IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21, 

Plaintiffs, 

 Case No. 1:20-cv-00730 

v. 

 Hon. Christopher R. Cooper 

FEDERAL ELECTION COMMISSION, 

Defendant, 

 

RIGHT TO RISE SUPER PAC, INC., 

Intervenor-Defendant. 

PLAINTIFFS’ RESPONSE IN OPPOSITION TO INTERVENOR-DEFENDANT’S 

MOTION FOR RECONSIDERATION AND/OR CERTIFICATION FOR 

INTERLOCUTORY APPEAL 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Fred Wertheimer (DC Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue N.W. 

Washington, DC 20036 

(202) 355-9600 

Donald J. Simon (DC Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street N.W., Suite 600 

Washington, DC 20005 

(202) 682-0240 

Attorneys for Plaintiffs 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 1 of 25
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TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES .......................................................................................................... ii 

INTRODUCTION ...........................................................................................................................1 

BACKGROUND .............................................................................................................................2 

I. Procedural History ...............................................................................................................2 

II. The Court’s Memorandum Opinion and Order ...................................................................3 

ARGUMENT ...................................................................................................................................3 

I. The Court Should Not Reconsider Its Memorandum Opinion ............................................3 

A. This Court properly applied the 12(b)(1) standard when denying RTR’s motion to 

dismiss for lack of standing ...........................................................................................5 

B. RTR has no basis for its assertion that all testing-the-waters activity at issue here 

was publicly disclosed ...................................................................................................9 

II. The Court Should Not Certify Its Order for Interlocutory Appeal ....................................12

A. RTR fails to establish a substantial ground for difference of opinion about 

Plaintiffs’ informational injury ....................................................................................13 

B. RTR fails to establish that immediate appeal will likely and materially advance 

the ultimate termination of this litigation.....................................................................15 

III. RTR’s Repeated Efforts to Prolong this Litigation Only Underline Plaintiffs’ Distinct 

Standing Based on Organizational Injury and Unlawful FEC Delay ................................16 

CONCLUSION ..............................................................................................................................18 

CERTIFICATE OF SERVICE ......................................................................................................19

 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 2 of 25
iii 

TABLE OF AUTHORITIES

Cases: 

American National Insurance Co. v. FDIC, 642 F.3d 1137 (D.C. Cir. 2011) ............................. 5-6 

APCC Services, Inc. v. AT & T Corporation, 297 F. Supp. 2d 101 (D.D.C. 2003).................12, 13 

Arias v. DynCorp, 856 F. Supp. 2d 46 (D.D.C. 2012) ...................................................................16

Attias v. CareFirst, Inc., No. 15-cv-00882, 2021 WL 311000 (D.D.C. 2021) ................................4 

Avila v. Dailey, 404 F. Supp. 3d 15 (D.D.C. 2019) .........................................................................4 

Biton v. Palestinian Interim Self-Government Authority, 310 F. Supp. 2d 172 (D.D.C. 2004) ......5 

Blumenthal v. Trump, 328 F. Supp. 3d 77 (D.D.C. 2019) .............................................................15

Campaign Legal Center & Democracy 21 v. FEC, 952 F.3d 352 (D.C. Cir. 2020) .....................14 

Campaign Legal Center v. FEC, 245 F. Supp. 3d 119 (D.D.C. Mar. 29, 2017) ...........................14 

Campaign Legal Center v. FEC, No. 19-2336, 2020 WL 7059577 (D.D.C. Dec. 2, 2020) .........13 

Chennareddy v. Dodaro, No. 87-3528, 2010 WL 3025164 (D.D.C. July 22, 2010).....................16

Citizens for Responsibility & Ethics in Washington v. American Action Network, 

410 F. Supp. 3d 1 (D.D.C. 2019) .............................................................................................14

Citizens for Responsibility & Ethics in Washington v. American Action Network, 

415 F. Supp. 3d 143 (D.D.C. 2019) .........................................................................................14 

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)....................................................................12 

Douglas v. D.C. Housing Authority, 306 F.R.D. 1 (D.D.C. 2014) ..............................................4, 9 

Educational Assistance Found. for Descendants of Hungarian Immigrants in the Performing 

Arts, Inc. v. United States, No. 11-1573, 2014 WL 12780253 (D.D.C. Nov. 21, 2014) .........15 

FEC v. Akins, 524 U.S. 11 (1998) ..................................................................................................14

Gonzalez v. Crosby, 545 U.S. 524 (2005)........................................................................................5 

Green v. AFL-CIO, 811 F. Supp. 2d 250 (D.D.C. 2011) .................................................................4 

Hall v. CIA, 437 F.3d 94 (D.C. Cir. 2006) .......................................................................................4 

In re Vitamins Antitrust Litigation, No. 99-197, 2000 WL 673936 

(D.D.C. Jan. 27, 2000) .......................................................................................................12, 15 

Judicial Watch, Inc. v. National Energy Policy Development Group, 

233 F. Supp. 2d 16 (D.D.C. 2002) .....................................................................................13, 16

National Community Reinvestment Coalition v. Accredited Home Lenders Holding Co., 

597 F. Supp. 2d 120 (D.D.C. 2009) .........................................................................................12 

Rann v. Chao, 154 F. Supp. 2d 61 (D.D.C. 2001) ...........................................................................6 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 3 of 25
iv 

Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59 (D.D.C. 2011) ......................................6, 7 

Scolaro v. D.C. Board of Elections & Ethics, 104 F. Supp. 2d 18 (D.D.C. 2000) ..........................6 

Selden v. Airbnb, Inc., No. 16-cv-933, 2016 WL 7373776 (D.D.C. Dec. 19, 2016) ...............12, 13 

Shearill v. Peter N.G. Schwartz Management Co., 325 F.R.D. 28 (D.D.C. 2018) ..........................9 

Stanford v. Potomac Electric Power Co., No. 1:04-1461, 2006 WL 1722329 (D.D.C. 2006) .......9 

Tolson v. United States, 732 F.2d 998 (D.C. Cir. 1984) ................................................................12 

Twelve John Does v. District of Columbia, 841 F.2d 1133 (D.C. Cir. 1988) ..................................5 

Uberoi v. EEOC, 271 F. Supp. 2d 1 (D.D.C. 2002) ........................................................................4 

United States ex rel. Barko v. Halliburton Company, 4 F. Supp. 3d 162 (D.D.C. 2014) ..............16 

United States v. Nixon, 418 U.S. 683 (1974) ...........................................................................13, 14 

United States v. Philip Morris USA Inc., 840 F.3d 844 (D.C. Cir. 2016) ...................................5, 9 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ....................................................................13 

Statutes: 

