IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 19-cv-2753-RCL

STATEMENT OF INTEREST 

OF THE UNITED STATES OF AMERICA

JEFFREY BOSSERT CLARK 

Acting Assistant Attorney General 

ERIC WOMACK

Assistant Branch Director 

ZACHARY A. AVALLONE

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W.

Washington, D.C. 20005 

Tel: (202) 514-2705

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 1 of 18
TABLE OF CONTENTS

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

ARGUMENT.................................................................................................................................. 4

I. The Federal Election Commission’s Independent Grant Of Litigating Authority ............. 4

II. Plaintiffs Do Not Have Standing ........................................................................................ 6

A. The Commission’s Delay Is Not Enough, On Its Own, To Establish Standing ..... 6

B. Plaintiffs’ Other Purported Harms Are Speculative ............................................... 8

III. This Court Does Not Have Jurisdiction To Enter Judgment Against The Commission .. 11

CONCLUSION............................................................................................................................. 12

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 2 of 18
TABLE OF AUTHORITIES

CASES

Application of Blondin v. Dubois,

78 F. Supp. 2d 283 (S.D.N.Y. 2000) .......................................................................................... 1

Austin v. Smith,

312 F.2d 337 (D.C. Cir. 1962).................................................................................................. 12

* Bell Helicopter Textron, Inc. v. Iran,

734 F.3d 1175 (D.C. Cir. 2013).......................................................................................... 11, 12

Campaign Legal Ctr. v. Fed. Election Comm’n,

No. 18-CV-0053 (TSC), 2020 WL 2735590 (D.D.C. May 26, 2020)

appeal docketed, No. 20-5159 (D.C. Cir. June 9, 2020) ............................................................ 7

Cierco v. Mnuchin,

857 F.3d 407 (D.C. Cir. 2017).................................................................................................... 6

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

209 F. Supp. 3d 77 (D.D.C. 2016)............................................................................................ 11

Citizens for Responsibility & Ethics In Washington v. Fed. Election Comm’n,

267 F. Supp. 3d 50 (D.D.C. 2017)........................................................................................ 9, 10

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

475 F.3d 337 (D.C. Cir. 2007).................................................................................................. 10

City of New York v. Permanent Mission of India to the United Nations,

446 F.3d 365 (2d Cir. 2006) ....................................................................................................... 1

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013).................................................................................................................... 8

* Common Cause v. FEC,

108 F.3d 413 (D.C. Cir. 1997)........................................................................................... passim

Fla. Audubon Soc’y v. Bentsen,

94 F.3d 658 (D.C. Cir. 1996)...................................................................................................... 6

Food & Water Watch, Inc. v. Vilsack,

808 F.3d 905 (D.C. Cir. 2015).................................................................................................... 9

Harrison v. Republic of Sudan,

802 F.3d 399 (2d Cir. 2015)

adhered to on denial of reh’g, 838 F.3d 86 (2d Cir. 2016) ........................................................ 1

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 3 of 18
In re Sci. Applications Int’l Corp. (SAIC) Backup Tape Data Theft Litig.,

45 F. Supp. 3d 14 (D.D.C. 2014)................................................................................................ 8

Int’l Bhd. of Teamsters v. Transp. Sec. Admin.,

429 F.3d 1130 (D.C. Cir. 2005).................................................................................................. 6

Jakks Pac., Inc. v. Accasvek, LLC,

270 F. Supp. 3d 191 (D.D.C. 2017)

aff’d, 727 F. App’x 704 (D.C. Cir. 2018)................................................................................. 11

James Madison Ltd. by Hecht v. Ludwig,

82 F.3d 1085 (D.C. Cir. 1996).............................................................................................. 6, 11

* Judicial Watch Inc. v. Fed. Election Comm’n,

293 F. Supp. 2d 41 (D.D.C. 2003).............................................................................................. 7

Koumoin v. Ki-Moon,

No. 16-CV-2111 (AJN), 2016 WL 7243551 (S.D.N.Y. Dec. 14, 2016)................................ 1, 7

* Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992)................................................................................................................ 6, 8

