ORAL ARGUMENT NOT YET SCHEDULED 

No. 20-5159 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

 Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant-Appellee.

On Appeal from the United States District Court 

for the District of Columbia, No. 18-cv-0053 (TSC) 

Before the Honorable Tanya S. Chutkan 

REPLY BRIEF OF PLAINTIFF-APPELLANT 

CAMPAIGN LEGAL CENTER 

 

Mark P. Gaber 

Molly E. Danahy 

Megan P. McAllen 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Ste. 400 

Washington, DC 20005 

(202) 736-2200 

 Counsel for Plaintiff-Appellant 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 1 of 30
i 

TABLE OF CONTENTS

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

GLOSSARY OF ABBREVIATIONS ....................................................................... v

SUMMARY OF ARGUMENT ................................................................................. 1

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

I. CLC Has Standing to Enforce Its Statutory Right to Agency Action. ............ 4

II. The FEC’s Failure to Act Deprives CLC of Information to which It Is 

Entitled by Statute and Directly Impedes CLC’s Ability to Effectuate its 

Mission. .......................................................................................................... 14

III. Time Is of the Essence. .................................................................................. 20

CONCLUSION ........................................................................................................ 21

CERTIFICATE OF COMPLIANCE ....................................................................... 23

CERTIFICATE OF SERVICE ................................................................................ 24

 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 2 of 30
ii 

TABLE OF AUTHORITIES 

Cases 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................ 14

Citizens for Responsibility and Ethics in Washington v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ............................................................................ 16 

Citizens for Responsibility and Ethics in Washington v. FEC, 

267 F. Supp. 3d 50 (D.D.C. 2017) ...................................................................... 16

*Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ............................. 2-3, 5, 7 

Democratic Senatorial Campaign Committee v. FEC, 

1996 WL 34301203 (D.D.C Apr. 17, 1996) ................................................... 8, 13

Doe v. Federal Democratic Republic of Ethiopia, 

851 F.3d 7 (D.C. Cir. 2017) .................................................................................. 6 

*Doe, 1 v. FEC, 920 F.3d 866 (D.C. Cir. 2019) .......................................... 15, 18, 19 

FEC v. Akins, 524 U.S. 11 (1998) .................................................................... 6, 9, 14 

FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981) ............. 6 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ........................................................... 8

Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 2020) ..................... 17

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ............................ 17

Massachusetts v. E.P.A., 549 U.S. 497 (2007) ........................................................ 20

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) .................................................. 16

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) ......................................................... 16

Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989) .......................... 5 

 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 3 of 30
iii 

*Rushforth v. Council of Economic Advisers, 

762 F.2d 1038 (D.C. Cir. 1985) ................................................................ 5, 10, 11

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ....................................................... 14

Telecommunications Research & Action Center v. F.C.C., 

750 F.2d 70 (D.C. Cir. 1984) ........................................................................ 6, 8, 9 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (en banc) ............................................ 1 

*Zivotofksy ex rel. Ari Z. v. Secretary of State, 

444 F.3d 614 (D.C. Cir. 2006) .............................................................. 4, 5, 11, 12 

Statutes 

5 U.S.C. § 552(a)(2)(A) ....................................................................................... 3, 15 

5 U.S.C. § 552(a)(5) ............................................................................................. 3, 15 

5 U.S.C. § 552b ........................................................................................................ 11 

52 U.S.C. § 30107(a)(9) ............................................................................................. 3 

52 U.S.C. § 30109(a) ................................................................................................. 6 

52 U.S.C. § 30109(a)(4)(B)(ii) ............................................................................ 3, 14 

*52 U.S.C. § 30109(a)(8)(A) ............................................................. 2, 7, 8, 9, 10, 12 

52 U.S.C. § 30109(a)(12) ......................................................................................... 18 

53 U.S.C § 30119 ....................................................................................................... 1 

11 C.F.R. § 111.20(a) ........................................................................................... 3, 15 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 4 of 30
iv 

Other Authorities 

Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 

50702 (Aug. 2, 2016) ................................................................................................. 3 

 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 5 of 30
v 

GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 6 of 30
1 

SUMMARY OF ARGUMENT 

For almost eighty years, federal law has barred persons or entities contracting 

with the federal government from making direct or indirect campaign contributions. 