5 U.S.C. § 552(a)(2) .......................................................................................................................17 

5 U.S.C. § 552(a)(5) .......................................................................................................................17 

28 U.S.C. § 1292(b) .................................................................................................................12, 13 

52 U.S.C. § 30109(a)(4)(B)(ii) ......................................................................................................17 

52 U.S.C. § 30109(a)(8)(A) .........................................................................................................2, 3 

52 U.S.C. § 30109(a)(8)(C) ...........................................................................................................17 

Regulations and Rulemaking Documents: 

11 C.F.R. § 100.72(a).....................................................................................................................10 

11 C.F.R. § 100.72(b) ....................................................................................................................10 

11 C.F.R. § 100.131(b) ..................................................................................................................10 

11 C.F.R. § 101.3 ...........................................................................................................................10 

11 C.F.R. § 111.20(a).....................................................................................................................17 

Fed. R. Civ. P. 60(b) ..............................................................................................................4, 5, 12 

Fed. R. Civ. P. 60(b)(1)................................................................................................................4, 9 

Fed. R. Civ. P. 60(b)(6)......................................................................................................4, 5, 8, 12 

Other Materials: 

@JebBush, Twitter, https://twitter.com/jebbush..............................................................................8 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 4 of 25
v 

81 Fed. Reg. 50702 (Aug. 2, 2016), https://www.fec.gov/resources/cmscontent/documents/notice2016-06.pdf ............................................................................... 16-17 

Alex Isenstadt, Jeb Bush’s $100M May, Politico (May 8, 2015), https://www.politico.com/

story/2015/05/jeb-bush-right-to-rise-super-pac-campaign-117753 ...........................................7 

Ben White, Jeb Bush’s eye-popping event: $100K per ticket, Politico (Feb. 10, 2015), 

https://www.politico.com/story/2015/02/jeb-bush-fundraiser-100k-per-ticket-115086 ............8 

Donald J. Trump for President, Inc., Disbursements for “ttw,” FEC, https://www.fec.gov/

data/disbursements/?data_type=processed&committee_id=C00580100&disbursement_

description=ttw (last visited Mar. 19, 2021) ............................................................................10 

Facebook, A Note from Jeb Bush (Dec. 16, 2014), https://www.facebook.com/notes/jebbush/a-note-from-jebbush/619074134888300 ...........................................................................8 

FEC Adv. Op. 1981-32 (Oct. 2, 1981), https://www.fec.gov/files/legal/aos/1981-32/1981-

32.pdf .......................................................................................................................................10 

Jeb 2016 Inc., 2015 July Quarterly Report, FEC Form 3P (filed July 15, 2015; amended Jan. 

31, 2016), https://docquery.fec.gov/pdf/580/201601319005221580/20160131

9005221580.pdf ...........................................................................................................10, 11, 12 

Jeb 2016, Inc., Disbursements for “ttw” or “testing the waters,” 2015-16, FEC, 

https://www.fec.gov/data/disbursements/?data_type=processed&committee_id=C005794

58&two_year_transaction_period=2016&disbursement_description=testing+the+waters

&disbursement_description=ttw (last visited Mar. 18, 2021) ...........................................11, 12 

Jeb Bush Remarks at CPAC (C-SPAN television broadcast Feb. 27, 2015), https://www.cspan.org/video/?324558-16/governor-jeb-bush-r-fl-remarks-cpac-2015 ..................................8 

Jim Rutenberg, The Next Era of Campaign-Finance Craziness is Already Underway, N.Y. 

Times (Apr. 21, 2015), https://www.nytimes.com/2015/04/21/magazine/the-next-era-ofcampaign-finance-craziness-is-already-underway.html ............................................................7 

Jose A. DelReal, Jeb Bush forms PAC to explore presidential run, Wash. Post (Dec. 16, 

2014), https://www.washingtonpost.com/news/post-politics/wp/2014/12/16/jeb-bushforms-pac-to-explore-presidential-run/ ......................................................................................8 

Matea Gold, Jeb Bush super PAC juggernaut heads to California next week, Wash. Post 

(Mar. 23, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/03/23/jebbush-super-pac-juggernaut-heads-to-california-next-week/ ......................................................7 

Michael Barbaro, Jeb Bush’s Team Plots Vast Effort to Win Florida, N.Y. Times (Mar. 21, 

2015), https://www.nytimes.com/2015/03/22/us/politics/jeb-bushs-team-plots-vast-effortto-win-florida.html .....................................................................................................................7 

Michael C. Bender & Jonathan Allen, Bush Team Sets Bold Fundraising Goal: $100 Million 

in Three Months, Bloomberg Politics (Jan. 9, 2015), https://www.bloomberg.com/news/

articles/2015-01-09/bush-team-sets-bold-fundraising-goal-100-million-in-three-months ........7 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 5 of 25
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Patrick Svitek, George P. Bush to help raise cash for dad’s super PAC, The Texas Tribune 

(Mar. 9, 2015), https://www.texastribune.org/2015/03/09/george-p-bush-attendfundraiser-dads-super-pac/ .........................................................................................................8 

Paul Blumenthal, Jeb Bush Messes Up Charade of Not Running for President, Huff. Post 

(May 13, 2015), https://www.huffpost.com/entry/jeb-bush-president_n_7278624 ............7, 16 

Press Release, Republican Party of Iowa, Iowa GOP to Host Star-Studded Lincoln Dinner on 

May 16 (Mar. 26, 2015), http://www.iowagop.org/2015/03/26/iowa-gop-to-host-starstudded-lincoln-dinner-on-may-16/ (archived version available at https://web.archive.org/

web/20150331230503/http://www.iowagop.org:80/2015/03/26/iowa-gop-to-host-starstudded-lincoln-dinner-on-may-16) ...........................................................................................8 

Robert Costa, Jeb Bush and his allies form leadership PAC and super PAC, both dubbed 

Right to Rise, Wash. Post (Jan. 6, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/01/06/jeb-bush-forms-new-pac-right-to-rise/ ................................................7 

Thomas Beaumont, Bush preparing to delegate many campaign tasks to super PAC, 

Associated Press (Apr. 21, 2015), https://www.businessinsider.com/jeb-bush-preparingto-delegate-campaign-tasks-to-a-super-pac-2015-4 ..................................................................7 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 6 of 25
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INTRODUCTION 

Plaintiffs are before this Court to remedy the Federal Election Commission’s unlawful 

delay in acting on their two 2015 administrative complaints, which collectively allege that John 

Ellis (“Jeb”) Bush and Intervenor-Defendant Right to Rise Super PAC (“RTR”) violated the 

Federal Election Campaign Act (“FECA”) during Bush’s 2015-16 bid for the presidency. 

