Rather, the FECA “never requires theagency to bring an enforcement action.” New Models II, 55 F.4th at 923 (Millet, J.,dissenting). “[A]ll that happens is that the private complainant is authorized tobring a lawsuit in its own name under the Act.” Id. at 929.7

In contrast to additional arrests, authorizing suit is “redress[] [available from] afederal court.” Texas, 143 S. Ct. at 1973; 52 U.S.C. 30109(a)(8).
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Indeed, AAN’s attempts to defend New Models I simply prove its conflictwith precedent. AAN claims that, under New Models I, the non-majority’s silence
on prudential factors cannot impact review because “what matters in every case is
not the reason the FEC gives” to dismiss. AAN Br. 24–25 (citing ICC v. Bhd. Of
Locomotive Eng’rs, 482 U.S. 270, 282–83 (1987)). In other words, it is “formal
action, rather than its discussion, that is dispositive.” ICC, 482 U.S. at 281. Yet,AAN claims New Models I precludes review because the “reasons” in the 2016
“Statement of Reasons,” JA343 (emphasis added), incorporated the “discussion” ofprosecutorial discretion in the 2014 “Statement of Reasons.” AAN Br. 31; see also
JA343 (“This Statement of Reasons sets forth our reasons for voting.”). AAN
apparently agrees then, at the very least, that New Models I’s conditioning review
on “the reasons the [non-majority] gives” conflicts with ICC (and thus also Abbott
Labs. v. Gardner, 387 U.S. 136, 140 (1967), see CREW Br. 40), which alone
means New Models I, “being in violation of that fixed law, cannot prevail,” Sierra
Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011).8

New Models I did not attempt to reconcile itself with ICC or Abbott Labs, see
New Models I, 993 F.3d at 893 (addressing only “Akins, DCC, Chamber ofCommerce, and Orloski”), two of many cases from CREW’s brief. Nor does AAN
cite anything for its proposition that a panel is free to “violat[e] [] fixed law” if it
denies it’s doing so. Cf. Sierra Club, 648 F.3d at 854.
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AAN attempts to evade this conflict by conflating the Commission’s
majority vote to “invoke[] its discretion,” with a non-majority’s explanation for its
vote on the merits, AAN Br. 27. By law, the FEC may only exercise its discretion
through a majority vote of the Commission. 52 U.S.C. § 30106(c) (“All decisions… shall be made by a majority vote”); FEC, Statement of Policy, 72 Fed. Reg.
12545, 12546 (Mar. 16, 2007) (exercising discretion requires four votes); see also,e.g., Certification, MUR7591R (Mar. 24, 2022), https://perma.cc/742P-4CPM (6-0
vote to “[d]ismiss the allegations pursuant to Heckler”); cf. ECU, 69 F.4th at 921(Commission did not invoke discretion because it “failed to get the requisite four
votes” to do so). In contrast, the “invo[cation]” here is only a reference in the nonmajority’s statement to explain their vote on the merits. AAN Br. 27 (stating“[h]ere, the FEC invoked its discretion like this:” and then quoting discussion in
the 2014 Statement). That is insufficient to invoke the Commission’s powers.
Attempting to minimize New Models I’s revolution, AAN ignores theimpacts of New Models I’s departure from precedent. AAN’s proof of the judicious
use of New Models I’s powers isn’t even from the non-majority, compare AAN Br.
30–31 with Factual And Legal Analysis, MUR Nos. 7309, 7399 (Crowdpac, Inc.)(June 7, 2019), https://perma.cc/7AS7-PXZ5 (General Counsel’s analysis
unanimously approved by Commission). Rather, when the non-majority seeks to
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insulate erroneous legal conclusions from challenge, they now cite prosecutorial
discretion every time. See, e.g., Statement of Reasons 2, MUR7464 (LZP, LLC)
(July 7, 2023), https://perma.cc/7FDV-68UY; Statement of Reasons 5 n.3,
MUR8038 (Angel Staffing, Inc.) (July 3, 2023), https://perma.cc/9393-ZUHF;
Statement of Reasons 1, MUR7912 (Senate Leadership Fund) (Mar. 1, 2023),
https://perma.cc/E3EE-27WR. That is why New Models I has proven fatal to every
challenge to the FEC’s dismissals since it issued, see CLC v. FEC, No. 22-cv1976(JEB), 2022 WL 17496211, at *7 (D.D.C. Dec. 8, 2022); ECU v. FEC, No.
21-cv-2128(RJL), 2022 WL 4289654, at *5 (D.D.C. Sept. 16, 2022); at least until
this Court recently concluded that post-hoc statements like the 2014 and 2016
Statements cannot preclude review, ECU, 69 F.4th at 923 (overruling ECU v. FEC,
No. 21-cv-1665(TKJ), 2022 WL 1136062 (D.D.C. Apr. 18, 2022)).
“[P]anels of this court [] are obligated to follow controlling circuit precedentuntil either [this Court], sitting en banc, or the Supreme Court, overrule it.” UnitedStates v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997). That is why this Court
must follow Akins, 524 U.S. 11, Chamber of Commerce v. FEC, 69 F.3d 600 (D.C.
Cir. 1995), DCCC v. FEC, 831 F.2d 1131 (D.C. Cir. 1987), Orloski v. FEC, 795
F.2d 156 (D.C. Cir. 1986), ICC, 482 U.S. 270, Abbott Laboratories, 387 U.S. 136,
as well as Common Cause v. FEC, 842 F.2d 435 (D.C. Cir. 1988), Motor Vehicles
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Manufactures Ass’n of the U.S. Inc. v. State Farm Mutual Auto Insurance Co., 463
U.S. 29 (1983), International Union, United Mine Workers v. Department ofLabor, 358 F.3d 40 (D.C. Cir. 2004), and the myriad other earlier authorities citedin CREW’s opening brief, and now Texas, 143 S. Ct. 1964, despite AAN’s and
New Models I’s treatment of those authorities.
IV.

