IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 

 

Case No. 1:20-cv-00730 

 

Hon. Christopher R. Cooper 

 

 

 

 

 

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR 

MOTION FOR RECONSIDERATION

Intervenor Right to Rise Super PAC, Inc. (“RTR”) does not dispute the basis for the motion 

for reconsideration filed by plaintiffs Campaign Legal Center (“CLC”) and Democracy 21: that 

this Court has not resolved the distinct question, deferred in its initial February 2021 order, as to 

whether plaintiffs have organizational standing based on the deleterious effects of FEC delay on 

their programmatic activities. Intervenor’s Opp’n to Pls.’ Mot. for Recons. (“Opp’n”) 5, 9, ECF 

No. 35. Intervenor argues, however, that “such inadvertence was harmless,” id. at 5; however, a 

finding that plaintiffs have organizational standing would warrant reversal of this Court’s 

December 30, 2021 order dismissing their case, see Mem. Op. 10, ECF No. 33, and provide 

grounds to grant their motion for default judgment against the FEC. Intervenor is really just 

reiterating its view that plaintiffs’ “organizational-standing theory” lacks merit. Opp’n at 9. 

But intervenor is wrong. Plaintiffs have demonstrated all elements of organizational injury 

based on unlawful agency delay and the resulting deprivation of information contained in the

Commission’s file in Matter Under Review (“MUR”) 6927, the administrative proceeding 

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21, 

Plaintiffs, 

 

v. 

 

FEDERAL ELECTION COMMISSION, 

Defendant, 

 

RIGHT TO RISE SUPER PAC, INC., 

Intervenor-Defendant. 

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underlying this action. As plaintiffs argued in multiple submissions, but chiefly in their opposition 

to intervenor’s motion to dismiss, see Pls.’ Opp’n to Int.’s Mot. to Dismiss (“MTD Opp’n”) 29-

43, ECF No. 13, the FEC’s failure to act on their administrative complaints has inflicted concrete 

organizational injury on plaintiffs by depriving them of access to key information they need to 

achieve their missions as campaign finance reform organizations and to engage effectively in their 

programmatic activities. See also Pls.’ Opp’n to Int.’s Mot. for Recons. 16-17, ECF No. 21; Pls.’ 

Mot. for Default J. 10-11, ECF No. 23; Pls.’ Reply Supp. Mot. for Default J. 7-8, ECF No. 25.

Plaintiffs are entitled to relief under Rule 60(b)(1) and 60(b)(6) because the Court, after 

previously acknowledging but declining to address plaintiffs’ assertion of organizational standing, 

see ECF No. 17 at 9 n.1, ultimately left the issue unresolved, see Order, ECF No. 32; Mem. Op., 

ECF No. 33. Upon considering this distinct basis for standing, the Court should deny intervenor’s 

motion to dismiss and grant plaintiffs’ motion for default judgment because plaintiffs have suffered 

distinct organizational injuries sufficient to confer Article III standing. 

ARGUMENT

I. Plaintiffs Have Established Organizational Injury. 

Organizational standing is founded on a two-part inquiry, requiring plaintiffs to show, 

“first, whether the agency’s action . . . ‘injured [their] interest’ and, second, whether [Plaintiffs] 

‘used [their] resources to counteract that harm.’” PETA v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 

2015) (citation omitted). Contrary to the views of RTR, plaintiffs have satisfied this test.