Relying on credible public information and reporting, the administrative complaints 

establish that Bush had been “testing the waters” and/or actively campaigning long before he 

formally announced his candidacy on June 15, 2015. As early as December 16, 2014, Bush had 

“decided to actively explore the possibility of running for President of the United States.” March 

2015 Admin. Compl., ECF No. 1-2 ¶ 4 (quoting Bush). Shortly thereafter, Bush and his associates 

formed RTR, an “independent” super PAC, which he used to fuel a months-long, multi-milliondollar fundraising blitz across the country in support of his candidacy. Id. ¶¶ 10-11, 13; May 2015 

Admin. Compl., ECF No. 1-1 ¶¶ 20-23. Bush also engaged in activities typical of candidates 

during the early months of 2015, like traveling to early primary states to meet with potential donors 

and staff, speaking at the Conservative Political Action Conference (where he functionally 

acknowledged that he was testing the waters), attending the Iowa agriculture summit, and 

committing to speak at the Iowa Republican Party’s Lincoln dinner. ECF No. 1-2 ¶¶ 12, 17-19. In 

a video released on May 13, 2015, Bush even acknowledged that he was running for president and 

then “tried to take it back.” ECF No. 1-1 ¶ 4. Despite all of these actions, however, Bush did not 

declare his candidacy until June 2015 and disclosed only a small fraction of his prior activities as 

testing-the-waters spending. 

On March 31 and May 27, 2015, plaintiffs filed their 2015 administrative complaints with 

the Federal Election Commission (“FEC”) detailing apparent violations of FECA’s candidate 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 7 of 25
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disclosure and registration requirements, testing-the-waters restrictions, contribution limits, and 

soft-money prohibitions. More than five years later, the FEC still has not resolved or taken any 

public action on them. Plaintiffs filed suit on March 13, 2020 alleging the FEC’s failure to act is 

contrary to law under 52 U.S.C. § 30109(a)(8)(A), FECA’s statutory remedy for unlawful delay. 

The FEC has failed to appear in this case. RTR, seeking only to prolong inaction on this 

matter, intervened and filed a motion to dismiss challenging plaintiffs’ standing under Rule 

12(b)(1). After this Court denied that motion in part, RTR continued its delay campaign by filing 

the instant Motion for Reconsideration and/or Certification for Interlocutory Appeal. 

The Court should reject RTR’s motion because RTR fails to satisfy the heavy burdens 

required for reconsideration and certification for interlocutory appeal. First, regarding the motion 

to reconsider, RTR does not demonstrate any of the limited circumstances under which such a 

motion may be granted. Instead, RTR incorrectly claims that this Court (1) applied the wrong 

standard in assessing RTR’s motion to dismiss and (2) should reconsider its ruling based on 

disputed facts that were included in RTR’s previous briefing and that go to the merits of plaintiffs’ 

underlying administrative complaints. Second, regarding the motion for certification for 

interlocutory appeal, RTR fails to show that there is a substantial ground for difference of opinion 

meriting appellate review. Moreover, rather than materially advancing the ultimate termination of 

this litigation, allowing immediate appeal will only prolong the proceedings. At bottom, RTR 

confuses its discontent with this Court’s decision with the requisite grounds for relief. This Court 

should decline RTR’s request to reconsider or to certify an interlocutory appeal. 

BACKGROUND 

I. Procedural History 

Plaintiffs Campaign Legal Center (“CLC”) and Democracy 21 filed their two 

administrative complaints against Bush and RTR on March 31, 2015 and May 27, 2015. The 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 8 of 25
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complaints collectively allege that Bush failed to comply with applicable FECA contribution 

restrictions and disclosure requirements, both before Bush formally announced his candidacy on 

June 15, 2015 and for the duration of his official campaign. Compl. ¶¶ 4-5. In particular, the March 

2015 complaint detailed the activities in which Bush, his agents, and the super PAC were 

reportedly engaged, and alleged that this provided reason to believe Bush had been “testing the 

waters” and then engaging in an active campaign before he formally announced his candidacy on 

June 15, 2015. See ECF No. 1-2. The May 2015 complaint detailed the active role that Bush and 

his associates played in creating RTR and directing its staffing and operations in violation of 

FECA’s soft-money prohibitions. See ECF No. 1-1. 

To date, the Commission has not resolved the complaints—or, as far as plaintiffs are aware, 

taken any action on them beyond assigning them a MUR number. Compl. ¶ 33. Under 52 U.S.C. 

§ 30109(a)(8)(A), the FEC had 120 days to act before plaintiffs could file suit for unlawful delay. 

The FEC has now failed to act for what equates to more than seventeen 120-day periods since the 

second administrative complaint was filed. Plaintiffs filed this lawsuit on March 13, 2020 seeking 

injunctive and declaratory relief to compel the FEC to act on its two complaints. After intervening, 

RTR filed a Motion to Dismiss on June 8, 2020. 

II. The Court’s Memorandum Opinion and Order 

On February 19, 2021, this Court issued a Memorandum Opinion and Order granting 

RTR’s motion to dismiss plaintiffs’ APA claim, but denying RTR’s motion to dismiss their FECA 

claim. ECF No. 17 (“Mem. Op.”). In its Memorandum Opinion, the Court held that “[t]o the extent 

that Bush was either a de-facto candidate or testing the waters at some point prior to June 2015, 

then plaintiffs have alleged an informational injury because further disclosures would be required.” 

Id. at 12. The Court focused, however, on plaintiffs’ testing-the-waters allegations, reasoning that 

such reporting would also encompass deficiencies while Bush was a de facto candidate. Finding 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 9 of 25
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these informational injuries sufficient to maintain its jurisdiction, the Court did not decide whether 

plaintiffs also have standing based on organizational injury or injury from delay. See Pls.’ Opp’n 

to Int.’s Mot. to Dismiss, ECF No. 13 at 37-51. On March 5, 2021, Intervenor filed a Motion for 

Reconsideration and/or Certification for Interlocutory Appeal. 

ARGUMENT 

I. The Court Should Not Reconsider Its Memorandum Opinion. 

Rule 60(b) permits a court to grant relief from an order based only on certain enumerated 

grounds, which the movant must specifically invoke and prove in its motion. See Fed. R. Civ. P. 