Mohammadi v. Islamic Republic of Iran,

947 F. Supp. 2d 48 (D.D.C. 2013)

aff’d, 782 F.3d 9 (D.C. Cir. 2015) ............................................................................................ 11

* Mwani v. bin Laden,

417 F.3d 1 (D.C. Cir. 2005)...................................................................................................... 11

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016)

as revised (May 24, 2016) ...................................................................................................... 2, 7

Terry v. Dewine,

75 F. Supp. 3d 512 (D.D.C. 2014)............................................................................................ 11

STATUTES

26 U.S.C. § 9010............................................................................................................................. 4

26 U.S.C. § 9040............................................................................................................................. 4

28 U.S.C. § 517........................................................................................................................... 1, 5

52 U.S.C. § 30106........................................................................................................................... 4

52 U.S.C. § 30107........................................................................................................................... 4

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 4 of 18
52 U.S.C. § 30109................................................................................................................... 2, 3, 5

Federal Election Campaign Act Amendments of 1974,

Pub. L. No. 93-443, 88 Stat. 1263 (1974)................................................................................... 4

RULES

Fed. R. Civ. P. 12............................................................................................................................ 6

OTHER AUTHORITIES

Leadership and structure, Federal Election Commission Website, 

https://www.fec.gov/about/leadership-and-structure/................................................................. 5

President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key 

Administration Posts, White House, https://www.whitehouse.gov/presidentialactions/president-donald-j-trump-announces-intent-nominate-appoint-individuals-keyadministration-posts-43/?utm_source=link ................................................................................ 5

PN2237 — Allen Dickerson — Federal Election Commission, United States Congress, 

https://www.congress.gov/nomination/116th-congress/2237?s=1&r=6 .................................... 5

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 5 of 18
The United States respectfully files this Statement of Interest (“Statement”) pursuant to 28 

U.S.C. § 517, which authorizes the Department of Justice (“Department”) to attend to the interests 

of the United States in federal court.

1

 

The Department of Justice does not represent the Defendant Federal Elections Commission 

(the “Commission”) in this case because the Commission possesses independent litigating 

authority and the Commission has not requested representation by the Department in this matter. 

Accordingly, the United States has not appeared on behalf of the Commission. Nevertheless, 

because the Commission has not yet appeared in this case and no other parties have appeared to 

assist this Court in evaluating its jurisdiction to enter judgment (including a default judgment), the 

Department submits this Statement to explain why the plaintiffs have not established standing to 

sue. 

Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and Noah 

Bookbinder have not alleged an injury sufficient to demonstrate standing. Under binding Circuit 

precedent, the Commission’s delay in acting on an administrative petition is, standing alone, not 

an injury. See Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). The Supreme Court 

 1 28 U.S.C. § 517 vests the Attorney General with discretion over how and when to protect the 

United States’ interests in litigation. This statute provides a mechanism for the United States to 

submit its views in cases in which the United States is not a party, and does not necessitate 

intervention under Rule 24. See, e.g., Harrison v. Republic of Sudan, 802 F.3d 399, 406–07 (2d 

Cir. 2015), adhered to on denial of reh’g, 838 F.3d 86 (2d Cir. 2016) (accepting as authoritative 

the United States’ views, submitted via statement of interest pursuant to 28 U.S.C. § 517, about 

requirements of a sanctions regime at issue in the litigation); City of New York v. Permanent 

Mission of India to the United Nations, 446 F.3d 365, 376 n.17 (2d Cir. 2006), aff’d and 

remanded, 551 U.S. 193 (2007) (recognizing the United States’ authority to file a statement of 

interest “on its own initiative”); Koumoin v. Ki-Moon, No. 16-CV-2111 (AJN), 2016 WL 

7243551, at *3 (S.D.N.Y. Dec. 14, 2016) (recognizing the United States’ appearance in case via 

statement of interest to assert immunity of foreign diplomatic officials): Application of Blondin v. 

Dubois, 78 F. Supp. 2d 283, 288 n.4 (S.D.N.Y. 2000) (recognizing United States’ authority to 

file a statement of interest to express its views about the interpretation of an international treaty).