First, the FEC’s failure to resolve plaintiffs’ administrative complaints concretely injures 

their interests by depriving them of key information they need to advance their missions, including 

information in the MUR file revealing how the Commission is interpreting FECA and exercising 

its statutory responsibilities. MTD Opp’n 29-36. This informational deprivation arises from the 

fact of agency inaction itself, not from the administrative respondents’ failure to provide FECACase 1:20-cv-00730-CRC Document 36 Filed 02/23/22 Page 2 of 12
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required disclosures, and thus inflicts a harm that is distinct from the statutory informational 

injuries plaintiffs assert under FEC v. Akins, 524 U.S. 11 (1998). See Friends of Animals v. Jewell, 

828 F.3d 989, 994 (D.C. Cir. 2016). It is also an injury unique to this case and these plaintiffs: the 

harm here is not simply that the FEC has exceeded the statutory 120-day period after which 

inaction on a complaint may be reviewed for unlawful delay. It is that the totality of the agency’s 

intransigence—which it has not appeared here to explain or defend—threatens to prevent plaintiffs 

from ever learning the basis for the FEC’s failure to act.

Plaintiffs have also satisfied the second prong of the PETA test, demonstrating through 

uncontroverted affidavit testimony that they have expended resources to counteract these 

organizational injuries. See Compl. ¶¶ 14-19, 20-22, ECF No. 1; Fischer Decl. ¶¶ 20-21, ECF. No. 

13-1. CLC and Democracy 21 cannot perform their core programmatic activities effectively 

without timely information about how the Commission is interpreting and applying FECA, 

including any fact-finding undertaken and votes cast by the Commissioners in the course of 

resolving plaintiffs’ administrative complaints. See Fischer Decl. ¶¶ 10, 34. 

Finally, plaintiffs have also demonstrated the causation and redressability requirements for 

Article III standing, because their organizational injuries flow directly from the FEC’s failure to 

act on their administrative complaints, and can be redressed by a court order under 52 U.SC. 

§ 30109(a)(8)(C) directing the Commission to act on plaintiffs’ complaints. See MTD Opp’n 43. 

II. Intervenor Raises No Argument that Refutes Plaintiffs’ Organizational Standing.

Intervenor raises various objections to plaintiffs’ organizational standing, most echoing

arguments they have repeated throughout this litigation. None have merit.

A. The Commission’s inaction has “injured [plaintiffs’] interest[s].”

RTR does not dispute that the FEC is legally bound to disclose its dispositions and votes 

in closed enforcement matters, as well as most documents in the MUR file. See 52 U.S.C. 

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§ 30109(a)(4)(B)(ii); 5 U.S.C. § 552(a)(2)(A), (a)(5); 11 C.F.R. § 111.20(a). Nor does it dispute 

that the FEC has not released the MUR file in this matter and is barred by statute from doing so 

until it puts an end to its delay and finally resolves this case. Opp’n at 2.

Instead, RTR first argues that plaintiffs’ theory of organizational standing is “intertwined 

with the informational-injury theory of non-disclosure,” Opp’n at 5, 7-8, by which it appears to 

mean that plaintiffs’ organizational injury claim relies on the absence of the same FECA-required 

reporting as plaintiffs’ informational injury claim under Akins did. This is incorrect, or a 

misunderstanding. In this motion, plaintiffs are not arguing organizational standing based on the 

administrative respondents’ alleged failure in the 2016 election cycle to report all information 

FECA requires, but rather based on the deprivation of information caused by the FEC’s complete

failure to resolve plaintiffs’ administrative complaints, and thereby give them access to the relevant 

MUR file. The latter informational deprivation is a cognizable basis for organizational injury 

distinct from the statutory informational injuries recognized in Akins. See Jewell, 828 F.3d at 994 

(recognizing that a deprivation of access to information can create an injury in fact sufficient for 

organizational standing separate from injuries asserted under Akins).1

1

 Ignoring this precedent, intervenor seems to make a half-hearted argument that plaintiffs cannot 

“proceed upon organizational standing where the . . . claimed injury in fact is based on the 

deprivation of information,” relying on a single district court decision that predates Akins and 

PETA. Opp’n at 8 (citing Found. on Econ. Trends v. Watkins, 794 F. Supp. 395 (D.D.C. 1992)). 

The D.C. Circuit has since clarified that lack of access to information can inflict organizational 

injuries. See Jewell, 828 F.3d at 994; PETA, 797 F.3d at 1094; Ctr. for Biological Diversity v. U.S. 