60(b); Green v. AFL-CIO, 811 F. Supp. 2d 250, 254 (D.D.C. 2011) (“It is well-settled that the 

party seeking relief from a judgment bears the burden of demonstrating that he satisfies the 

perquisites for such relief.”). This is a heavy burden because “Rule 60(b) motions are granted in 

very limited circumstances, requiring a showing of ‘fraud, mistake, extraordinary circumstances, 

or other enumerated situations.’” Attias v. CareFirst, Inc., No. 15-cv-00882, 2021 WL 311000 at 

*5 (D.D.C. 2021) (quoting Uberoi v. EEOC, 271 F. Supp. 2d 1, 3 (D.D.C. 2002)). Intervenor fails 

to meet this burden in seeking reconsideration on grounds of “mistake” under Rule 60(b)(1) and 

“any other reason justifying relief” under Rule 60(b)(6). 

“Relief under Rule 60(b)(1) motions is rare.” Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006). 

The movant must show that the Court’s order contains clear or “obvious error.” Fed. R. Civ. P. 

60(b)(1); Douglas v. D.C. Hous. Auth., 306 F.R.D. 1, 5 (D.D.C. 2014). Mere “disagreement with 

a district court’s legal reasoning or analysis is rarely, if ever, a basis for relief under Rule 60(b)(1).” 

Avila v. Dailey, 404 F. Supp. 3d 15, 22-23 (D.D.C. 2019) (quotation omitted). 

And relief under Rule 60(b)(6) is “‘even more rare’ than relief under Rule 60(b)(1).” Id. at 

27 (citation omitted). A Rule 60(b)(6) motion is “not simply an opportunity to reargue facts and 

theories upon which a court has already ruled,” and it cannot simply reiterate one of the grounds 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 10 of 25
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for relief under clauses (b)(1) through (b)(5). Id. (internal quotation marks omitted). As the 

Supreme Court has held, Rule 60(b)(6) justifies relief “only in ‘extraordinary circumstances.’” Id.

(quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). This Circuit has further instructed that it 

“should be only sparingly used.” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 

(D.C. Cir. 1988); see also United States v. Philip Morris USA Inc., 840 F.3d 844, 852 (D.C. Cir. 

2016) (“Extraordinary circumstances is a high bar.”). 

In support of its 60(b) motion, RTR contends that this Court applied the wrong standard of 

review in assessing its motion to dismiss and that, as a factual matter, RTR and Bush disclosed all 

of the contributions and spending at issue in this case. Neither argument has merit under any 

standard, nor can either clear the “high bar” necessary to grant relief. 

A. This Court properly applied the 12(b)(1) standard when denying RTR’s motion 

to dismiss for lack of standing. 

RTR suggests that this Court acted as a “casual observer,” making the careless mistake of 

applying the 12(b)(6) standard in place of the proper standard under a 12(b)(1) motion to dismiss 

for lack of standing. Int.’s Mot. for Reconsideration, ECF No. 19 at 14. This suggestion, however, 

is completely at odds with the Court’s Memorandum Opinion, in which the Court clearly identified 

and applied the proper legal standard. See Mem. Op. at 7-8, 10-11. Indeed, this Court identified 

the 12(b)(6) standard and also stated that under the more exacting 12(b)(1) standard, “plaintiffs 

must show ‘by a preponderance of the evidence that the Court has subject matter jurisdiction to 

hear [the] case.’” Id. at 7-8 (quoting Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 

172, 176 (D.D.C. 2004)). The Court also properly noted that in considering 12(b)(1) motions, 

courts must nonetheless “assume the truth of all material factual allegations in the complaint and 

construe the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be 

derived from the facts alleged.” Id. at 7 (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 11 of 25
6 

(D.C. Cir. 2011)); accord Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001) (“In reviewing a 

motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court must accept 

all the complaint’s well-pled factual allegations as true and draw all reasonable inferences in the 

plaintiff’s favor.”). 

Thus, the proper standard for 12(b)(1) motions requires assessing whether the plaintiff has 

satisfied Article III by a preponderance of evidence including all facts alleged in their complaint 

and the reasonable inferences derived from those facts. Indeed, even in Schmidt v. U.S. Capitol 

Police Bd., 826 F. Supp. 2d 59, 70 (D.D.C. 2011)—the very case RTR cites as support for its 

supposedly stricter 12(b)(1) standard—the court recognized that a proper 12(b)(1) analysis means 

“drawing all reasonable inferences in favor of the plaintiff.”1

 While a court may “consider such 

materials outside the pleadings as it deems appropriate to resolve the question whether it has 

jurisdiction in the case,” it is under no obligation to do so where, as here, such consideration is 

neither necessary nor appropriate. Id. at 65 (quoting Scolaro v. D.C. Bd. of Elections & Ethics, 104 

F. Supp. 2d 18, 22 (D.D.C. 2000)). 

As this Court properly held, plaintiffs’ factual allegations and the inferences derived from 

those facts are sufficient to show by a preponderance of the evidence that the plaintiffs have 

standing, and therefore, that the Court has jurisdiction over this matter. Plaintiffs’ primary factual 

allegations at issue concern “[w]hether Bush did, in fact, begin testing the waters in January 2015,” 

Mem. Op. at 11, and whether Bush’s campaign failed to report all of his testing-the-waters 

spending. The inferences required to show that Bush was testing the waters prior to June 2015 and 

that his reporting was not sufficient to cover all those activities are not, as RTR claims, “inferences 

 

1

 In its citation to Lujan v. Defenders of Wildlife, RTR mistakenly attributed a quotation from 

the U.S. District Court, D.C. in Schmidt to the U.S. Supreme Court in Lujan. ECF No. 19 at 14. 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 12 of 25
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unsupported by the facts.” ECF No. 19 at 14 (quoting Schmidt, 826 F. Supp. 2d at 65). Rather, 

plaintiffs’ factual allegation that Bush engaged in more testing-the-waters activities prior to June 

2015 than the campaign reported is not only specifically alleged in their complaint but also 

supported by the mountain of credible public reporting cited in their administrative complaints.

See infra Part I.B. 

RTR dismisses these reports as “nothing more than beltway gossip columns,” ECF No. 19 

at 15, a characterization that might receive some pushback from the Pulitzer-prize winning 

newsrooms at The Washington Post,

2 The New York Times,3 The Huffington Post,4 Bloomberg,5

Politico,

6

 and the Associated Press,

7 and presumably also from dedicated and decidedly non-

 

2

 See, e.g., ECF No. 1-2 ¶¶ 5, 11 (citing Robert Costa, Jeb Bush and his allies form leadership 

PAC and super PAC, both dubbed Right to Rise, Wash. Post (Jan. 6, 2015), https://www.

washingtonpost.com/news/post-politics/wp/2015/01/06/jeb-bush-forms-new-pac-right-to-rise; 

Matea Gold, Jeb Bush super PAC juggernaut heads to California next week, Wash. Post (Mar. 23, 

2015), https://www.washingtonpost.com/news/post-politics/wp/2015/03/23/jeb-bush-super-pacjuggernaut-heads-to-california-next-week). 