See 52 U.S.C. § 30119. And for good reason: the contractor contribution ban was 

“the outgrowth of a decades-long congressional effort to prevent corruption and 

ensure the merit-based administration of the national government,” concerns that 

remain every bit as urgent as they were in 1940. Wagner v. FEC, 793 F.3d 1, 14, 

(D.C. Cir. 2015) (en banc). Indeed, as this Court has recognized, “if there is an area 

that can be described as the ‘heartland’ of such [corruption] concerns, the contracting 

process is it.” Id. at 22. 

The Federal Election Commission (“FEC”) failed to heed this admonition in 

its continuing failure to take action on the administrative complaint here. Nearly four 

years have now elapsed since plaintiff-appellant Campaign Legal Center (“CLC”) 

filed an administrative complaint alleging clear violations of the contractor 

contribution ban—namely, that Geo Corrections Holdings, Inc., a wholly owned 

subsidiary of private prison federal contractor GEO Group, Inc., contributed 

hundreds of thousands of dollars in 2016 to a federal super PAC supporting Donald 

Trump in violation of 52 U.S.C. § 30119—but the agency still has yet to act. 

Unable to defend this protracted delay on the merits, the FEC has instead 

focused its defense on the claim that CLC lacks standing. That claim is wrong, and 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 7 of 30
2 

as explained in CLC’s opening brief, the district court was wrong to adopt it. CLC 

suffers concrete injuries as a result of the FEC’s delay, both to its statutory right to 

receive some action in response to its administrative complaint and to informational 

rights long recognized as sufficient to confer standing. The FEC and its amicus offer 

no cogent basis for finding that these injuries somehow fail to clear the Article III 

bar. 

First, Congress created a right to FEC action on administrative complaints by 

authorizing a judicial remedy for unlawful FEC delay when the agency fails to act 

within 120 days. As a complainant under the Federal Election Campaign Act 

(“FECA”), CLC thus has a right to timely action on its administrative complaint—

as evidenced by Congress’s authorization of a judicial remedy to enforce that right 

if the FEC fails to “act on [its] complaint during the 120-day period beginning on 

the date the complaint is filed.” 52 U.S.C. § 30109(a)(8)(A). Under longstanding 

Supreme Court and D.C. Circuit precedent, Congress may define statutory rights the 

deprivation of which constitute an injury sufficient to satisfy Article III standing 

requirements. 

The FEC contends that FECA stands alone as an exception to this rule, but its 

arguments are unavailing. Just as a FOIA requestor has standing to sue when denied 

the information she seeks, so too does CLC have standing when it is denied the 

agency action Congress prescribed. Nor does Common Cause v. FEC, 108 F.3d 413 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 8 of 30
3 

(D.C. Cir. 1997), mandate a contrary conclusion. Common Cause was a dismissal 

case, not a delay case, and unlawful FEC delay is distinct from an unlawful FEC 

dismissal for constitutional standing purposes. 

Second, CLC suffers a distinct informational injury because the FEC’s 

continuing failure to resolve its administrative complaint means no information 

about the proceedings can be made publicly available, including any of the FEC’s 

legal conclusions, factual findings, or vote records. See id. § 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). 

CLC’s public education, legislative policy, and regulatory reform programs depend 

on this information, so the FEC’s failure to act seriously impairs CLC’s ability to 

effectuate its organizational mission. Without the ability to compel agency action in 

court, complainants have no way to uncover “the basis” of FEC inaction, see 11 

C.F.R. § 111.20(a), although statutory and regulatory provisions all anticipate that 

FEC enforcement proceedings will be handled “expeditiously,” 52 U.S.C. 

§ 30107(a)(9), and thereafter be made public, id. § 30109(a)(4)(B)(ii). See also 5 

U.S.C. § 552(a)(2), (a)(5). Nothing in the Act or longstanding FEC enforcement 

regulations and policies permits the Commission to simply hold a matter open in 

perpetuity and thereby preempt these disclosure requirements. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 9 of 30
4 

The FEC’s claim that dismissal and delay actions under FECA must be treated 

identically for standing purposes fails for these reasons. Indeed, the delay here—

which now threatens to extend beyond the five-year statute of limitations, risks 

permanently depriving CLC of information to which it is entitled under FECA. The 

unique informational deficits arising in a delay suit thus give rise to Article III 

injuries wholly distinct from those at stake in Common Cause. 

CLC respectfully urges that the Court reverse the district court’s finding with 

respect to CLC’s standing, vacate the order dismissing this action, and remand for 

further proceedings on an expedited basis. 