Dep’t of State, No. 18-cv-563-JEB, 2019 WL 2451767, at *3 (D.D.C. June 12, 2019) (“The D.C. 

Circuit has established distinct frameworks for informational and organizational injury.”).

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Insofar as intervenor is arguing that this Court already decided the fate of plaintiffs’ Akins 

standing claim2 and they cannot resurrect it in the guise of organizational standing, plaintiffs do 

not disagree. But intervenor clearly understands that plaintiffs’ actual argument is that the FEC’s 

protracted delay has injured plaintiffs by depriving them of information about the FEC’s

disposition of their complaints, including MUR materials such as Commission vote records and 

final decisional documents, submissions from respondents, and factual findings generated by the 

Commission or its Office of General Counsel (“OGC”) in processing or investigating the 

complaints. See Opp’n at 12-15. To this argument, intervenor raises two objections: first, that 

plaintiffs have not sufficiently shown that this deprivation injures their activities or burdens their 

resources as PETA demands; and second, that any such injury is not actually the result of agency 

delay but instead of a deadlocked Commission vote. Id. at 14.

First, Intervenor attempts to draw a distinction between this case and PETA by suggesting

that the PETA plaintiffs had shown that “the defendant’s conduct literally restrained or prevented 

plaintiff from carrying out its mission such that plaintiff’s activities were not feasible.” Id. at 10. 

Even accepting this characterization of the case law, intervenor does not explain why PETA was 

“literally” any more impeded by the informational deprivation alleged there than plaintiffs are in 

this case. CLC and Democracy 21 have described in great detail how the failure to resolve their 

pending administrative complaints impedes their public education work, campaign watchdog 

efforts, and legislative policy efforts. MTD Opp’n at 38-43, ECF No. 13. As plaintiffs noted, the

information they seek is vital to their public education efforts—not simply to their communications 

about this specific controversy, but also to their broader effort to educate the public about the role 

2 Plaintiffs maintain that they also suffer informational injuries sufficient to confer Article III 

standing under Akins, although this Court ruled otherwise in its December order, and preserve the 

issue for possible appeal. 

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the FEC plays in interpreting and applying the federal campaign finance laws. When the 

Commission allows administrative complaints to languish unresolved across multiple election 

cycles, plaintiffs are hindered in their ability to identify emerging problems in the FEC’s 

interpretations of the Act or its administrative processes; to make informed policy 

recommendations to address such problems before they recur; and to gather concrete evidence to 

support such policy proposals. Fischer Decl. ¶¶ 28, 34.

In response, RTR makes the bare accusation that plaintiffs did not “demonstrate that those 

same activities are now infeasible” and consequently “fall far short of [the] mark” of PETA. Opp’n 

at 10 (emphasis added). But simply saying this case is different does not make it so. The FEC’s 

extended inaction hinders plaintiffs’ programmatic activities by “depriv[ing] [them] of key 

information that [they] rel[y] on to educate the public” and to engage in the “normal process of 

submitting [FEC] complaints” and in Commission rulemakings and other proceedings. See PETA, 

797 F.3d at 1094. These injuries are “both concrete and specific to the work in which [plaintiffs 

are] engaged.” Action Alliance of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 

(D.C. Cir. 1986). 

Intervenor’s second argument is equally unavailing. It contends, without evidence, that any 

informational deprivation here is actually the result of a Commission “deadlock” and constructive 

dismissal, not delay. Opp’n at 14-15. Even if intervenor is correct in its suppositions about what is 

transpiring behind the scenes at the FEC, it does not explain why this recharacterization of agency 

inaction here would make plaintiffs’ organizational injury any less concrete. If anything, it does 

the opposite. RTR speculates that “the fact that the FEC has deadlocked on this MUR signals to 

Plaintiffs that the Commission disagrees on how to interpret the law here, and/or on the priority of 

this MUR,” and then suggests this “should actually help Plaintiffs’ mission” because they “are free 

to educate the public as to their disagreement with the current state of affairs.” Opp’n at 11 

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(emphasis added). RTR appears to be arguing that plaintiffs should just presume the reasons for 

FEC inaction on their complaints and then educate the public that they disagree with these 

imagined reasons. But it is not public “education” to publicly communicate on matters about which 

one has no information. The possibility that plaintiffs might undertake pure conjecture on a public 

platform does not advance their missions or make their educational, watchdogging, or legislative 

programmatic activities “feasible.”