AAN’s Attempt to Silence Its Perceived “Ideological Opponent”
Injures CREW

AAN wields the FEC non-majority’s statement to silence its perceived“ideological opponent,” AAN Br. 1, and prevent CREW from discussing AAN’s“donors” with “the public,” id. at 50–51. But AAN’s assertion that CREW has nostanding to contest that censorship and to obtain lawful disclosures for CREW’s
work is baseless.
Withholding FECA disclosures injures CREW because there is “‘no reason
to doubt’ that the disclosures [it] seek[s] would further [its] efforts to defend andimplement campaign finance reform.” CLC, 952 F.3d at 356. The CLC plaintiffs’
representations, sufficient to confer standing, that they “participated in ‘public
education, litigation, regulatory practice, and legislative policy,’” or “‘conduct[ed]public education efforts, participate[ed] in litigation’ and undert[ook] ‘advocacy
efforts,’” id., are indistinguishable from CREW’s allegations here, see JA14 ¶¶10–
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reducing the influence of money in politics” through “a combination of research,
litigation, advocacy, and public education to disseminate information to the public
about public officials and their actions, and the outside influence that have beenbrought to bear” including “examining and exposing the special interest that haveinfluenced our elections and elected officials and using that information to educate
voters”); see also JA15 ¶¶12–15 (“CREW monitors the activities of … thosegroups financially supporting candidates for office or advocating for or against
their election” and “regularly reviews campaign finance reports” and “us[es] theinformation in those reports” to “publiciz[e] the role of these individuals andentities in the electoral process” like exposing “‘pay-to–play schemes’”); see also
CREW, 316 F. Supp. 3d at 383 (CREW has standing to pursue failure to disclose
FECA information) aff’d 971 F.3d 340.
More than “general description[s],” AAN Br. 42, CREW’s work, forexample, to expose “pay-to-play schemes” is obviously “hindered when” AAN, agroup receiving and spending millions each election cycle, “does not file
disclosure reports” revealing who is paying millions of dollars to play. Id. (quoting
JA15 ¶15); see also Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997)(the “nature of the information allegedly withheld is critical to the standing
analysis”). In any event, at the pleading stage (which AAN concedes is the19

