Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 1 of 33 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-3319 (CRC) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION ) 

1050 First Street, NE ) 

Washington, DC 20463 ) MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the 

Federal Election Commission (“Commission”) hereby moves for an order dismissing plaintiff’s 

complaint, which seeks relief pursuant to 52 U.S.C. § 30109(a)(8)(C). Plaintiffs lack Article III 

standing to sue because, as this Court previously held in a prior proceeding involving the same 

underlying factual allegations, they have not suffered any cognizable informational or 

organizational injury, and plaintiffs are precluded from re-litigating that issue here. Furthermore, 

the relief plaintiffs seek, a remand to the agency, would not serve a discernible interest and 

avoiding another round of administrative proceedings related to plaintiffs’ administrative 

complaint, filed with the Commission over seven years ago, is supported by the futility doctrine. 

A supporting memorandum and a proposed order accompany this motion. 
 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 2 of 33 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

/s/ Christopher Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 13, 2023 (202) 694-1650 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 3 of 33 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-3319 (CRC) 

) 

v. ) 

) MEMORANDUM IN SUPPORT 

FEDERAL ELECTION COMMISSION, ) OF MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorneys 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 13, 2023 (202) 694-1650 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 4 of 33 

TABLE OF CONTENTS 

PAGE 

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

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

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT 

PROCEDURES..............................................................................................................2 

II. FACTUAL AND PROCEDURAL BACKGROUND...................................................4 

A. Plaintiffs’ Administrative Complaint in MUR 6927 .........................................4 

B. Plaintiffs’ First Lawsuit Alleging Unlawful Delay............................................5 

C. Commission Consideration of MUR 6927 ........................................................7 

D. The Instant Complaint......................................................................................11 

ARGUMENT...........................................................................................................................11 

I. STANDARD OF REVIEW .........................................................................................11 

II. THIS COURT HAS ALREADY CONCLUDED THAT 

PLAINTIFFS LACK AN INFORMATIONAL OR 

ORGANIZATIONAL INJURY, WHICH IS PRECLUSIVE HERE..........................13 

A. Issue Preclusion, or Collateral Estoppel ..........................................................13 

B. This Court’s Prior Holding on Plaintiffs’ Standing 

Meets All Criteria for Issue Preclusion............................................................16 

C. None of the Exceptions to Issue Preclusion Apply..........................................17 

III. THIS COURT SHOULD NOT ORDER A FUTILE REMAND ................................20 

CONCLUSION........................................................................................................................22 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 5 of 33 

TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003)................................................ 12 

Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210 (D.C. Cir. 2004).......................................... 15 

Ashcroft v. Iqbal, 556 U.S. 662 (2009)......................................................................................... 12 

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004).......................................................................... 11 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)......................................................................... 12 

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................... 2 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) .................................................. 7, 18 

Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021) ........................................5-6, 16 

Campaign Legal Ctr. v. FEC, 578 F. Supp. 3d 1 (D.D.C. 2021) ....................................... 6, 16, 17 

Campaign Legal Ctr. v. FEC, Civ. No. 20-0730 (D.D.C.) .................................................... 1, 6, 7 

Canonsburg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8 (D.D.C. 2013)......... 14, 15, 16, 17, 18, 19 

Checkosky v. S.E.C., 139 F.3d 221 (D.C. Cir. 1998).................................................................... 12 

Chippewa & Flambeau Imp. Co. v. FERC, 325 F.3d 353 (D.C. Cir. 2003)................................. 19 

City of Arlington, Tex. v. F.C.C., 569 U.S. 290 (2013) ................................................................ 17 

Coll. Sports Council v. Dep’t of Educ., 465 F.3d 20 (D.C. Cir. 2006)......................................... 14 

Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254 (D.C. Cir. 2006)..................................... 14 

Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ............................. 21 

Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987)........................................................................... 14 

Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983)................................................... 14, 15 

Ecological Rts. Found. v. U.S. Env’t Prot. Agency, Civ. No. 19-2181, 

2022 WL 4130818 (D.D.C. Sept. 12, 2022).............................................................................. 12 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 6 of 33 