More fundamentally, intervenor’s speculation about the FEC’s possible non-public 

activities in this matter is just that: speculation. No party here has any information about the 

Commission’s views on the substantive allegations in plaintiffs’ administrative complaints, nor 

what preliminary actions the Commissioners or FEC staff have taken, or not taken, in this 

proceeding. If intervenor has somehow received information about actual deliberations or votes in

this proceeding, plaintiffs certainly have not. Nor can they, unless or until their complaints are

finally resolved.

3

Intervenor’s conjecture about non-public split votes also undercuts its argument that “what 

Plaintiffs really seek here is ‘a legal conclusion that carries certain law enforcement consequences’

in which they have ‘no legally cognizable interest.’” Opp’n at 11 (citing Wertheimer v. FEC, 268 

F.3d 1070, 1075 (D.C. Cir. 2001)). This charge is demonstrably false: plaintiffs have repeatedly 

stressed that they seek the respondents’ submissions and the Commission’s fact-finding generated 

by the MUR proceedings. See, e.g., MTD Opp’n 33-36; Pls.’ Mot. for Default J. 10-11. But if 

intervenor’s conjecture about the FEC’s behind-the-scenes activities is credited and the FEC’s

3 If RTR’s theory of a de facto dismissal were correct, the Commission would have “functionally 

dismissed” the complaints without providing the requisite explanation to complainants or the 

public. As plaintiffs noted in their initial memorandum supporting reconsideration, this failure to 

provide a rationale for agency action would be de facto contrary to law. Pls.’ Mot. for Recons. at 

7-8, ECF No. 34. 

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inaction is in fact a result of split votes and gridlock, then there will never be a definitive legal 

ruling with majority support and precedential force in the administrative proceedings. Plaintiffs’ 

organizational interest in obtaining the factual findings and other MUR materials in the absence of 

any such “law enforcement consequences,” however, is undiminished. And insofar as there is any 

other explanation for the Commission’s extreme delay on these particular complaints, when it has 

resolved numerous others from the same time period raising comparable claims, plaintiffs are 

entitled to know what that explanation is.

B. Plaintiffs have “used [their] resources to counteract the harm.”

Plaintiffs have also demonstrated that they have expended resources to counteract these 

organizational injuries. See PETA, 797 F.3d at 1094. 

Intervenor objects that “all of Plaintiffs’ allegations pertaining to the diversion of resources 

stem from allegations of improper or inadequate disclosures under FECA.” Opp’n at 12. This 

ignores that the non-public file in MUR 6927 contains various kinds of “campaign finance 

information” that plaintiffs have alleged they are missing, see Compl. ¶¶ 16, 18, 21, including but 

not limited to factual information bearing on respondents’ alleged FECA violations, both 

disclosure-related and otherwise.

4 But more basically, organizational resources do not grow on 

trees: plaintiffs specified, without restriction, that they depend upon campaign finance

information—including present and historical information about “the nature, origin, and 

magnitude of candidates’ support”—to carry out their public education activities. Fischer Decl. 