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procedural juncture for this appeal, AAN Br. 48), “‘general factual allegations of
injury’” suffice as courts “‘presume[e] that general allegations embrace thespecific facts that are necessary to support the claim,’” Sierra Club v. EPA, 292
F.3d 895, 898-99 (D.C. Cir. 2000) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992)).
The impact on CREW’s work is a “downstream consequence” of AAN’s
nondisclosure. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021)(recognizing failures to disclose under FECA always have downstream
consequences); see also JA46 (“There is no reason to doubt CREW’s claim that the
information sought would help it in its activities”). 9 Moreover, even apart from thedownstream effect, the “informational injury” CREW alleges is theIf more were needed—and more is not—the court’s dockets and the FEC’s
website confirm CREW’s allegations. See, e.g., New Models I, 993 F.3d at 882–83(discussing CREW’s complaint using information in disclosures); CREW, 971 F.3d
at 343 (same); CHGO I, 892 F.3d at 447–48 (Pillard, J. dissenting) (same), CREW
I, 209 F. Supp. 3d at 82–83 (same); FEC, Closed Matters Under Review, searching“Citizens for Responsibility and Ethics in Washington” (last visited July 28, 2023),
https://perma.cc/ZZ5E-TNY3 (showing 47 CREW complaints); see also Fed. R.
Evid. 201 (“Judicial notice may be taken at any stage of the proceedings, whether
in the trial court or on appeal.”); Cannon v. District of Columbia, 717 F.3d 200,
205 n.2 (D.C. Cir. 2013) (permitting judicial notice of official government
websites). CREW’s website exhibits additional uses. See CREW,
www.citizensforethics.org; Mundo Verde Pub. Charter Sch. v. Sokolov, 315 F.
Supp. 3d 374, 381 n.3 (D.D.C. 2018) (“The court may take judicial notice ofrepresentations made on Plaintiff’s website.”); see also Standing Add. Ex. D,
ADD231–244.
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Page 29 of 38“‘quintessential’ injury in fact” and is established when plaintiffs “‘allege that theyfailed to recie[ve] … required information’ under a disclosure statute.” Maloney v.
Carnahan, 45 F.4th 215, 218 (D.C. Cir. 2022) (Mem.) (Millet, J., and Tatel, J.
concurring) (quoting TransUnion, 141 S. Ct. at 2214); see also id. ( “[T]herequester’s circumstances—why he wants the information, what he plans to dowith it, what harms he suffered from the failure to disclose—are irrelevant to his
standing” (quoting Zivotofsky ex rel. Ari Z v. Sect’y of State, 444 F.3d 614, 617(D.C. Cir. 2006)); see also Spokeo Inc. v. Robins, 578 U.S. 330, 342 (2016)(plaintiffs “need not allege any additional harm beyond the one Congress has
identified”). The “failure to obtain relevant information” required to be disclosed
under the FECA “is injury of a kind that FECA seeks to address.” Akins, 524 U.S.
at 20.
Rather than specificity, AAN’s real critique is about the nature of theconsequences to CREW. Yet its arguments run headlong into precedent.
First, the frustration of a “watchdog group’s” ability to gather “factual
information” is a cognizable injury, even where that information is sought to fulfill
a “generalized ‘interest in enforcement of the law.’” CLC v. FEC, 31 F.4th 781,
786, 789 (D.C. Cir. 2022). The FECA contemplates disclosure to, in part, permit
those like CREW to “gather[] the data necessary to detect violations” of the FECA.
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Buckley, 424 U.S. at 68; see also Spokeo, 578 U.S. at 342 (plaintiffs need only
allege harm of the type “Congress has identified”). The loss of that information,
though “widely shared,” is still particular to CREW. Akins, 524 U.S. at 25. CREW
isn’t merely seeking “monetary penalties,” Common Cause, 108 F.3d at 418, or“legal conclusion[s],” Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001).
Rather, CREW’s inability to gather facts to monitor for violations is a cognizable“downstream consequence.”
Second, standing is not limited to those “deprived of information that will be
used ‘for [their own] personal voting or political participation.’” See CLC, 952
F.3d at 356. AAN’s strategic ellipsis covers more than a mere aside. Compare
AAN Br. 43 (quoting Akins as limiting standing to those who seek information that“‘would help them … to evaluate candidates’”) with Akins, 524 U.S. at 21(standing for those denied information “that would help them (and the others towhom they would communicate it) to evaluate candidates” (emphasis added)).
Akins rejected the limit on standing imposed by the D.C. Circuit, which limited
standing to plaintiffs who “vote[d] in various federal elections.” Akins v. FEC, 101
F.3d 731, 738 (D.C. Cir. 1996) (en banc). The Supreme Court found standing is
not so limited, but rather “widely shared,” because, regardless of whether plaintiffs
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plaintiffs] would communicate” might do so. Akins, 524 U.S. at 21, 25. The
suppression of the plaintiffs’ speech was thus the injury. CREW has suffered justthat injury, which does not depend on CREW’s ability to vote.
Nor is AAN’s undisclosed information too old to be useful. Cf. AAN Br. 44.
First, CREW’s remedy is not simply “AAN’s more-than-a-decade-old donor list,”
AAN Br. 44, but rather “everything [AAN] would have had to disclose had it
complied with the law in the first instance” from 2009 to today and until such timeas AAN lawfully terminates its political committee status, JA60. Second,
beneficiaries of AAN’s 2010 spending remain in office, and there is no serious
assertion that AAN’s success in “flip[ping] the House” had only transitory impacts
on policy. AAN Br. 51. Third, even information from a decade ago is highly
useful: for example, CREW recently used the disclosures it obtained throughlitigation of decade-old donor activity to trace the financial activities of Harlan
Crow. See Harlan Crow’s deep dark money connections, CREW, June 15, 2023,
https://perma.cc/49PP-W2E5 (reporting Crow donated $50,000 to Americans for
Job Security). In any event, “[s]tanding is assessed ‘at the time the actioncommences,’” Advanced Mgmt. Tech. Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir.
2000), so AAN cannot benefit from the years that AAN has delayed disclosure.