Ex parte McCardle, 74 U.S. 506 (1868)....................................................................................... 12 

FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) ............................................................21-22 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ............................ 10 

Fed. Lab. Rels. Auth. v. U.S. Dep't of Treasury, Fin. Mgmt. Serv., 

884 F.2d 1446 (D.C. Cir. 1989)................................................................................................. 20 

Fogg v. Ashcroft, 254 F.3d 103 (D.C. Cir. 2001) ....................................................................20-21 

GAF Corp. v. United States, 818 F.2d 901 (D.C. Cir. 1985)........................................................ 15 

Hardison v. Alexander, 655 F.2d 1281 (D.C. Cir. 1981).............................................................. 15 

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004)..................................................................... 11 

Keats v. Sebelius, Civ. No. 13-1524, 2019 WL 1778047 (D.D.C. 2019)............................... 21, 22 

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008).............................................................. 11 

Marshall Cnty. Health Care Auth. v. Shalala, 

988 F.2d 1221 (D.C. Cir. 1993)................................................................................................. 12 

Martin v. Dep’t of Justice, 488 F.3d 446 (D.C. Cir. 2007)..................................................... 13, 14 

Nat’l Ass’n of Home Builders v. E.P.A., 786 F.3d 34 (D.C. Cir. 2015)................ 13, 14, 17, 18, 20 

Nat’l Parks Conservation Ass’n v. United States, 

177 F. Supp. 3d 1 (D.D.C. 2016)............................................................................................... 21 

Nat’l Post Office Mail Handlers, Watchmen, Messengers, & 

Grp. Leaders Div. of Laborers’ Int’l Union of 

N. Am. v. Am. Postal Workers Union, 907 F.2d 190 (D.C. Cir. 1990)...................................... 14 

NLRB v. Am. Geri-Care, Inc., 697 F.2d 56 (2d Cir. 1982)........................................................... 21 

Otherson v. Dep’t of Just., I.N.S., 711 F.2d 267 (D.C. Cir. 1983)................................................ 17 

Planned Parenthood of Wisc., Inc. v. Azar, 942 F.3d 512 (D.C. Cir. 2019) ................................ 19 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) ............................................... 12 

Rubin v. The Islamic Republic of Iran, 563 F. Supp. 2d 38 (D.D.C. 2018).................................. 19 

Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (D.C. Cir. 2005) ................................................. 11 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 7 of 33 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)......................................................... 12 

Taylor v. Sturgell, 553 U.S. 880 (2008)........................................................................................ 13 

Underwriters Nat’l Assurance Co. v. N.C. Life & Acc. & Health 

Ins. Guar. Ass’n, 455 U.S. 691 (1982) ...................................................................................... 14 

United States ex rel. Scott v. Pac. Architects & Eng’rs, Inc., 

270 F. Supp. 3d 146 (D.D.C. 2017)........................................................................................... 13 

Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117 (D.D.C. 2011) ....................... 13 

Yamaha Corp. of Am. v. United States, 745 F.Supp. 734 (D.D.C. 1990)..................................... 14 

Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C. Cir. 1992)....................................... 17 

Statutes 

28 U.S.C. § 2462....................................................................................................................... 9, 10 

52 U.S.C. § 30102(e)(l)................................................................................................................... 8 

52 U.S.C. § 30103(a) ...................................................................................................................... 8 

52 U.S.C. § 30104........................................................................................................................... 8 

52 U.S.C. § 30106(b)(1) ................................................................................................................. 2 

52 U.S.C. § 30106(c) .................................................................................................................. 2, 3 

52 U.S.C. § 30106(e) ...................................................................................................................... 2 

52 U.S.C. § 30107(a) ...................................................................................................................... 2 

52 U.S.C. § 30107(a)(6).................................................................................................................. 2 

52 U.S.C. § 30107(a)(7).................................................................................................................. 2 