3

 See, e.g., ECF No. 1-2 ¶ 20 (citing Michael Barbaro, Jeb Bush’s Team Plots Vast Effort to Win 

Florida, N.Y. Times (Mar. 21, 2015), https://www.nytimes.com/2015/03/22/us/politics/jeb-bushsteam-plots-vast-effort-to-win-florida.html); ECF No. 1-1 ¶ 12 (citing Jim Rutenberg, The Next Era 

of Campaign-Finance Craziness is Already Underway, N.Y. Times (Apr. 21, 2015), https://www.

nytimes.com/2015/04/21/magazine/the-next-era-of-campaign-finance-craziness-is-already-under

way.html). 

4

 See ECF No. 1-1 ¶ 12 (citing Paul Blumenthal, Jeb Bush Messes Up Charade of Not Running 

for President, Huff. Post (May 13, 2015), https://www.huffpost.com/entry/jeb-bush-president_n_

7278624). 

5

 See ECF No. 1-2 ¶ 7 (citing Michael C. Bender & Jonathan Allen, Bush Team Sets Bold 

Fundraising Goal: $100 Million in Three Months, Bloomberg Politics (Jan. 9, 2015), https://www.

bloomberg.com/news/articles/2015-01-09/bush-team-sets-bold-fundraising-goal-100-million-inthree-months). 

6

 See, e.g., ECF No. 1-1 ¶¶ 11, 16, 21, 23, 25 (citing Ben White, Jeb’s eye-popping event: $100K 

per ticket, Politico (Feb. 10, 2015), https://www.politico.com/story/2015/02/jeb-bush-fundraiser100k-per-ticket-115086; Alex Isenstadt, Jeb Bush’s $100M May, Politico (May 8, 2015), https://

www.politico.com/story/2015/05/jeb-bush-right-to-rise-super-pac-campaign-117753). 

7

 See ECF No. 1-1 ¶ 12 (citing Thomas Beaumont, Bush is preparing to delegate many of his 

campaign tasks to a super PAC that can raise unlimited amounts of cash, Associated Press (Apr. 

21, 2015), https://www.miamiherald.com/news/nation-world/national/article19123962.html). 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 13 of 25
8 

“beltway” reporters at The Texas Tribune.

8

 These reports were brimming with extensive sourcing 

and evidence-based reporting about Bush’s and RTR’s activities during the period in question; in 

some cases, they were reporting on direct statements from Bush himself.

9

 RTR further ignores the 

many other types of sources that plaintiffs’ two administrative complaints cited in support of their 

allegations, including Bush’s own Twitter feed,10 his Facebook page,11 a press release from the 

Iowa Republican Party,12 a Right to Rise donation page,13 and a video of Bush’s remarks at the 

February 2015 Conservative Political Action Conference.14

By considering the allegations in plaintiffs’ complaint, as well as reasonable inferences 

derived from those allegations and from facts in the administrative complaints, this Court properly 

applied the 12(b)(1) standard to find that plaintiffs have established standing by a preponderance 

of the evidence. RTR’s false claim that the Court applied the wrong standard is little more than an 

attempt to mask its dissatisfaction with the Court’s application of the proper standard. Because the 

 

8

 See ECF No. 1-1 ¶ 26 (citing Patrick Svitek, George P. Bush to Help Raise Cash for Dad’s 

Super PAC, Tex. Tribune (Mar. 9, 2015), https://www.texastribune.org/2015/03/09/george-pbush-attend-fundraiser-dads-super-pac). 

9

 See, e.g., ECF No. 1-2 ¶ 4 (citing Jose A. DelReal, Jeb Bush forms PAC to explore presidential 

run, Wash. Post (Dec. 16, 2014), https://www.washingtonpost.com/news/post-politics/wp/2014/

12/16/jeb-bush-forms-pac-to-explore-presidential-run). 

10 See ECF No. 1-2 ¶ 10 (citing @JebBush, Twitter, https://twitter.com/jebbush). 

11 See, e.g., ECF No. 1-2 ¶ 4 (citing Facebook, A Note from Jeb Bush (Dec. 16, 2014), https://

www.facebook.com/notes/jeb-bush/a-note-from-jebbush/619074134888300). 

12 See ECF No. 1-2 ¶ 19 (citing Press Release, Republican Party of Iowa, Iowa GOP to Host StarStudded Lincoln Dinner on May 16 (Mar. 26, 2015), http://www.iowagop.org/2015/03/26/iowagop-to-host-star-studded-lincoln-dinner-on-may-16) (archived version available at https://web.

archive.org/web/20150331230503/http://www.iowagop.org:80/2015/03/26/iowa-gop-to-hoststar-studded-lincoln-dinner-on-may-16). 

13 See ECF No. 1-2 ¶ 9 (citing Right to Rise Super PAC, Run Jeb Run Fund Contribution Page, 

https://contribute.righttorisesuperpac.org/run-jeb-run-fund/ (last visited Mar. 27, 2015)). 

14 See ECF No. 1-2 ¶ 17 (citing Jeb Bush Remarks at CPAC (C-SPAN television broadcast Feb. 

27, 2015), https://www.c-span.org/video/?324558-16/governor-jeb-bush-r-fl-remarks-cpac2015). 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 14 of 25
9 

Court committed no mistake or “obvious error” in applying the 12(b)(1) standard, it should reject 

RTR’s motion to reconsider based on Rule 60(b)(1). See Fed. R. Civ. Pro. 60(b)(1); Douglas, 306 

F.R.D. at 5. 

B. RTR has no basis for its assertion that all testing the waters activity at issue here 

was publicly disclosed. 

RTR’s 60(b)(6) claim rests on the premise that the Court’s Memorandum Order was “based 

on a ‘fundamental misconception of the facts.’” ECF No. 19 at 15 (quoting Stanford v. Potomac 

Elec. Power Co., No. 1:04-1461, 2006 WL 1722329 at *3 (D.D.C. 2006)). RTR asserts that this 

Court’s ruling was incorrect because “[a]ll the information that must be disclosed under FECA 

was timely reported by the Bush campaign, and it is all publicly available in campaign finance 

reports on FEC.gov.” Id. at 16 (emphasis in original). This bare assertion, even if it were correct, 

is insufficient to reach the “high bar” of an extraordinary circumstance that would warrant relief 

under Rule 60(b)(6). Shearill v. Peter N.G. Schwartz Mgmt. Co., 325 F.R.D. 28 (D.D.C. 2018)

(quoting Philip Morris USA Inc., 840 F.3d at 852). 