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Ultimately, AAN recognizes that CREW intends to use its disclosures:
something AAN hyperbolically but revealingly characterizes as a “crusade” topierce AAN’s “privacy of association” and place AAN’s information “in the publicdomain” (beyond benefitted officeholders who already know AAN’s donors).
AAN Br. 1, 51. For these acknowledged efforts to expose corruption, AAN
disparages CREW as its “ideological opponent.” AAN Br. 50. AAN admits that it
is withholding information from CREW and trying to thwart CREW’s right topetition the courts so that it can benefit from the “downstream consequences”:
namely, silencing its perceived “opponent.” AAN Br. 1, 41. Indeed, in contrast to
AAN’s speculated First Amendment injuries, AAN Br. 46, AAN wields the nonmajority’s statement to “reduce[] the quantity of [CREW’s] expression” in definite
violation of CREW’s rights. Citizens United, 558 U.S. at 339; AAN Br. 1(asserting silencing CREW has protected its “confidentiality of donors”); see also
Sorrell v. IMS Health Inc., 564 U.S. 552, 569–70 (2011) (“restrict[ing] … access”
to “facts,” which are, “after all, … the beginning point for much of the speech thatis most essential to advance human knowledge and to conduct human affairs,” tosuppress speech violates First Amendment). “In the interim,” CREW’s“opportunities for speech are irretrievably lost.” City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 758 (1988) (recognizing plaintiff’s standing). CREW
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has standing to obtain this information and use it for the speech Congresscontemplated, but that AAN and its Commission allies have so far censored,
thereby subjecting AAN to the “sunlight [that is] the best of disinfectants,”
Buckley, 424 U.S. at 67.
V.

CREW’s Submissions Confirm CREW’s Standing, and the Court
May Consider Them
AAN effectively concedes this litigation is not yet “beyond the pleadings,”

and so CREW’s allegations suffice to establish jurisdiction. Sierra Club, 292 F.3d
at 899. Nevertheless, to the extent this Court disagrees, it may consider thematerials in CREW’s standing addendum and others subject to judicial notice.
AAN protests consideration of discovery materials, including in response toissues it first raised in its opposition brief here, 10 but it does not identify a single“opportunity [for CREW] to make a record of [its] standing in the district court.”
Swanson Grp. Mfg., LLC v. Jewell, 790 F.3d 235, 241 (D.C. Cir. 2015). CREW
could not submit these materials in response to AAN’s motion for reconsideration,
which did not seek reconsideration of the district court’s affirmance of CREW’s
standing. See JA107. Nor did any party have an opportunity to seek summary