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has made clear that “a bare procedural violation, divorced from any concrete harm” does not satisfy 

the injury-in-fact requirement of Article III. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 

(2016), as revised (May 24, 2016). CREW’s alleged organizational harm is not concrete because 

it is based on speculative harm that documents might be lost during the delay and, regardless, fails 

because CREW does not allege how it would use the information it seeks in this case in particular. 

Individual Plaintiff Noah Bookbinder likewise lacks standing because he does not explain how 

missing information about an election in the State of Missouri from 2016 impacts his ability to 

cast an informed vote in Maryland where he is registered to vote. Accordingly, this Court should 

vacate the default judgment entered against the Commission and dismiss this case. 

The Department does not intend to address any other issues in this case, including the 

merits of the claims in the Complaint, in light of the Commission’s decision not to request 

representation. 

BACKGROUND

Plaintiffs CREW and Noah Bookbinder filed an administrative complaint with the 

Commission on June 29, 2018. Compl. for Injunctive and Declaratory Relief, Dkt. 1 (“Compl.”) 

at ¶ 1. The administrative complaint alleged that certain persons and entities “executed a conduit 

contribution scheme that used nonprofits to funnel money to federal super PACs in order to conceal 

the identity of donors supporting the election of now-former Missouri Governor Eric Greitens in 

2016.” Id. Plaintiffs then filed an amended administrative complaint on August 8, 2018, and 

another amended administrative complaint on November 20, 2018. Id.

On September 16, 2019, Plaintiffs filed this lawsuit “challenging the [Commission’s] 

failure to act on [their] administrative complaint[.]” Id. Plaintiffs claimed authority to bring suit 

under 52 U.S.C. § 30109(a)(8)(A) which allows anyone who files an administrative complaint 

with the Commission to file suit in this court if the Commission does not act on an administrative

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complaint during the 120-day period beginning on the date the complaint is filed. Id.; see 52 

U.S.C. § 30109(a)(8)(A).

Plaintiffs allege various injuries caused by the Commission’s delay. Plaintiff CREW 

asserts organizational harm to itself based on its assertion that delays “hamper [CREW’s] ability 

to access the information that it is entitled to under the statute” because “documents may be 

destroyed or lost and witness memories may fade” or “the organization at issue may shut down or 

cease operations making it more difficult to access documents and witnesses.” Compl. ¶¶ 56–57. 

Plaintiff CREW also claims that “the running of the five-year statute of limitations constrains the 

FEC’s enforcement, as after the statute has run, it can no longer issue fines.” Id. ¶ 56. CREW 

further alleges that it “is hindered in carrying out its core programmatic activities when those 

individuals and entities that attempt to influence elections and elected officials are able to keep 

their identities hidden.” Id. ¶ 8. Individual Plaintiff Bookbinder asserts a separate injury, alleging 

that he “is harmed in exercising his right to an informed vote when a political committee fails to 

report the true source of its contributions.” Id. ¶ 11.

The Commission did not appear in this case to defend itself and did not submit an Answer. 

On February 3, 2020, the Clerk docketed an Entry of Default. Dkt. 7. Plaintiffs moved for default 

judgment on March 16, 2020, which the Court granted on April 9, 2020. Dkt. 8 & 9. The default 

judgment instructed the Commission to conform with the order “within 90 days.” Dkt. 9. No 

other parties have intervened in this case or requested permission to file an amicus brief. Since 

the Commission did not defend the action and no other party has appeared, the Department now 

files this Statement to help the Court analyze its jurisdiction over this case.

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ARGUMENT

I. THE FEDERAL ELECTION COMMISSION’S INDEPENDENT GRANT OF 

LITIGATING AUTHORITY

The Department has not entered an appearance on behalf of the Commission in this case 

because the Commission has independent litigating authority to defend against Plaintiffs’ lawsuit, 

and the Commission has not otherwise requested representation by the Department. 

The Federal Election Commission is an independent regulatory agency of the United States 

created by the Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 

1263, which amended the Federal Election Campaign Act of 1971 (the “Act”). The Commission 

is composed of six voting members whom the President appoints with the advice and consent of 

the Senate. 52 U.S.C. § 30106(a)(1). No more than three members of the Commission may be 

affiliated with the same political party. Id. 

