UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

AMERICAN ACTION NETWORK 

1747 Pennsylvania Ave., NW, 5th Floor 

Washington, DC 20006 

 Proposed Intervenor- 

 Defendant. 

 Civil Action No. 1:22-cv-03281 (CRC) 

AMERICAN ACTION NETWORK’S 

UNOPPOSED MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT 

American Action Network (“AAN”) respectfully files this unopposed motion pursuant to 

Fed. R. Civ. P. 24(a) and (b) for leave to intervene as a defendant and file the attached motion to 

dismiss the complaint.1 A proposed order is attached.

INTRODUCTION AND BACKGROUND 

AAN’s right to intervene follows directly from the Court having granted AAN leave to 

intervene in the prior cases involving the FEC’s dismissal of CREW’s administrative complaint 

against AAN. See CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) (“CREW I”), appeal 

dismissed, Nos. 16-5300, 16-5343, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017); CREW v. FEC, 

299 F. Supp. 3d 83 (D.D.C. 2018) (“CREW II”), appeal dismissed, No. 18-5136, 2018 WL 

1

 Pursuant to Local Civil Rule 7(m), AAN conferred with counsel for the above-captioned parties. 

The Federal Election Commission (“FEC” or “Commission”) consents to AAN’s intervention. 

Citizens for Responsibility and Ethics in Washington (“CREW”) does not oppose. 

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5115542 (D.C. Cir. Sept. 19, 2018). AAN’s right also follows from this Court’s dismissal of 

CREW’s citizen suit against AAN. See CREW v. AAN, 590 F. Supp. 3d 164 (D.D.C. 2022) 

(“AAN III”), appeal pending No. 22-7038 (D.C. Cir.). 

The Court is well acquainted with the history of this litigation. In 2012, CREW filed an 

administrative complaint with the FEC alleging that AAN should have registered as a political 

committee from mid-2009 to mid-2011 pursuant to the Federal Election Campaign Act (“FECA”). 

CREW sought an FEC “investigation into these allegations,” a declaration that AAN “violated the 

FECA and applicable FEC regulations,” and “sanctions appropriate to these violations.” Original 

Admin. Compl. at 8, In re Am. Action Network, MUR No. 6589 (filed June 7, 2012), 

https://www.fec.gov/files/legal/murs/6589/14044361739.pdf. 

In 2014, the FEC dismissed CREW’s complaint in an “exercise of [the Commission’s] 

prosecutorial discretion.” AAN III, 590 F. Supp. 3d at 167. CREW challenged the dismissal as 

“contrary to law” and, on remand from this Court, “the Commission again dismissed CREW’s 

complaint.” CREW II, 299 F. Supp. 3d at 86. CREW again sought judicial review. This Court 

again concluded the agency had acted contrary to law and again remanded the complaint to the 

agency, ordering it to act within thirty days. See id. 

The FEC did not “dismiss[ ] again.” CREW v. AAN, 410 F. Supp. 3d 1, 25 (D.D.C. 2019) 

(“AAN I”). “[H]ad the complaint been dismissed again,” CREW would have sued the FEC again, 

and “the saga would have continued.” Ibid. Instead, “[t]he agency failed to act” and CREW 

“invoked FECA’s citizen-suit provision to sue AAN directly.” Id. at 7, 25; see 52 U.S.C. 

§ 30109(a)(8)(C). 

Meanwhile, the D.C. Circuit squarely “held that an FEC dismissal of an administrative 

complaint ‘that rests even in part on prosecutorial discretion cannot be subject to judicial review.’” 

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AAN III, 590 F. Supp. 3d at 173; see CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New 

Models”), en banc reh’g denied, No. 19-5161, 2022 WL 17578942 (D.C. Cir. Dec. 12, 2022). 

Because the Commission’s initial dismissal of CREW’s allegations against AAN had invoked its 

prosecutorial discretion, the Court dismissed CREW’s citizen suit. 

CREW appealed. Rather than pursue its appeal immediately, however, CREW obtained 

an abeyance while it sought to overturn the D.C. Circuit’s decision. Compl. ¶ 52. And ultimately, 

the D.C. Circuit denied rehearing, confirming New Models as the law of this Circuit. Although 

CREW’s appeal remains pending, CREW filed this parallel action again seeking this Court’s 

review of the allegations the FEC has declined to pursue. 