AAN claim its information is not useful because it is “not … a politicalcommittee” based on extra-record materials, AAN Br. 8 n.1, permits CREW to
deploy evidence gathered in discovery. See Van Smith, 530 F.3d at 970 n.2.
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judgment, whereby CREW could have converted its allegations into proven facts.
Precedent simply does not support AAN’s attempt to sandbag CREW and burden
this Court with previously unraised concerns, see JA45 (CREW’s standing
challenged only on CREW’s inability to vote), while depriving CREW of any
opportunity to supplement its pleadings.
CREW’s allegations are sufficient to establish standing at this stage, but the
supplementary materials confirm (and expand on) what CREW alleged. More thanestablishing AAN’s political committee status, the “nature of the information []withheld” by AAN, Common Cause, 108 F.3d at 417, establishes beyond doubt
AAN’s disclosure would be “help[ful],” CLC, 952 F.3d at 356, and withholding
them has “downstream consequences” on CREW, TransUnion, 141 S. Ct. at 2214.
Those materials show that

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Page 35 of 38. AAN’s actions show it, and its donors, are thequintessential “moneyed interests” of which the public has a right to know.
Citizens United, 558 U.S. at 370.11
Revealing AAN’s activities would do much to “further [CREW’s] efforts to
defend and implement campaign finance reform,” CLC, 952 F.3d at 356, andAAN’s activities demonstrate its information is precisely the type voters need to“evaluate candidates for public office … and evaluate the role that [AAN’s]
financial assistance might play.” CLC, 31 F.4th at 784.
The Court may consider the materials if it deems them necessary to resolve
jurisdiction, and AAN has demonstrated no cause to strike them.
CONCLUSIONCREW has a right to obtain information AAN has unlawfully withheld after
the FEC has shown it is unwilling to enforce the law. A few magic words sprinkled
in a post-hoc rationalization do not and cannot deprive CREW of that right. It is

Though irrelevant, the submissions are not the “confidential internal materials”
of an organization “cleared of wrongdoing,” AFL-CIO v. FEC, 333 F.3d 168, 176–
78 (D.C. Cir. 2003), or those of organizations engaging in no electioneering, cf.
Am. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021). They are morecircumspect than materials typically reviewed in suits assessing politicalcommittee status on the public docket, see, e.g., FEC v. Malenick, 310 F. Supp. 2d230, 235–36 (D.D.C. 2004) (publishing donor communications, financial receipts,
brochures, etc.).
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long past time to permit CREW to bring this case to final judgment and to speak on
matters AAN has worked so many years to keep hidden, in violation of the FECA.
Dated: July 28, 2023
Respectfully submitted,/s/ Stuart McPhail
Stuart C. McPhail (No. 1032529)
smcphail@citizensforethics.org
Adam J. Rappaport (No. 479866)
Citizens for Responsibility and Ethics
in Washington
1331 F Street, N.W., Suite 900
Washington, DC 20004
Telephone: (202) 408-5565
Facsimile: (202) 588-5020

Sathya S. Gosselin (No. 989710)
HAUSFELD LLP
888 16th Street, N.W., Suite 300
Washington, DC 20006
Telephone: (202) 540-7200
Facsimile: (202) 540-7201

Counsel for Citizens for Responsibility andEthics in Washington

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CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of Fed. R. App. P.
32(a)(7)(B)) because, excluding the parts of the document exempted by Fed.
R. App. P. 32(f) and Circuit Rule 32(e)(1):[ X ] this document contains 6,460 words, or[ ] this brief uses a monospaced typeface and contains [state the numberof] lines of text.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:[ X ] this document has been prepared in a proportionally spaced typeface
using Microsoft Word 2016 in 14pt Times New Roman; or[ ] this document has been prepared in a monospaced typeface using [statename and version of word-processing program] with [state number ofcharacters per inch and name of type style].
Dated: July 28, 2023

/s/ Stuart McPhail
Counsel for Appellant

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CERTIFICATE OF SERVICE
I hereby certify that on July 28, 2023, I electronically filed the foregoing
document with the Clerk of Court for the United States Court of Appeals for theDistrict of Columbia Circuit by using the appellate CM/ECF system, thereby
serving all persons required to be served.
/s/ Stuart C. McPhail
Stuart C. McPhail