The Commission has the power to initiate, defend, or appeal certain civil actions through 

its General Counsel when enforcing the provisions of the Act and certain provisions of the Internal 

Revenue Code. See 52 U.S.C. § 30107(a)(6); 26 U.S.C. §§ 9010(a), 9040(a). Pursuant to Section 

30107(a)(6) of Title 52 of the U.S. Code, the Commission has authority to litigate any civil action 

in which the principal interest implicated is any power or authority vested in the Commission by 

law. See 52 U.S.C. § 30107(a)(6) (“The Commission has the power to initiate . . ., defend (in the 

case of any civil action brought under section 30109(a)(8) of this title) or appeal any civil action 

in the name of the Commission to enforce the provisions of [the] Act . . . through its general 

counsel[.]”). An affirmative vote of four members of the Commission is required for the 

Commission to take any action under Section 30107(a)(6), including to exercise its primary 

litigating authority to defend civil actions brought against it under Section 30109(a)(8). See 52 

U.S.C. § 30106(c).

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This action is one for which the Commission has primary litigating authority. Plaintiffs

brought this case under 52 U.S.C. § 30109(a)(8), which authorizes suit against the Commission 

where the Commission dismisses an administrative complaint or fails to take action on an 

administrative complaint within 120 days. See Compl. ¶ 1. It is the understanding of the United 

States that the Commission cannot currently exercise its power to defend cases like this brought 

under Section 30109(a)(8) because only three of the Commission’s six seats are presently filled.

2

 

The Commission thus lacks the four votes required to authorize its General Counsel to appear and

defend this case or to ask the Department of Justice to defend this case on the Commission’s behalf.

The Commission lacks the ability to defend itself in this action and no other party has 

addressed the jurisdiction of this Court, so this Court understandably entered a default judgment 

against the Commission. However, the Department believes it necessary to submit this Statement 

on behalf of the United States to assist this Court in determining whether that judgment must be 

vacated, as it does not appear that the Commission will have a quorum soon.

3

 The Department’s 

role in this action is limited and—to be clear—it does not represent the Commission. Instead, it

submits this Statement pursuant to 28 U.S.C. § 517 based on its interest in ensuring that agencies 

 2 Leadership and structure, Federal Election Commission Website, 

https://www.fec.gov/about/leadership-and-structure/ (listing current Commissioners) (last visited 

Oct. 15, 2020).

3 The President announced his intent to nominate Allen Dickerson to the Commission in June. 

President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key 

Administration Posts, White House, https://www.whitehouse.gov/presidential-actions/presidentdonald-j-trump-announces-intent-nominate-appoint-individuals-key-administration-posts43/?utm_source=link (last visited Oct. 15, 2020). The President submitted the nomination of Allen 

Dickerson to the Senate on September 16, 2020. See PN2237 — Allen Dickerson — Federal 

Election Commission, United States Congress, https://www.congress.gov/nomination/116thcongress/2237?s=1&r=6 (last visited Oct. 15, 2020). 

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 10 of 18
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of the Executive Branch are not burdened by default judgments, caused by structural barriers to 

representation, that a court may lack jurisdiction to enter. 

II. PLAINTIFFS DO NOT HAVE STANDING

Plaintiffs lack standing to challenge the Commission’s purported failure to act on their 

administrative complaint. Federal courts have “an affirmative obligation to consider whether the 

constitutional and statutory authority exist . . . to hear each dispute.” James Madison Ltd. by Hecht 

v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (citation omitted); Fed. R. Civ. P. 12(h)(3) (“If the 

court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 

action.”) “Because Article III limits the constitutional role of the federal judiciary to resolving 

cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any 

exercise of our jurisdiction.” Int’l Bhd. of Teamsters v. Transp. Sec. Admin., 429 F.3d 1130, 1133 

(D.C. Cir. 2005) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en 

banc) and Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “Where a party’s Article III 

standing is unclear, [a court] must resolve the doubt, sua sponte if need be.” Cierco v. Mnuchin, 

857 F.3d 407, 415–16 (D.C. Cir. 2017) (citation omitted). The “irreducible constitutional 

minimum of standing contains three elements”: (1) an “injury in fact” which is “concrete and 

particularized” and “actual or imminent”; (2) a “causal connection between the injury and the 

conduct complained of”; and (3) “it must be likely, as opposed to merely speculative, that the 

injury will be ‘redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (citations omitted). 