ARGUMENT 

I. CLC Has Standing to Enforce Its Statutory Right to Agency Action. 

 CLC has standing to enforce its statutory right to agency action. As this Court 

has held, Congress may create statutory rights, the deprivation of which give rise to 

Article III standing, even if the harm alleged would not otherwise confer standing. 

In such cases, a plaintiff is injured for Article III purposes “because he did not get 

what the statute entitled him to receive.” Zivotofsky ex rel. Ari Z. v. Secretary of 

State, 444 F.3d 614, 618 (D.C. Cir. 2006). This Court has recognized this type of 

“statutory standing” in a number of contexts, including the Freedom of Information 

Act (“FOIA”), id., the right to have Jerusalem listed as the place of birth on a birth 

certificate, id., rights created under the Federal Advisory Committee Act (“FACA”), 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 10 of 30
5 

id. at 618; Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989); and the 

right to agency action to promulgate rulemaking under the Sunshine Act, Rushforth 

v. Council of Econ. Advisers, 762 F.2d 1039, 1039 n.3 (D.C. Cir. 1985). As CLC has 

explained, see Opening Br. at 12-25, it has standing to enforce its statutory right to 

FEC action on its administrative complaint for the same reasons a plaintiff has 

standing to enforce its statutory rights under the Foreign Relations Authorization 

Act, FOIA, FACA, and the Sunshine Act: CLC has not received what Congress 

statutorily entitled it to receive. The FEC contends that the Federal Election 

Campaign Act (“FECA”) stands alone as an exception to this rule, but its arguments 

are meritless. 

First, the FEC contends that this Court’s decision in Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) (per curiam), forecloses CLC’s standing. Not so. 

Here, CLC challenges the FEC’s delay—its failure to act on CLC’s administrative 

complaint within 120 days, whereas in Common Cause, the plaintiff challenged the 

dismissal of its administrative complaint. Section 30109(a)(8)(A) establishes two 

different causes of action: one to challenge the FEC’s failure to act on an 

administrative complaint, and one to challenge the FEC’s dismissal of an 

administrative complaint. Although those two causes of action are located in the 

same statutory paragraph, they are in fact distinct. The actions implicate different 

legal standards, with delay suits assessed under factors related to the reasonableness 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 11 of 30
6 

of the delay, see Telecomm. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 80 (D.C. 

Cir. 1984) (“TRAC”), and dismissal cases turning on factors such as “the 

thoroughness, validity, and consistency of [the FEC’s] agency’s reasoning,” see

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). The 

actions are brought at different (and mutually exclusive) stages of the FECA 

enforcement process—delay suits only when the FEC has failed to take action, and 

dismissal suits only after the FEC has made a final determination. See 52 U.S.C. 

§ 30109(a). And the actions implicate different harms to complainant-plaintiffs: 

delay suits involve harm to plaintiffs who are denied their statutory right to 

expeditious agency action in the time-sensitive area of election law, while dismissal 

suits involve harm to plaintiffs who are deprived of the information or substantive 

protections FECA guarantees. See FEC v. Akins, 524 U.S. 11 (1998). 

The FEC highlights the Common Cause decision’s characterization of that 

plaintiff as desiring “a prompt and lawful resolution of the complaint” in a 

“reasonable period of time.” FEC Br. at 13 (quoting Common Cause, 108 F.3d at 

418). But the timeliness of the FEC’s consideration was not at issue in the case. The 

Court’s passing statements on that topic are not precedent, had no bearing on the 

issue actually before the Court, and were not informed by the arguments CLC raises 

here. See Doe v. Fed. Democratic Republic of Ethiopia, 851 F.3d 7, 10 (D.C. Cir. 

2017) (“[B]inding circuit law comes only from the holdings of a prior panel, not 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 12 of 30
7 

from its dicta.” (internal quotation marks omitted)). Likewise, Common Cause’s 

reasoning that the plaintiff lacked standing to assert that “the FEC failed to process 

[a] complaint in accordance with law,” 108 F.3d at 419, does not refer to 

§ 30109(a)(8)(A)’s delay suit provision, but rather FECA’s substantive requirements 

at play in the FEC’s decision to dismiss an administrative complaint. That is all it 

could have referred to, given the absence of a delay claim in Common Cause. 