52 U.S.C. § 30107(a)(8).................................................................................................................. 2 

52 U.S.C. § 30107(e) ...................................................................................................................... 2 

52 U.S.C. § 30108........................................................................................................................... 2 

52 U.S.C. § 30109........................................................................................................................... 2 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 8 of 33 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

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

52 U.S.C. § 30109(a)(4)(A)(i) ........................................................................................................ 3 

52 U.S.C. § 30109(a)(6).................................................................................................................. 2 

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 3 

52 U.S.C. § 30109(a)(8)(A) .................................................................................................. 4, 5, 11 

52 U.S.C. § 30109(a)(8)(C) ............................................................................................................ 4 

52 U.S.C. § 30109(a)(12)(A) ...................................................................................................... 3, 4 

52 U.S.C. § 30109(a)(12)(B) .......................................................................................................... 4 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

52 U.S.C. § 30116........................................................................................................................... 8 

52 U.S.C. § 30125(e) ...................................................................................................................... 8 

52 U.S.C. § 30125(e)(1).................................................................................................................. 5 

52 U.S.C. § 30145(a) ...................................................................................................................... 9 

Rules and Regulations 

Fed. R. App. P. 4(a)(1)(A) .................................................................................................. 7, 16, 19 

Fed. R. Civ. P. 12(b)(1)................................................................................................................. 11 

Fed. R. Civ. P. 12(b)(6)................................................................................................................. 12 

11 C.F.R. § 111.20.......................................................................................................................... 3 

11 C.F.R. § 111.21.......................................................................................................................... 4 

11 C.F.R. § 111.4............................................................................................................................ 2 

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Miscellaneous 

Restatement (Second) of Judgments § 28...................................................................................... 17 

Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) ............................................................................................ 7 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 10 of 33 

INTRODUCTION 

Plaintiffs Campaign Legal Center and Democracy 21 challenge the decision of the 

Federal Election Commission (“FEC” or “Commission”) to dismiss an administrative complaint 

they filed alleging that former Florida Governor John Elias “Jeb” Bush and Right to Rise Super 

PAC, Inc. (“RTR”), violated the Federal Election Campaign Act (“FECA”) by raising and 

spending money that was not subject to FECA’s source and amount limitations in support of 

Bush’s unsuccessful 2016 presidential campaign and by not disclosing certain money raised and 

spent to test the waters of a potential candidacy. The agency actions under review here involve 

an administrative complaint filed more than seven years ago, address underlying activity that 

began three presidential elections ago in 2014, and are well known to this Court from its 

consideration of plaintiffs’ prior lawsuit challenging the Commission’s failure to act. See 

Compl. ¶¶ 64-67; Compl., Campaign Legal Ctr. v. FEC, Civ. No. 20-0730 (D.D.C. Mar. 13, 

2020) (Docket No. 1). In that action, this Court concluded that plaintiffs lacked standing to 

challenge the Commission’s alleged failure to act because they had not established an 

informational injury or any other constitutionally sufficient basis to sue. That was so, this Court 

reasoned, because all the information about Bush’s testing-the-waters activity plaintiffs claimed 

had not been fully disclosed had been. Plaintiffs did not appeal that decision. 

The admittedly long and winding path of Commission consideration of plaintiffs’ 

administrative complaint ended when the agency closed its file on the matter on August 29, 

2022. But that action does not grant plaintiffs a right to a second bite at the standing apple. The 

issue of plaintiffs’ standing was decided in the prior lawsuit, which is preclusive here, and there 

is no basis to revisit it when the underlying facts and law are identical. 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 11 of 33 

Even if plaintiffs could establish constitutional standing to sue, their complaint should 

still be dismissed because the only relief available to them — a remand to the agency — would 

serve no discernible interest. Closing its file in this matter caused the FEC to reveal publicly for 

the first time the reasoning in various Commissioner statements that explain the path this matter 

took at the agency. Those statements reveal that three current Commissioners — enough to 

block any further enforcement on any remand — have indicated that even if they were inclined 

to agree with plaintiffs’ view of what FECA requires, they believe the time for the agency’s 

substantive consideration of this matter has long passed and the statute of limitations indicates 

the Commission should do no more. As such, remanding this matter for further administrative 

proceedings would be a futile exercise. 