AAN has a clear and legally protected interest in defending the FEC’s and this Court’s 

dismissal decisions. Specifically, an adverse decision here would be used by CREW to justify 

further administrative or judicial proceedings against AAN. As before, no other party to this 

litigation can adequately represent AAN’s interests. See Crossroads Grassroots Policy Strategies 

v. FEC, 788 F.3d 312 (D.C. Cir. 2015). AAN’s timely motion—filed prior to the deadline for 

responsive pleadings—should be granted. 

STANDARD 

Federal Rule of Civil Procedure 24(a) requires the Court to allow intervention by anyone 

with standing who “claims an interest relating to the . . . transaction that is the subject of the action, 

and is so situated that disposing of the action may as a practical matter impair or impede the 

movant’s ability to protect its interest, unless existing parties adequately represent that interest.” 

Fed. R. Civ. P. 24(a)(2). 

Federal Rule of Civil Procedure 24(b) permits the Court to grant intervention on a timely 

motion where the proposed intervenor with standing “has a claim or defense that shares with the 

main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B); see Cook v. Boorstin, 

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763 F.2d 1462, 1464 (D.C. Cir. 1985). In permitting intervention under Rule 24(b), the Court 

“must consider whether the intervention will unduly delay or prejudice the adjudication of the 

original parties’ rights.” Fed. R. Civ. P. 24(b)(3). 

In either case, “[t]he motion must state the grounds for intervention and be accompanied 

by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P. 

24(c). For purposes of the “pleading” requirement, courts in this Circuit will accept a motion to 

dismiss. Washington All. of Tech. Workers v. DHS, 395 F. Supp. 3d 1, 21 n.4 (D.D.C. 2019); see, 

e.g., Campaign Legal Ctr. v. FEC, 31 F.4th 781, 787 (D.C. Cir. 2022) (“At the start of the 

proceedings in District Court, the Intervenors filed a motion to dismiss.”); MGM Glob. Resorts 

Dev., LLC v. U.S. Dep’t of Interior, No. 19-cv-2377 (RC), 2020 WL 5545496, at *1 (D.D.C. Sept. 

16, 2020) (“[T]he Court grants Movants’ motion to intervene and will allow the filing of the 

Movants’ proposed Motion to Dismiss.”). 

ARGUMENT 

The Court should grant intervention because AAN has standing and satisfies the elements 

of Federal Rule of Civil Procedure 24(a). Alternatively, the Court should permit AAN to intervene 

and defend the FEC’s dismissal of CREW’s allegations against AAN. 

I. AAN HAS STANDING TO INTERVENE 

An intervening defendant “must show injury in fact, causation, and redressability.” 

Crossroads, 788 F.3d at 316; see Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732–33 (D.C. 

Cir. 2003). AAN has standing in this case for the same reasons it had standing in the prior 

litigation. 

As before, CREW’s Complaint seeks to deprive AAN of the benefit of an FEC dismissal 

decision and to “return [AAN] to the position of a respondent subject to enforcement proceedings 

before a federal agency.” Crossroads, 788 F.3d at 317. Accordingly, AAN “has a significant and 

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direct interest in the favorable action shielding it from further litigation and liability.” Id. at 318. 

The D.C. Circuit has held that the “threatened loss” of a favorable FEC dismissal decision 

“constitutes a ‘concrete and imminent injury’” sufficient for standing. Ibid. (quoting Fund for 

Animals, 322 F.3d at 733). Because that “relief, . . . if granted, would injure [AAN][,]” ibid., AAN 

has also shown causation and redressability. 

II. THE COURT SHOULD GRANT INTERVENTION AS OF RIGHT 

AAN has the right to intervene to defend the FEC’s dismissal decision because it satisfies 

the elements of Rule 24(a)(2). “In deciding whether a party may intervene as of right, [this Court] 

employ[s] a four-factor test requiring: 1) timeliness of the application to intervene; 2) a legally 

protected interest; 3) that the action, as a practical matter, impairs or impedes that interest; and 

4) that no party to the action can adequately represent the potential intervenor’s interest.” 

Crossroads, 788 F.3d at 320 (citing Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 192 

(D.C. Cir. 2013)). 

First, this intervention is timely because it is filed the same day that the FEC’s responsive 

pleading is due. See Fund for Animals, 322 F.3d at 735 (intervention timely “two months after the 

plaintiffs filed their complaint”); MGM Glob. Resorts Dev., 2020 WL 5545496, at *4 (intervention 

timely “two weeks after the Government Defendants filed their motion to dismiss”). AAN’s 

intervention, therefore, cannot delay this litigation or prejudice the parties. 