 The FEC suggests that Common Cause treated § 30109(a)(8)(A) “as a whole,” 

rather than specifically addressing the dismissal prong of the statute. See FEC Br. at 

16. Although the delay and dismissal provisions co-exist in the same sentence of the 

same statutory subpart, the two causes of action differ in the key respect that only 

the delay provision confers a substantive right. Common Cause was a dismissal case, 

and this Court explicitly decided it as such. See 108 F.3d at 419 (“Common Cause 

has failed to demonstrate that it has suffered a legally cognizable injury as a result 

of the FEC’s dismissal of its complaint.” (emphasis added)). That the Court referred 

to § 30109(a)(8)(A) says nothing about the aspect of that provision the Court had no 

occasion to consider. This Court does not accidentally make precedent by failing to 

announce that it is not deciding statutory issues not presented by a pending case.1

 

1 Amicus GEO Corrections Holdings, Inc. (“GEO”) highlights several district court 

decisions concluding that plaintiffs lacked standing to challenge FEC delay, see Geo 

Br. at 9-10, but the arguments advanced by CLC here were not raised, analyzed, or 

decided in any of those cases.

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 13 of 30
8 

Second, the FEC contends that § 30109(a)(8)(A) “does not support the strict 

parsing” advanced by CLC. FEC Br. at 17, based on its theory that the provision 

contains “equal phrases” defining when a complainant “may be aggrieved.” Id. at 18 

(emphasis in original). But, the FEC does not explain what it means by “equal 

phrases,” suggesting only that Congress did not define what it means to be aggrieved 

under either statutory provision. The FEC’s argument is misplaced. 

To begin, the FEC omits from its statutory quotations the substantive standard 

adopted by Congress to determine when a delay may begin to be unreasonable—a 

failure to act “during the 120-day period beginning on the date the complaint is 

filed.” 52 U.S.C. § 30109(a)(8)(A). Although this Court has held that this provision 

does not impose a 120-day deadline for final agency action, FEC v. Rose, 806 F.2d 

1081, 1092 (D.C. Cir. 1986), Congress’s choice of 120 days reflects its judgment as 

to when a delay may begin to become unreasonable, see Democratic Senatorial 

Campaign Comm. v. FEC, No. Civ.A. 95-0349(JHG), 1996 WL 34301203 at *7 

(D.D.C Apr. 17, 1996) (“DSCC”) (noting that although “Congress did not impose 

specific time constraints upon the Commission to complete final action . . . it did 

expect that the Commission would fulfill its statutory obligations so that [FECA] 

would not become a dead letter”); TRAC, 750 F.2d at 80 (requiring courts to balance, 

among other factors, the timetable identified by Congress in determining whether 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 14 of 30
9 

delay is unreasonable). The FEC’s contention ignores the statutory text and would 

render the 120-day timeline chosen by Congress substantively meaningless. 

Moreover, the FEC is wrong to characterize “by a dismissal” and “by a failure 

to act [within 120 days]” as “equal phrases.” FEC Br. at 18. To be sure, they are two 

phrases, but they are not “equal,” whatever that means, for purposes of statutory 

injury. Congress defined only in broad terms the injury arising from dismissal of an 

administrative complaint under § 30109(a)(8)(A), authorizing suit by any 

complainant “adversely affected or aggrieved” by a dismissal. Akins, 524 U.S. at 19-

20 (noting that “[h]istory associates the word ‘aggrieved’ with a congressional intent 

to cast the standing net broadly”). In contrast, Congress specifically identified a 

distinct statutory right to have the FEC take some action on one’s administrative 

complaint, see § 30109(a)(8)(A) and it set 120 days as “the timetable,” TRAC, 750 

F.2d at 80, for courts to consider in weighing whether the delay is unreasonable. 

Consider the different lawsuits. A party challenging a dismissal of its 

complaint cannot point to anything in § 30109(a)(8)(A) for the court to consider in 

ascertaining whether it has been aggrieved by that dismissal. Nothing in 

§ 30109(a)(8)(A) aids the court in determining whether the complainant has suffered 

an injury or whether the FEC acted consistent with, or contrary to, law in dismissing 

the complaint. Rather, the court must consider the factual allegations, and the 

substantive FECA provisions at issue, to determine whether the complainant has 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 15 of 30
10 

been aggrieved by the dismissal. In contrast, a party challenging failure to act can 

point directly to § 30109(a)(8)(A) to demonstrate that it is aggrieved: in that statute 

Congress granted a right to some action and provided a timetable against which to 

judge the agency’s progress and weigh whether the conferred right has been violated. 