RTR’s claim that the Bush campaign reported all testing-the-waters expenditures is just 

that—an unsubstantiated factual claim. Unless every single action between RTR and Bush’s 

campaign was coordinated, an allegation that RTR has “vehemently den[ied],” Int.-Def. Mot. to 

Dismiss, ECF No. 11 at 19, RTR has no way of knowing about the full scope of testing-the-waters 

spending by Bush and his campaign. RTR offers no evidence for its claim that Bush fully reported 

his testing-the-waters activity, and in fact, RTR cannot validate this claim, because this 

information is uniquely within the knowledge of Bush and his campaign. Finally, as discussed 

above, in ruling on a motion to dismiss for lack of standing, the Court must grant plaintiffs the 

benefit of all inferences that can be derived from their factual allegations. Thus, this Court properly 

found that RTR’s assertion that FECA required no further disclosures from Bush “is premature at 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 15 of 25
10 

this stage in the litigation” and “a merits issue.” Mem. Op. at 10-11. 

RTR nevertheless characterizes its own competing factual allegation that “Governor 

Bush’s campaign disclosed all his testing-the-waters activities” from January 2015 as an 

“unrebutted premise.” ECF No. 19 at 9, 16.15 Once again, RTR’s only “support” for this notion is 

that Bush reported some testing-the-waters activity—which plaintiffs did not deny. See Pls.’ Opp’n 

to Mot. to Dismiss, ECF No. 13 at 28 n.6 (noting 50 “ttw” or “testing-the-waters” disbursements);16

RTR Reply Supp. Mot. to Dismiss, ECF No. 15 at 10-11 (noting $388k in ttw disbursements). 

RTR now reasserts, without citation, that Bush did report “$386,020.15 of testing-the-waters 

 

15 It is unusual that after denying that Bush was engaged in any testing-the-waters activities 

before June 2015, RTR is now mounting the defense that Bush instead properly reported testingthe-waters activities dating back to January 2015. See Mem. Op. at 11 (“Right to Rise strenuously 

denies that Bush was testing the waters prior to June 2015.”) (citing Int.’s Mot. to Dismiss). Indeed, 

unless RTR is confirming that (1) Bush became a candidate as of January 2015 and (2) RTR has 

this information because it was operating as Bush’s alter ego and de facto campaign committee, it 

is unclear on what basis RTR can claim to know the full extent of his campaign activity in that 

period. If RTR possesses admissible and persuasive insider knowledge sufficient to rebut the 

overwhelming objective indicia that Bush had decided to become a candidate long before his 

formal announcement, see 11 C.F.R. §§ 100.72(b); 100.131(b); FEC Adv. Op. 1981-32 (Oct. 2, 

1981), it is free to present that evidence here for the Court’s consideration. 

16 Plaintiffs note that there is some inconsistency in how the campaign dated Bush’s reported 

testing-the-waters activities. Cf. 11 CFR §§ 100.72(a), 100.131, 101.3. Of the 50 testing-the-waters 

disbursements the campaign disclosed, 47 were reported as in-kind contributions from Bush, 

meaning they were disclosed both as receipts and as disbursements; the campaign coded those 

transactions for June 5, 2015. Review of the notes for each such transaction as itemized on the 

disbursement side of the report, however, indicates different dates for the underlying testing-thewaters transactions, some dating back as far as May 2014. See Jeb 2016 Inc., 2015 July Quarterly 

Report, FEC Form 3P at 1675-90 (filed July 15, 2015; amended Jan. 31, 2016), https://docquery.

fec.gov/pdf/580/201601319005221580/201601319005221580.pdf. 

 Whether this means that Bush would acknowledge, if investigated by the FEC, that he began 

testing the waters as early as mid-2014 is unknowable given that he is not a party to this litigation 

and RTR is not privy to this information. But this fact about the duration of Bush’s “pre-candidacy” 

only drives home how much reportable activity has necessarily gone undisclosed. Compare 

Donald J. Trump for President, Inc., Disbursements for “ttw,” FEC, https://www.fec.gov/data/

disbursements/?data_type=processed&committee_id=C00580100&disbursement_description=

ttw (last visited Mar. 19, 2021) (itemizing testing-the-waters disbursements by Trump 2016 

campaign in the months before his June 2015 announcement). 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 16 of 25
11 

activity for the period January 2015 through June 2015,” ECF No. 19 at 14-15, and this accounts 

for “all [of his] testing-the-waters activities.” Id. at 9. As explained above, plaintiffs did rebut this 

“premise”—by providing the FEC and this Court with extensive evidence that Bush failed to 

disclose all of his reportable receipts and expenditures for the period preceding his official 

campaign announcement, whether as testing-the-waters spending or otherwise. See ECF No. 1-1 

at 3-4, 10-13; ECF No. 1-2 at 3-9, 15-16; ECF No. 13 at 18-21. 

The dispute between the parties is not whether Bush’s campaign reported some portion of 

his testing-the-waters spending—plaintiffs already acknowledged this was the case—but whether 

this reporting was remotely complete or accurate. Given the factual record here, plaintiffs maintain 

that the existing reporting could not possibly have captured the full extent of Bush’s campaign 

travel or fundraising in the period before his official announcement. For example, despite Bush’s 

extensive travel for fundraising and campaign-styled events that public reports repeatedly 

documented prior to his official declaration of candidacy,17 his campaign reported only $1,089 for 

“in-kind (ttw): travel/airfare/lodging.”18 All of Bush’s other disclosed testing-the-waters 

disbursements were described as paying for some kind of professional “consulting,”19 and indeed, 

most of the transactions were in 2014. Looking just at travel, then, Bush demonstrably failed to 

disclose all of his reportable spending. RTR’s presentation of its contrary view of the facts is 

 

17 See ECF 1-1 ¶¶ 20-23; ECF 1-2 ¶¶ 10-11. 

18 Jeb 2016 Inc., 2015 July Quarterly Report (amended), supra note 16, at 1688; see also Jeb 

2016, Inc., Disbursements for “ttw” or “testing the waters,” 2015-16, FEC, https://www.fec.gov/

data/disbursements/?data_type=processed&committee_id=C00579458&two_year_transaction_

period=2016&disbursement_description=testing+the+waters&disbursement_description=ttw 

(last visited Mar. 18, 2021) (showing 50 total disbursement entries described as “ttw” or “testing 

the waters,” and only one such disbursement specified as travel-related). 

19 Jeb 2016 Inc., 2015 July Quarterly Report (amended), supra note 16, at 1675-90; see also Jeb 

2016, Inc., Disbursements for “ttw” or “testing the waters,” 2015-16, supra note 18 (showing 49 

of 50 disbursement entries described as paying for some form of “consulting”).