A. The Commission’s Delay Is Not Enough, On Its Own, To Establish Standing

The Commission’s delay in taking action on Plaintiffs’ administrative complaint is not 

sufficient to confer standing. Plaintiffs allege that they were injured when the Commission failed 

to act on their administrative complaint within the 120-day period provided by Section 

30109(a)(8)(A). See Compl. ¶ 1 (“the FEC has failed to act”); id. ¶ 12 (alleging that they are 

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“harmed . . . when the FEC refuses to act on meritorious complaints”). As this Circuit has held, 

however, the Commission’s delay in acting on an administrative complaint under Section 

30109(a)(8)(A) is not an injury sufficient to show standing. In Common Cause, the D.C. Circuit 

explained that Section 30109(a)(8)(A) “does not confer standing; it confers a right to sue upon 

parties who otherwise already have standing.” 108 F.3d at 419 (emphasis added). And the 

Supreme Court more recently confirmed that a plaintiff “could not, for example, allege a bare 

procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement 

of Article III.” Spokeo, 136 S. Ct. at 1549 (2016).

District courts in this circuit apply the holding of Common Cause to cases like this one. 

Earlier this year, for example, a district court dismissed a case brought by the Campaign Legal 

Center (“CLC”) alleging that the Commission harmed that organization by not acting on CLC’s 

administrative complaint within 120 days. See Campaign Legal Ctr. v. Fed. Election Comm’n, 

No. 18-CV-0053 (TSC), 2020 WL 2735590, at *2 (D.D.C. May 26, 2020) appeal docketed, No. 

20-5159 (D.C. Cir. June 9, 2020). Plaintiff there had “filed an administrative complaint with 

Defendant FEC” but “a year passed with no FEC action[.]” Id. at *1. CLC then sued the 

Commission in district court, “arguing that the delay violated [§ 30109(a)(8)(A)’s] 120-day 

rule[.]” Id. The court dismissed the case, explaining that the 120 days referenced in 

“§ 30109(a)(8)(A) does not confer standing; it confers a right to sue upon parties who otherwise 

already have standing.” Id. at *2 (quoting Common Cause, 108 F.3d at 419). “Given [the] binding 

precedent from this Circuit on this issue,” the court found that CLC did not suffer an injury from 

delay sufficient to establish Article III standing. Id.; see also Judicial Watch Inc. v. Fed. Election

Comm’n, 293 F. Supp. 2d 41 (D.D.C. 2003) (“The [D.C. Circuit] made clear that while the FEC’s 

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failure [to] act within the 120-day period of [§ 30109(a)(8)(A)] conferred a right to sue, it did not 

also confer standing.”).

B. Plaintiffs’ Other Purported Harms Are Speculative 

Plaintiffs’ alleged harms arising from the Commission’s purported delay are not an “injury 

in fact” because they are neither “concrete and particularized” nor “actual or imminent.” See 

Lujan, 504 U.S. at 560. The Supreme Court has long expressed “reluctance to endorse standing 

theories that rest on speculation about the decisions of independent actors.” Clapper v. Amnesty 

Int’l USA, 568 U.S. 398, 414 (2013); see also In re Sci. Applications Int’l Corp. (SAIC) Backup 

Tape Data Theft Litig., 45 F. Supp. 3d 14, 25–26 (D.D.C. 2014) (“Courts for this reason are 

reluctant to grant standing where the alleged future injury depends on the actions of an independent 

third party.”). 