Further, the two causes of action involve completely different records for courts to 

consider: delay cases require courts to consider evidence regarding the 

Commission’s actions and priorities, while dismissal cases require courts to evaluate 

the Commission’s application of law to fact. The two provisions are not coterminous 

or “equal,” either in practice or in text. Indeed, the FEC only arrives at its assumption 

of parallel meaning by excising the substantive metric adopted by Congress for 

determining when a complainant’s right to prompt agency action has been violated. 

Third, the FEC contends that FECA should stand as an exception to the rule 

that Congress may confer rights by statute the denial of which satisfy standing 

requirements. See FEC Br. at 20. But the FEC provides no persuasive justification 

for this Court to treat FECA differently. In particular, the FEC offers nothing to 

distinguish Zivotofsky—where this Court detailed the concept of statutory standing 

and held that a person could sue over the deprivation of a statutory entitlement—

other than to say that unlike the statute at issue there, “FECA creates no such 

substantive right.” FEC Br. at 20. This conclusory assertion is wrong. See supra at 

4-7. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 16 of 30
11 

Likewise, the FEC’s effort to urge a different outcome than Rushforth is 

unavailing. In Rushforth, this Court held that a plaintiff had standing to sue an 

agency for its failure to promulgate regulations within the 180-day period required 

by the Sunshine Act. 762 F.2d at 1039 n.3. The FEC contends that the Court’s 

holding in this regard is not precedential because “standing was uncontested,” 

“merely lurk[ed] in the record,” and was “neither brought to the attention of the court 

nor ruled upon.” FEC Br. at 20 (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 

543 U.S. 157, 170 (2004)). Not so. This Court squarely considered and decided the 

standing question: “Mr. Rushforth clearly had standing as to the Sunshine Act 

action.” Rushforth, 762 F.2d at 1039 n.3. Moreover, this Court examined the 

Rushforth decision a second time in Zivotofsky and reaffirmed that the promulgation 

deadline in the Sunshine Act was an example of a statutory right sufficient to support 

Article III standing. 444 F.3d at 618 (“The [plaintiff] is injured-in-fact for standing 

purposes because he did not get what the statute entitled him to receive. . . . The 

same injury can give a plaintiff standing to enforce the Government in the Sunshine 

Act, 5 U.S.C. § 552b . . . .” (citing Rushforth, 762 F.2d at 1039 n.3)). Contrary to the 

FEC’s assertion, this Court has considered whether the Sunshine Act grants a 

statutory right to timely agency action sufficient to confer Article III standing, and 

held that it does. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 17 of 30
12 

The FEC also seeks to distinguish the Sunshine Act by contending that it 

“created a right to agency action and a specific deadline for that action,” whereas 

“FECA does not.” FEC Br. at 20-21. But FECA’s plain text does precisely that: a 

party has a right to sue based upon the FEC’s “failure . . . to act on [its administrative 

complaint] during the 120-day period beginning on the date the complaint is filed.” 

52 U.S.C. § 30109(a)(8)(A). FECA’s provision does not cease to be a statutory right 

merely because a court is required to consider suits on a case-by-case basis to 

determine whether the particular length of delay is unreasonable. Section 

30109(a)(8)(A) grants a right to some agency action, and provides a metric to 

consider in determining whether the delay is unreasonable. The FEC does not 

explain why the strict deadline in the Sunshine Act creates a right sufficient for 

Article III purposes but the deadline under FECA falls short of Article III simply 

because it is marginally more flexible. Nothing about a FECA delay suit makes it 

less of a Case or Controversy, see U.S. Const. art. III, than a Sunshine Act delay suit. 

Nor does the FEC explain why a FOIA requestor has standing to sue anytime 

she is denied information she is statutorily entitled to receive, but an administrative 

complainant under FECA should not have standing to sue when she is denied the 

agency action—here, meaning some agency decision—she is statutorily entitled to 

receive. As this Court has explained, a FOIA requestor might request information 

that she has no actual interest in. See Zivotofsky, 444 F.3d at 617-18 (“Anyone whose 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 18 of 30
13 

request for specific information has been denied has standing to bring an action; the 

requestor’s circumstances—why he wants the information, what he plans to do with 

it, what harm he suffered from the failure to disclose—are irrelevant to his 

standing.”). All that matters is that FOIA entitles her to the information, and she has 

standing to sue if denied the information to which she is entitled. That is so even if 

she intends never to look at the information, and to immediately toss it in the trash. 

The FEC offers no explanation why the statutory entitlement to agency fulfillment 

of a FOIA request suffices to establish standing but the statutory entitlement to 

agency action on a FECA complaint does not. 