Second, AAN has a direct and legally protected interest in this action. Because AAN has 

shown that it has an injury sufficient for “constitutional standing, it a fortiori has ‘an interest 

relating to the property or transaction which is the subject of the action.’” Crossroads, 788 F.3d 

at 320 (quoting Fund For Animals, 322 F.3d at 735). 

Third, this action may impair or impede AAN’s legally protected interest. Specifically, an 

adverse judgment here “would impair [AAN’s] defense in a new [FEC] proceeding because a 

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judicial pronouncement that the FEC’s dismissal was contrary to law would make the ‘task of 

reestablishing the status quo . . . [more] difficult and burdensome.’” Id. (quoting Fund for 

Animals, 322 F.3d a 735). An adverse judgment would likewise deprive AAN of the benefit it 

obtained when this Court dismissed CREW’s citizen suit pursuing the same allegations. See 

AAN III, 590 F. Supp. 3d at 175. 

Fourth, D.C. Circuit precedent establishes that AAN’s interests are not adequately 

represented by the FEC. As a general matter, the law of this Circuit holds that “governmental 

entities do not adequately represent the interests of aspiring intervenors.” Fund For Animals, 322 

F.3d at 736; see Second Nat. Res. Def. Council v. Costle, 561 F.2d 904, 912–13 (D.C. Cir. 1977). 

And the FEC, in particular, may be “a doubtful friend” because the agency “could seek to regulate 

[AAN] directly and immediately” if “its dismissal order is revoked.” Crossroads, 788 F.3d at 321. 

That is obviously a significant risk here given that a single Commissioner purports to “control” 

the agency and has unequivocally stated that she believes the FEC’s decision to “dismiss[ ] the 

complaint in this matter was absolutely contrary to the law.” Compl. Ex. 5 (Statement of Reasons 

of Commissioner Ellen L. Weintraub, at 8 (Sept. 30, 2022)). Although the Commissioner is wrong, 

her statement underscores that the FEC cannot represent AAN here. Because AAN easily meets 

“the minimal burden of showing inadequacy of representation,” AAN “should be allowed to 

intervene as of right.” Crossroads, 788 F.3d at 321. 

III. THE COURT SHOULD GRANT PERMISSIVE INTERVENTION 

AAN also qualifies for permissive intervention under Rule 24(b)(2). “That subsection 

states that a court ‘may’ grant a timely motion to intervene if ‘an applicant’s claim or defense and 

the main action have a question of law or fact in common.’” Cook, 763 F.2d at 1464; see also, 

e.g., Peters v. District of Columbia, 873 F. Supp. 2d 158, 211-12 (D.D.C. 2012). The district court 

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should grant discretionary intervention if intervention would not “unduly delay or prejudice the 

adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). 

AAN easily satisfies the standard. As explained above, AAN’s motion is timely and cannot 

prejudice the existing parties because it is being filed on the same day that the Commission is filing 

its motion to dismiss. Fund for Animals, 322 F.3d at 735; see also Massachusetts v. Microsoft 

Corp., 373 F.3d 1199, 1236 (D.C. Cir. 2004) (finding no prejudice where proposed intervenors 

had “already participated extensively in the proceedings”). 

Furthermore, AAN’s proposed motion to dismiss demonstrates that its defenses share 

common questions of law and fact with the main case. “Clearly, [AAN’s] defense here shares a 

common question of law with the main action: the legality of the FEC’s dismissal order.” 

Campaign Legal Ctr. v. FEC, 334 F.R.D. 1, 6 (D.D.C. 2019) (granting intervention where 

proposed motion to dismiss showed commonality); see also, e.g., Sierra Club v. Van Antwerp, 523 

F. Supp. 2d 5, 9–10 (D.D.C. 2007); Duke Energy Field Servs. Assets, LLC v. FERC, 150 F. Supp. 

2d 150, 153 (D.D.C. 2001). And the three prior cases CREW filed involving the FEC’s dismissal 

of its allegations against AAN likewise demonstrate commonality. The Court should grant AAN’s 

intervention as it did in CREW’s previous cases against the FEC. 

CONCLUSION 

 Fort these reasons, AAN should be granted leave to intervene as a party defendant and to 

file the attached motion to dismiss. 

Respectfully submitted, 

By: s/ Stephen J. Obermeier 

Stephen J. Obermeier (D.C. Bar No. 979667) 

Caleb P. Burns (D.C. Bar No. 474923) 

Jeremy J. Broggi (D.C. Bar No. 1191522) 

WILEY REIN LLP 

2050 M Street, NW 

Washington, DC 20036 

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(202) 719-7000 

sobermeier@wiley.law 

Dated: January 6, 2023 Counsel for American Action Network

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