Plaintiffs here allege that waiting for the Commission’s final determination might “hamper 

[CREW’s] ability to access [third-party] information that it is entitled to under the statute” because,

in the meantime, third-party “documents may be destroyed or lost and witness memories may fade” 

or “the organization at issue may shut down or cease operations making it more difficult to access 

documents and witnesses.” Compl. ¶¶ 56–57 (emphasis added). These types of allegations are 

quintessentially speculative—they ask this Court to guess at how long the Commission would take 

(in the absence of judicial action) to rule on the administrative petition and to speculate about 

whether records would actually be lost or memories actually fade during this time. If alleging just 

the potential loss of information, which is an inherent risk of any delay, is sufficient to establish 

injury, then any delay would be per se Article III harm, contrary to the holding of the D.C. Circuit. 

See Common Cause, 108 F.3d at 419.

Plaintiffs’ other theory of harm—that they are deprived of information during the delay—

likewise fails because it is neither concrete nor particularized. See Compl. ¶ 8. To show 

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organizational injury, CREW must demonstrate that “the defendant’s conduct perceptibly 

impaired the organization’s ability to provide services” which must be significant enough to cause 

“an inhibition of [the organization’s] daily operations.” Food & Water Watch, Inc. v. Vilsack, 808 

F.3d 905, 919, 920 (D.C. Cir. 2015) (citation omitted) (finding that organization had no standing 

because it “alleged no more than an abstract injury to its interests”). In a previous case where 

CREW and Noah Bookbinder sued the Commission, another court in this Circuit dismissed their 

case for lack of standing. Citizens for Responsibility & Ethics In Washington v. Fed. Election 

Comm’n, 267 F. Supp. 3d 50, 54–55 (D.D.C. 2017) (J. Leon). CREW’s complaint in that case 

described how the type of information it sought helped CREW to pursue its general organizational 

goals, but the court found those high-level explanations were not enough to show any actual injury. 

Id. As the court explained, the “Complaint does not allege what CREW would use [the soughtafter] information for in this case in particular.” Id. (emphasis added). The court also rejected 

CREW’s claim that “the information they seek would help them ferret out corruption . . . which is 

consistent with CREW’s general mission to ‘publicize[ ] the role of these individuals and entities 

in the electoral process and the extent to which they have violated federal campaign finance laws,’” 

and explained that “such an interest in knowing or publicizing that the law was violated is akin to 

claiming injury to the interest in seeing the law obeyed, which simply does not present an Article 

III case or controversy[.]” Id. (citation omitted) The Complaint in this case suffers from the same 

defect—Plaintiffs here discuss their mission and projects in general terms, but they do not allege 

with any specificity how they would use the information that they seek in this case in particular. 

See e.g., Compl. ¶¶ 4–8. 

Individual Plaintiff Bookbinder’s claim of injury as a voter fares no better. He claims that 

he “is harmed in exercising his right to an informed vote when a political committee fails to report 

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the true source of its contributions.” Compl. ¶ 11. This alleged harm is neither concrete nor 

particularized because he “does not allege what [he] would use [the sought-after] information for 

in this case in particular.” Citizens for Responsibility & Ethics In Washington, 267 F. Supp. 3d at

54–55 (D.D.C. 2017). For missing information to create an injury in fact for an individual voter, 

the information must be “useful” to assist the individual in exercising his or her vote. Common 

Cause, 108 F.3d at 418 (“[a] voter deprived of useful information at the time he or she votes suffers 

a particularized injury sufficient to create standing”); Citizens for Responsibility & Ethics in 

Washington v. Fed. Election Comm’n, 475 F.3d 337, 339 (D.C. Cir. 2007) (In a case related to

Bush/Cheney campaign activities, the court noted that “[o]ne might wonder why the case is not 

moot. The election is over; President Bush is constitutionally barred from running again; and Vice 

President Cheney has announced that he will not run.”). Bookbinder is a registered voter in 

Maryland, Compl. ¶ 11, but the complaint only alleges potential violations from a 2016 campaign 

for the governor of Missouri. Id. ¶ 1. The complaint makes no effort to explain how missing 

information about a statewide election in Missouri from 2016 could possibly impact Bookbinder’s 

ability to exercise an informed vote in Maryland today. 

The approaching statute of limitations is also not relevant to the Plaintiffs’ purported 

informational injury. Plaintiffs allege that “the running of the five-year statute of limitations 

constrains the FEC’s enforcement, as after the statute has run, it can no longer issue fines.” Compl. 