Indeed, the right to agency action Congress conferred in FECA exists for 

weighty reasons that bear on the functioning of our democracy. See Opening Br. at 

24-25; DSCC, 1996 WL 34301203, at *8 (“[T]he deterrent value of the Act’s 

enforcement provisions are substantially undermined, if not completely eviscerated, 

by the FEC’s failure to process administrative complaints in a meaningful time 

frame.”). Congress chose to create a bipartisan Commission to ensure that 

enforcement decisions were not motivated by improper partisan aims; but Congress 

ensured that an improper partisan desire to prevent enforcement could be checked 

by private complainants exercising their right to ensure action on their complaint. 

The delay suit is thus essential to ensuring compliance with FECA’s substantive 

campaign finance laws, which exist to prevent corruption and ensure an informed 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 19 of 30
14 

electorate. See Buckley v. Valeo, 424 U.S. 1, 3 (1976). The right to agency action 

afforded by FECA is no less substantive than the identity of the city listed on a birth 

certificate, the receipt of a government document one might discard, or the timely 

promulgation of agency regulations. Even if it could be called “procedural,” the right 

to agency action conferred by Congress in FECA is of such a weighty concern that 

it easily supports Article III standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 

1549 (2016) (noting that violation of procedural right may suffice to constitute injury 

in fact). 

The Court should reject the FEC’s invitation to create a different set of rules 

for FECA compared to other statutory rights and to insulate the FEC from judicial 

review. 

II. The FEC’s Failure to Act Deprives CLC of Information to which It Is 

Entitled by Statute and Directly Impedes CLC’s Ability to Effectuate its 

Mission. 

A plaintiff “suffers an ‘injury in fact’ when the plaintiff fails to obtain 

information which must be publicly disclosed pursuant to a statute.” Akins, 524 U.S. 

at 21. Here, the FEC’s failure to act deprives CLC of information to which it is 

entitled by FECA, FOIA, and binding agency regulations, namely the results of the 

FEC’s consideration of CLC’s administrative complaint, and the bases for those 

results. See 52 U.S.C. § 30109(a)(4)(B)(ii) (requiring the Commission to disclose 

conciliation agreements and any “determination that a person has not violated [the 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 20 of 30
15 

law].”); 11 C.F.R. § 111.20(a) (requiring the Commission to release any “finding of 

no reason to believe or no probable cause to believe” or other “terminat[ion of] 

proceedings” and “the basis therefor”); see also 5 U.S.C. § 552(a)(2)(A), (a)(5) 

(requiring agencies to make public all opinions and orders in adjudications as well 

as commissioner voting records in all agency proceedings); cf. Doe v. FEC, 920 F.3d 

866, 870-71 (D.C. Cir. 2019) (noting that the FEC has bound itself to disclose a 

variety of materials related to enforcement actions). As such, CLC has suffered an 

injury-in-fact sufficient to support standing and the district court’s opinion should 

be overturned. 

The Commission and amicus GEO2

 assert that CLC is not injured by the 

FEC’s failure to act because the underlying administrative complaint seeks only 

determination of the legality of GEO’s contributions, and not additional disclosure 

related to the same. See FEC Br. at 23-24; GEO Br. at 15-20. This argument conflates 

the relief sought by CLC’s administrative complaint—enforcement of FECA against 

GEO—with the relief sought in this action—to force the Commission to comply 

with the law by acting on CLC’s complaint. 

In support of this flawed theory, the FEC and GEO rely on a series of cases in 

which courts found that plaintiffs lacked informational standing to challenge the 

 

2

 GEO Corrections Holdings, Inc. is the respondent in the underlying administrative 

matter. GEO Br. at 8. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 21 of 30
16 

FEC’s unlawful dismissal of administrative complaints because enforcement of 

those complaints would not result in the disclosure of additional information. See, 

e.g., Citizens for Responsibility and Ethics in Washington [CREW] v. FEC, 475 F.3d 

337 (D.C. Cir. 2007) (“CREW”); CREW v. FEC, 267 F. Supp. 3d 50 (D.D.C. 2017); 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) (“CREW II”). In each of these cases, 

however, the information sought by CLC here—the Commission’s enforcement 

decision, the votes of the Commissioners, and the bases thereof—had already been 

disclosed. For instance, in CREW, 475 F.3d at 338, the court cited to evidence 

disclosed during the course of the FEC’s investigation, including materials provided 

by the respondents in that case and “described in great detail in the [FEC] General 