¶¶ 16, 19. They made an unrebutted showing that being deprived of such information caused them 

4 In assessing the sufficiency of a complaint’s allegations of injury, Courts “draw[] all reasonable 

inferences from those allegations in plaintiffs’ favor,” and “presum[e] that general allegations 

embrace those specific facts that are necessary to support the claim.” La Roque v. Holder, 650 F.3d 

777, 785 (D.C. Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Case 1:20-cv-00730-CRC Document 36 Filed 02/23/22 Page 8 of 12
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to divert resources to investigate and attempt to remedy that deprivation. That diversion occurs

with respect to all information about “the nature” of candidates’ support, whether or not it entails 

a distinct FECA disclosure obligation. Plaintiffs do not fail to clear the Article III bar merely 

because they asserted two distinct theories of injury. 

Additionally, intervenor ignores that the delay itself—and consequent inability to access 

information about the resolution of their complaints—hampers plaintiffs’ organizational missions 

of watchdogging campaign practices and promoting FEC accountability. MTD Opp’n 40. As 

plaintiffs explained in opposing the motion to dismiss, they regularly file complaints against 

individuals or organizations that violate federal election law, and participate in rulemaking and 

advisory opinion proceedings at the FEC; they estimated filing more than seventy administrative 

complaints with the FEC between March 2015 and July 2020, the date plaintiffs’ opposition to the 

motion to dismiss was filed. MTD Opp’n 40; Fischer Decl. ¶ 32. Plaintiffs have met their burden

of showing organizational injury.

C. Plaintiffs’ organizational injury is redressable. 

As intervenor acknowledges, plaintiffs alleged that their organizational injury was 

redressable; it counters that the method of redress was insufficiently explained. See Opp’n at 13-

14 (quoting plaintiffs’ statement that their “organizational injuries flow directly from the FEC’s 

failure to act on their administrative complaints, and this Court is empowered under 52 U.S.C. 

§ 30109(a)(8)(C) to redress that failure”). It professes to be confused as to “how . . . their claimed 

organizational injury would be redressed by an order from this Court.” Id. at 14 (emphasis added).

But it is difficult to see what further detail plaintiffs can add to explain why an action brought 

under 52 U.S.C. § 30109(a)(8)(A) for “failure of the Commission to act” that requests a court order 

directing the Commission to act would address the agency’s delay. See Akins v. FEC, 101 F.3d

731, 738 (D.C. Cir. 1996) (en banc) (“[I]t has always been an acceptable feature of judicial review 

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of agency action that a petitioner’s ‘injury’ is redressed by the reviewing court notwithstanding 

that the agency might well subsequently legitimately decide to reach the same result through 

different reasoning.”), vacated on other grounds, FEC v. Akins, 524 U.S. 11 (1998). This is 

tantamount to asking plaintiffs to state the obvious, but in more words.

* * *

Plaintiffs have demonstrated all elements of organizational injury and have proven their 

standing to challenge the FEC’s unlawful nearly seven-year delay in acting on their administrative 

complaints. Plaintiffs have submitted copious evidence and argument in support of their claim for 

organizational standing. See Fischer Decl., ECF No. 13-1; Wertheimer Decl., ECF No. 13-2; MTD 

Opp’n 29-43, ECF No. 13; Pls.’ Opp’n to Int.’s Mot. for Recons. 16-17, ECF No. 21; Pls.’ Mot. 

for Default J. 10-11, ECF No. 23; Pls.’ Reply in Supp. of Mot. for Default J. 7-8, ECF No. 25; 

Pls.’ Suppl. Br. in Opp’n to Int.’s Mot. for Recons. 20, ECF No. 29; Pls.’ Reply in Opp’n to Int.’s 

Mot. for Recons. 15, ECF No. 31.

CONCLUSION 

Plaintiffs respectfully request that the Court reconsider its December 30, 2021 Order and 

Memorandum Opinion, find that plaintiffs have demonstrated organizational standing arising from 

the FEC’s delay, deny RTR’s Motion to Dismiss, and grant plaintiffs’ Motion for Default 

Judgment. 

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Dated: February 23, 2022 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 

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CERTIFICATE OF SERVICE

I hereby certify that on February 23, 2022, I caused a true and correct copy of the 

foregoing documents 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 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

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