¶ 56; see id. ¶ 47. Plaintiffs carefully limit the alleged impact of the statute of limitations to only 

the Commission’s ability to issue fines—importantly, they never claim that the running of the 

statute would impact the Commission’s (or their own) ability to acquire the sought-after 

information. See id. In fact, CREW has elsewhere argued that even if the five-year statute of 

limitations for imposing fines has passed, the Commission still has the equitable power to compel 

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disclosure. See Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 209 

F. Supp. 3d 77, 85 n.3 (D.D.C. 2016). And, of course, the potential inability of the Commission 

to impose fines on alleged violators does not confer standing on a private party. Common Cause, 

108 F.3d at 418 (holding no standing when requested relief is for the Commission to “get the bad 

guys” and impose monetary penalties “rather than disclose information”).

Plaintiffs have not pleaded any injury that could establish they have standing to the 

Commission. The D.C. Circuit is clear that the 120-day alone is not sufficient. Common Cause, 

108 F.3d at 419. Plaintiffs have failed to allege exactly how not having the information they seek 

in this case has caused them a concrete or specific injury. Plaintiffs thus have not demonstrated 

that they have standing to sue.

III. THIS COURT DOES NOT HAVE JURISDICTION TO ENTER JUDGMENT 

AGAINST THE COMMISSION

“The Court cannot enter a default judgment when it lacks jurisdiction over an action.” 

Terry v. Dewine, 75 F. Supp. 3d 512, 530 (D.D.C. 2014). Even when a party does not appear, 

“entry of a default judgment is not automatic[.]” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 

2005). “The procedural posture of a default does not relieve a federal court of its ‘affirmative 

obligation’ to determine whether it has subject-matter jurisdiction over the action.” Mohammadi 

v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 61 (D.D.C. 2013), aff’d, 782 F.3d 9 (D.C. Cir. 

2015) (quoting Ludwig, 82 F.3d at 1092). 

Although the Court already issued a default judgment in this case, the Court should vacate 

that judgment as void. A default judgment must be vacated when plaintiffs lack standing or 

jurisdiction. See Bell Helicopter Textron, Inc. v. Iran, 734 F.3d 1175, 1180 (D.C. Cir. 2013); Jakks 

Pac., Inc. v. Accasvek, LLC, 270 F. Supp. 3d 191, 199 (D.D.C. 2017), aff’d, 727 F. App’x 704 

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(D.C. Cir. 2018) (vacating default judgment entered when court did not have subject matter 

jurisdiction). 

The time that has passed since this Court entered the default judgment has no bearing on 

whether to vacate for lack of standing. “The Supreme Court has long instructed that judgments in 

excess of subject-matter jurisdiction ‘are not voidable, but simply void.’” Bell Helicopter, 734 

F.3d at 1180 (citation omitted) (explaining no “reasonable time” constraint on challenging 

jurisdiction of default judgments). There is “no time limit on an attack upon a void judgment.” 

Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962). 

Plaintiffs here suffered no cognizable injury and accordingly lack Article III standing. The 

Court should vacate the default judgment and dismiss the case.

CONCLUSION

The Department respectfully suggests that plaintiffs have failed to establish standing to 

sue. Accordingly, the Court should vacate its default judgment and dismiss this case in its entirety.

Dated: October 16, 2020 Respectfully submitted,

JEFFREY BOSSERT CLARK 

Acting Assistant Attorney General 

ERIC WOMACK

Assistant Branch Director 

/s/ Zachary A. Avallone

ZACHARY A. AVALLONE 

(D.C. Bar No. 1023361) 

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W.

Washington, D.C. 20005 

Tel: (202) 514-2705

Email: zachary.a.avallone@usdoj.gov

Case 1:19-cv-02753-RCL Document 11 Filed 10/16/20 Page 17 of 18
CERTIFICATE OF SERVICE

I hereby certify that on October 16, 2020, I electronically filed the foregoing document 

with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic 

filing to attorneys who have appeared in this case.

/s/ Zachary A. Avallone

Zachary A. Avallone

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