Counsel’s report”; the Commission’s vote to adopt its General Counsel’s 

recommendations; and the Commission’s release of “materials relating to the matter 

. . . on the public record” at the close of the investigation). See also CREW II, 267 

F. Supp. at 52 (noting the General Counsel’s recommendation that the 

Commissioners vote in favor of investigation; that “only three of the six 

Commissioners so voted”; and that “both sides explained on the record the reasons 

for their vote”); Nader v. FEC, 823 F. Supp. 2d 53, 55 (D.D.C. 2011) (describing in 

detail the factual and legal findings contained in the General Counsel’s report and 

adopted by the Commission). Indeed, the information had been disclosed precisely 

because in those cases the Commission acted on the complaints. Here, the 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 22 of 30
17 

Commission’s unlawful inaction necessarily denies CLC that very information. As 

such, these cases are easily distinguishable. 

The only delay cases cited by the FEC and GEO are similarly inapposite. In 

Free Speech for People v. FEC, the plaintiffs sought disclosure of information 

related to a single alleged in-kind contribution, and the court found no injury because 

the participants in the scheme had already admitted to and disclosed the information 

sought, 442 F. Supp. 3d 335, 343 (D.D.C. 2020). The plaintiffs thus did not allege—

and thus the court did not consider—the informational injury CLC has suffered 

here—the denial of information statutorily required to be disclosed by the 

Commission rather than the respondent. Id.In contrast, the plaintiff in Judicial Watch

v. FEC did allege that he was entitled to “the information resulting from a thorough 

and complete investigation” of the underlying complaint, 293 F. Supp. 2d 41, 47 

(D.D.C. 2003). But there the plaintiff lacked an injury-in-fact because the matter 

concerned his own contributions, so he was already aware of all the information that 

would result from any investigation by the Commission. Id. Here, in contrast, GEO 

has admitted that it has disclosed information to the FEC that has not been disclosed 

to CLC—including “responses filed with the FEC” in which GEO purports to 

“demonstrate[ ] that it is not a contractor and has not violated FECA.” See GEO Br. 

at 18 n.3. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 23 of 30
18 

Taken together, the cases relied upon by the FEC and its amicus make clear 

that the information released by the FEC at the conclusion of a matter goes beyond 

the “mere[] legal determinations that the Commission and staff have made regarding 

facts that have otherwise been disclosed.” FEC Br. at 25. Rather, it extends to the 

factual materials disclosed by respondents or otherwise uncovered by the FEC 

during the course of its investigation, and which form the basis of its ultimate 

decision. See, e.g., Doe, 920 F.3d at 868 (walking through the factual evidence 

revealed by the Commission’s investigation of the matter at issue, and explaining 

how it formed the basis of the Commission’s determination that a violation had 

occurred.). This information is precisely what CLC seeks and cannot otherwise 

obtain due to the Commission’s failure to act. See 52 U.S.C. § 30109(a)(12) 

(prohibiting the Commission from releasing information about investigative matters 

until the administrative process is complete). 

As such, the Commission’s failure to act deprives CLC of more than simply 

“the knowledge as to whether a violation of law has occurred.” FEC Br. at 25. It 

deprives CLC of information critical to its mission, including not only factual 

evidence related to the matter at hand, see supra at 14-17, but also information about 

how the Commission conducts enforcement with respect to the contractor 

contribution ban, what evidence it finds compelling, and how it prioritizes its 

enforcement docket at large. Importantly, the FEC does not assert—and thus 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 24 of 30
19 

waives—any argument that obtaining this information will not further CLC’s 

mission by assisting CLC in effectively engaging in advocacy, rulemaking, or 

advisory proceedings before the FEC; providing informed policy analysis to the 

public and partner organizations; and identifying and prioritizing necessary reforms 

to the campaign finance laws. 

Two final arguments advanced by the FEC and by GEO also fail. First, GEO’s 

contention that the Commission is not obligated to release information sought by 

CLC is foreclosed by precedent. GEO does not dispute that the FEC has an 

obligation to disclose the basis of its decisions once a file is closed.3

 In Doe this 

Court explicitly held that this obligation extends to factual evidence, including 

reports by the Commission’s General Counsel, which “reveal the ‘basis’ for the 

Commission’s actions.” 920 F.3d at 871 n.9. Thus, GEO’s argument that the 

information sought by CLC is subject to disclosure only as a matter of nonbinding 

agency policy fails. By withholding final action on the complaint, the Commission 

shirks its statutory and regulatory obligations to reveal its decision-making to 

complainants and the public. 