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 17 of 25
12 

refuted by the record, and certainly does not rise to the level of “extraordinary circumstances” 

needed to succeed on a 60(b)(6) motion. 

II. The Court Should Not Certify Its Order for Interlocutory Appeal. 

This Court should also deny RTR’s motion for interlocutory appeal. “Although courts have 

discretion to certify an issue for interlocutory appeal, interlocutory appeals are rarely allowed.” 

Nat’l Cmty. Reinvestment Coal. v. Accredited Home Lenders Holding Co., 597 F. Supp. 2d 120, 

122 (D.D.C. 2009) (internal quotation marks omitted). This is because the “law is clear that 

certification under § 1292(b) is reserved for truly exceptional cases.” In re Vitamins Antitrust 

Litig., No. 99-197, 2000 WL 673936 at *2 (D.D.C. Jan. 27, 2000) (citing Tolson v. United States, 

732 F.2d 998, 1002 (D.C. Cir. 1984)); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 

(1978) (only “exceptional circumstances justify a departure from the basic policy of postponing 

appellate review until after the entry of final judgment”); Selden v. Airbnb, Inc., No. 16-cv-933, 

2016 WL 7373776 at *1 (D.D.C. Dec. 19, 2016) (same).20

A court may certify an order for interlocutory appeal only if it first determines that the 

moving party has shown that a nonfinal order: “[1] involves a controlling question of law [2] as to 

which there is substantial ground for difference of opinion and that [3] an immediate appeal from 

the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); 

see also Citizens for Responsibility & Ethics in Washington v. Am. Action Network, 415 F. Supp. 

3d 143, 144-45 (D.D.C. 2019) (“AAN”). 

Section 1292(b) thus imposes a “heavy burden,” Selden, 2016 WL 7373776 at *1, on the 

moving party if they are “to overcome the ‘strong congressional policy against piecemeal reviews, 

 

20 RTR insists that “Section 1292(b) is not limited by its language to ‘exceptional cases.’” ECF 

No. 19 at 18-19. But RTR does not cite a single case to support its claim, let alone engage with the 

overwhelming authority in this circuit affirming the opposite. 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 18 of 25
13 

and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.’” 

Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 233 F. Supp. 2d 16, 20 (D.D.C. 2002) 

(quoting United States v. Nixon, 418 U.S. 683, 690 (1974)); see also Coopers & Lybrand, 437 U.S. 

at 475 (same); APCC Servs., Inc. v. AT&T Corp., 297 F. Supp. 2d 101, 104 (D.D.C. 2003) (same). 

RTR does not meet its heavy burden. The only issue for which RTR seeks immediate 

appeal is this Court’s ruling on plaintiffs’ standing and informational injury. While standing 

necessarily “involves a controlling question of law,” see, e.g., APCC Servs., 297 F. Supp. 2d at 

96-97, RTR fails to show either that there is substantial ground for difference of opinion about 

plaintiffs’ informational injury or that an order granting appeal will likely and materially advance 

the ultimate termination of this litigation. Plaintiffs therefore respectfully request that the Court 

deny certification for interlocutory appeal and allow this case to proceed to the merits. 

A. RTR fails to establish a substantial ground for difference of opinion about 

plaintiffs’ informational injury. 

To establish a substantial ground for difference of opinion, the movant must point to a 

difference existing in “controlling authority.” Judicial Watch, 233 F. Supp. 2d at 22. RTR purports 

to do that, stating that “other courts in this District and Circuit [] have rejected the notion that 

plaintiffs have a cognizable legal interest in legal determinations.” ECF No. 19 at 20 (citing CLC 

v. FEC, No. 19-cv-2336, 2020 WL 7059577 at *9 (D.D.C. Dec. 2, 2020); Wertheimer v. FEC, 268 

F.3d 1070, 1075 (D.C. Cir. 2001)). But, as in its Motion to Dismiss, RTR misconstrues plaintiffs’ 

informational injury. Consequently, the only two authorities to which RTR cites are inapposite. 

These cases concern the right to determine whether already disclosed expenditures are 

coordinated, not the right to receive undisclosed factual information about campaign or testingthe-waters spending. See Wertheimer, 268 F.3d at 1074-75 (“[A]ppellants[] . . . did not dispute 

that all political parties currently report all disbursements or that each transaction appellants allege 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 19 of 25
14 

is illegal is reported in some form.”); CLC, 2020 WL 7059577 at *9 (emphasizing that the FEC’s 

“failure to investigate confers standing . . . if the sought-after information would uncover 

nonpublic information that the plaintiffs have a cognizable interest in obtaining”).21

“‘The law is settled that a denial of access to information qualifies as an injury in fact where 

a statute (on the claimant’s reading) requires that the information be publicly disclosed and there 

is no reason to doubt their claim that the information would help them.’” CLC & Democracy 21 v. 

FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam) (emphasis added) (citation omitted); see 

also CREW v. AAN, 410 F. Supp. 3d 1, 12 (D.D.C. 2019) (“The Supreme Court has long recognized 

that FECA creates an informational right—the right to know who is spending money to influence 

elections, how much they are spending, and when they are spending it.”) (citing FEC v. Akins, 524 

U.S. 11, 24-25 (1998)). Here, plaintiffs allege that they have been deprived of months of 

information about Jeb Bush’s testing-the-waters and/or candidate activities and RTR’s funding of 

them—information that is statutorily required to be disclosed and that would be helpful to 

plaintiffs’ organizational missions and activities. See ECF No. 13 at 35-37, 41-44, 46-51; Fischer 

Decl., ECF No. 13-1 at 2-13; Wertheimer Decl., ECF No. 13-2 at 2-5. These allegations and the 

ample evidence provided to support them are enough to constitute an informational injury 

sufficient for standing, as this Court recognized. See Mem. Op. at 10-11; accord AAN, 415 F. Supp. 

3d at 145-46; CLC v. FEC, 245 F. Supp. 3d 119, 127 (D.D.C. 2017). 

Still, RTR argues that “all [] Plaintiffs stand to gain” is a legal determination. ECF No. 19 

at 20. But this is just a circular recasting of their earlier argument that plaintiffs have not been 

 

21 RTR also contends that this Court’s analysis “conflicts with [these] decisions.” ECF No. 19 at 

20. The decisions in Wertheimer and related cases were indeed the Court’s primary basis for 

concluding that plaintiffs did not have informational standing based on claims of undisclosed 

coordinated spending. See Mem. Op. at 21. Plaintiffs respectfully disagree with the Court’s 

expansive reading of Wertheimer, and preserve that issue for potential future appeal. 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 20 of 25
15 

deprived of any information because RTR, Bush, and the Bush campaign fully complied with 

FECA’s disclosure requirements—and thus, plaintiffs stand to gain only legal conclusions about 

when Bush’s testing-the-waters activities (and candidacy) officially began. See ECF No. 11 at 17-

19. The Court recognized rightly that this argument depends on when “Bush did, in fact, begin 

testing the waters” (or became a candidate), which “is a merits issue,” not a question of standing. 