 

3

 Indeed, CLC is entitled to the disclosure of this information regarding the FEC’s 

investigation and decision-making process regardless of whether the FEC 

determines GEO’s contributions were illegal. See supra at 11-12 (citing 52 U.S.C. 

§ 30109(a)(4)(B)(ii); 5 U.S.C. § 552(a)(2)(A), (a)(5); 11 C.F.R. § 111.20(a)). 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 25 of 30
20 

Second, the FEC’s argument that CLC’s injury is not redressable is 

unavailing. CLC must only show “there is some possibility” that an order to conform 

to the law “will prompt [the agency]” to act on CLC’s complaint. See Massachusetts 

v. E.P.A., 549 U.S. 497, 518 (2007). The FEC does not dispute that it will release 

the information CLC seeks upon completion of the underlying proceeding, nor that 

an order to conform will prompt it to act. See FEC Br. at 27. Instead, the Commission 

merely contends that the timing of any release is “speculative.” Id. (characterizing 

as “speculative” whether “a release would occur soon after the conclusion of the 

litigation”) (emphasis added). But absent an order under section 30109(a)(8) 

requiring the FEC to take some action, the agency could hold this matter open in 

perpetuity, and never release the information to which CLC is entitled. Regardless 

of the precise date upon which the FEC will complete its work and release the 

information to which CLC is entitled, a court order will compel it to complete its 

work in a reasonable time—an apparently unachievable outcome absent such an 

order. CLC’s injury is thus redressable. 

III. Time Is of the Essence. 

CLC has noted repeatedly in this matter the significant prejudice inherent in 

the Commission’s ongoing failure to act, which appears to have continued unabated 

notwithstanding the pendency of this action. CLC’s underlying complaint has been 

pending for over four years, yet the agency has failed to act. This civil action has 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 26 of 30
21 

been pending for nearly three years, yet it has failed to advance beyond the motion 

to dismiss stage. In all this time, it appears the Commission has yet to determine 

whether to even proceed on CLC’s complaint. FEC Br. at 27 (noting that “should 

[the agency] determine to proceed with the complaint,” it could be years before the 

matter winds its way through the investigative process (emphasis added)). If this is 

true, CLC is almost certain to prevail on remand. Nonetheless, the Commission 

appears committed to drawing things out. Id. at 28 (noting that “the matter [will] be 

closed at a later point irrespective of a remand, and the proximity to remand would 

be dependent on the manner in which post-remand events unfold”). As such, 

although CLC does not formally seek expedited review within the meaning of this 

Court’s procedures, CLC renews its request that this Court direct the district court 

to ensure that post-remand events unfold expeditiously, as justice demands. 

CONCLUSION 

 For the foregoing reasons, the district court’s judgment should be reversed 

and the case remanded for further proceedings. 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 27 of 30
22 

November 4, 2020 Respectfully submitted, 

/s/ Mark P. Gaber 

Mark P. Gaber 

Molly E. Danahy 

Megan P. McAllen 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Ste. 400 

Washington, DC 20005 

(202) 736-2200 

mgaber@campaignlegal.org 

mdanahy@campaignlegal.org 

mmcallen@campaignlegal.org 

Counsel for Appellant

 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 28 of 30
23 

CERTIFICATE OF COMPLIANCE 

 Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief 

complies with the type-volume limitation because it contains 5,132 words, excluding 

the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Cir. R. 32(a)(1). I further 

certify that this brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the typeface style requirements of Fed. R. App. P. 32(a)(6) because the 

brief was prepared in 14-point Times New Roman font using Microsoft Word. 

November 4, 2020 /s/ Mark P. Gaber 

 Mark P. Gaber 

 Counsel for Appellant

 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 29 of 30
24 

CERTIFICATE OF SERVICE 

 I hereby certify, pursuant to Fed. R. App. P. 25(c) and Cir. R. 25(c), that on 

November 4, 2020, the foregoing was electronically filed with the Clerk of the Court 

using the CM/ECF system, which will send a notification to the attorneys of record 

in this matter who are registered with the Court’s CM/ECF system. 

November 4, 2020 /s/ Mark P. Gaber 

 Mark P. Gaber 

 Counsel for Appellant 

USCA Case #20-5159 Document #1869776 Filed: 11/04/2020 Page 30 of 30