Mem. Op. at 11. 

In sum, RTR’s argument is not grounded in precedent establishing a difference of opinion 

about plaintiffs’ standing; rather, it is premised simply on RTR’s disagreement with the Court’s 

ruling. Such disagreement does not warrant interlocutory appeal. See Judicial Watch, 223 F. Supp. 

2d at 20 (“Mere disagreement, even if vehement, with a court’s ruling does not establish a 

substantial ground for difference of opinion sufficient to satisfy the statutory requirements for an 

interlocutory appeal.”) (internal quotation marks omitted); see also In re Vitamins Antitrust Litig., 

2000 WL 673936 at *3. 

B. RTR fails to establish that immediate appeal will likely and materially advance 

the ultimate termination of this litigation. 

Interlocutory appeal also is not warranted because RTR has failed to show that appeal will 

“likely and materially advance the ultimate determination” of this case. Educ. Assistance Found. 

for Descendants of Hungarian Immigrants in the Performing Arts, Inc. v. United States, No. 11-

1573, 2014 WL 12780253, at *3 (D.D.C. Nov. 21, 2014) (emphasis added); see also Blumenthal 

v. Trump, 328 F. Supp. 3d 77, 81 (D.D.C. 2019). A contrary appellate ruling on plaintiffs’ standing 

would potentially resolve this case,22 but the mere possibility of that outcome is not the standard. 

 

22 If the Court were to certify its decision for immediate appeal, plaintiffs could present their 

other bases for standing to the Court of Appeals, including the informational injury this Court 

found non-cognizable under Wertheimer. 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 21 of 25
16 

To succeed on this point, RTR cannot simply “assume[] that [it] will prevail on appeal.” Judicial 

Watch, 233 F. Supp. 2d at 28. It must show that success on appeal is the “likely course of events.” 

Id. (emphasis added). 

RTR makes no such showing. See supra Part I.B. Moreover, even if it could, immediate 

appeal would still not be warranted, as it would “prolong rather than hasten the termination of 

litigation.” United States ex rel. Barko v. Halliburton Co., 4 F. Supp. 3d 162, 167 (D.D.C. 2014); 

accord Arias v. DynCorp, 856 F. Supp. 2d 46, 54 (D.D.C. 2012); Chennareddy v. Dodaro, No. 87-

3528, 2010 WL 3025164, at *2 (D.D.C. July 22, 2010). Further delay in this case would allow the 

FEC—and, by extension, Bush and RTR—to continue depriving plaintiffs and the public of 

FECA-required disclosure information about respondents’ role in the 2016 election, without any 

realistic expectation of a change in court opinion. This is exactly the type of piecemeal review that 

Congress sought to avoid. As such, the Court should deny RTR’s motion for interlocutory appeal 

and allow this case to finally proceed to the merits of the FEC’s unjustifiable five-year delay. 

III. RTR’s Repeated Efforts to Prolong this Litigation Only Underline Plaintiffs’ 

Distinct Standing Based on Organizational Injury and Unlawful FEC Delay. 

It bears repeating that the purpose of this lawsuit is to end the FEC’s unlawful delay of 

more than five years (and counting) in taking any action on plaintiffs’ administrative complaints. 

This motion is nothing more than an attempt to extend this delay by prolonging the litigation. 

Indeed, as RTR has acknowledged, “preserving the status quo”—that is, perpetuating delay—was 

its sole interest in seeking intervention. ECF No. 9 at 15. 

As plaintiffs have explained at length, see ECF No. 13, they suffer distinct organizational 

injuries and cognizable harms based on this delay itself. The FEC’s failure to resolve plaintiffs’ 

administrative complaints means no information about its actions in this matter can be made 

publicly available, including any legal conclusions, factual findings, or vote records. See 52 U.S.C. 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 22 of 25
17 

§ 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a); Disclosure of Certain Documents in Enforcement and 

Other Matters, 81 Fed. Reg. 50702 (Aug. 2, 2016); see also 5 U.S.C. § 552(a)(2), (a)(5). Plaintiffs 

depend on this type of information for their public education, legislative policy, and regulatory 

reform programs, so plaintiffs’ ability to effectuate their organizational missions has been impaired 

by the FEC’s failure to act. See ECF No. 13 at 35-37, 41-44, 46-51; Fischer Decl. ¶¶ 4-39; 

Wertheimer Decl. ¶¶ 2-10. Relatedly, plaintiffs have had to divert resources from other planned 

organizational needs to research, fill in the gaps in the Bush campaign’s and RTR’s disclosure 

reports, and explain to reporters and partner organizations how they might attempt to find 

information not properly reported by Bush and RTR. See ECF No. 13 at 46-47, 50-51; Fischer 

Decl. ¶¶ 20-21. So long as the FEC’s delay continues, aided by RTR’s intervention in this matter, 

plaintiffs’ programmatic and organizational injuries will persist. 

The FEC has had more than five years to cure these injuries and ample time since it 

regained a quorum on December 18, 2020 to appear in and defend this lawsuit, but there is no 

indication it has taken any action towards either end. An order of this Court directing the FEC to 

act within 30 days pursuant to 52 U.S.C. § 30109(a)(8)(C) would plainly redress plaintiffs’ Article 

III injuries. Accordingly, this Court should deny RTR’s motion for reconsideration and 

certification for interlocutory appeal. 

 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 23 of 25
18 

CONCLUSION 

For these reasons, Intervenor-Defendant’s motion for reconsideration and certification for 

interlocutory appeal should be denied. 

 Dated: March 19, 2021 Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

 CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Fred Wertheimer (DC Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue N.W. 

Washington, DC 20036 

(202) 355-9600 

Donald J. Simon (DC Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street N.W., Suite 600 

Washington, DC 20005 

(202) 682-0240 

Attorneys for Plaintiffs

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 24 of 25
19 

CERTIFICATE OF SERVICE 

I hereby certify that on March 19, 2021, I caused a true and correct copy of the foregoing 

document to be served upon all counsel of record registered with the Court’s ECF system, by 

electronic service via the Court’s ECF transmission facilities. 

Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Case 1:20-cv-00730-CRC Document 21 Filed 03/19/21 Page 25 of 25