BACKGROUND 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES 

The FEC is an independent agency of the United States government with jurisdiction 

over the administration, interpretation, and civil enforcement of FECA. See generally 52 U.S.C. 

§§ 30106(b)(1), 30107(a), 30109. Congress provided for the Commission to “prepare written 

rules for the conduct of its activities,” 52 U.S.C. § 30106(e), “formulate policy” under FECA, 

see, e.g., 52 U.S.C. § 30106(b)(1), and make rules and issue advisory opinions, 52 U.S.C. 

§§ 30107(a)(7), (8); id. §§ 30108; 30111(a)(8); see also Buckley v. Valeo, 424 U.S. 1, 110-11 

(1976) (per curiam). The Commission is also authorized to institute investigations of possible 

violations of FECA, 52 U.S.C. § 30109(a)(1)-(2), and to initiate civil enforcement actions in the 

United States district courts, id. §§ 30106(b)(1), 30107(a)(6), 30107(e), 30109(a)(6). 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the statute. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. § 111.4. The 

Commission’s consideration of such an administrative complaint is governed by detailed 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 12 of 33 

procedural requirements. After reviewing the complaint and any response filed by the 

respondent, the Commission considers whether there is “reason to believe” that FECA has been 

violated. 52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find 

such reason to believe, the Commission may investigate the alleged violation. Id. §§ 30106(c), 

30109(a)(2). 

If the Commission votes to proceed with an investigation, it then must determine whether 

there is “probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i). Like 

a reason-to-believe determination, a determination to find probable cause to believe that a 

violation of FECA has occurred requires an affirmative vote of at least four Commissioners. Id. 

§§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is statutorily required to attempt 

to remedy the violation informally and attempt to reach a conciliation agreement with the 

respondent. Id. § 30109(a)(4)(A)(i). Entering into a conciliation agreement requires an 

affirmative vote of at least four Commissioners and such an agreement, unless violated, operates 

as a bar to any further action by the Commission related to the violation underlying that 

agreement. Id. If the Commission is unable to reach a conciliation agreement, FECA authorizes 

the agency to institute a de novo civil enforcement action in federal district court. Id. 

§ 30109(a)(6)(A). The institution of a civil action under section 30109(a)(6)(A) requires an 

affirmative vote of at least four Commissioners. Id. § 30106(c). 

Absent waiver, proceedings on such complaints are covered by confidentiality 

protections until the Commission “terminates its proceedings.” 11 C.F.R. § 111.20; see 52 

U.S.C. § 30109(a)(12)(A) (“Any notification or investigation made under this section shall not 

be made public by the Commission or by any person without the written consent of the person 

receiving such notification or the person with respect to whom such investigation is made.”); 11 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 13 of 33 

C.F.R. § 111.21. FECA further provides for the imposition of a fine on “[a]ny member or 

employee of the Commission, or any other person, who violates” section 30109(a)(12)(A). 52 

U.S.C. § 30109(a)(12)(B). 

If, at any point in this process, the Commission dismisses an administrative enforcement 

matter, FECA provides the complainant with a narrow cause of action for judicial review of the 

Commission’s dismissal decision. See id. § 30109(a)(8)(A) (detailing the procedure for seeking 

judicial review of an administrative dismissal and the scope of such review). That statutory 

provision also allows a party who has filed an administrative complaint with the Commission to 

bring a civil action in this District alleging that the Commission has “fail[ed] to act” on its 

complaint within 120 days. Id. § 30109(a)(8)(A). 

FECA expressly limits the scope of relief available to a plaintiff challenging an FEC 

dismissal decision or alleging that the Commission has failed to act on an administrative 

complaint. The reviewing court may only (a) declare that the Commission’s failure to act or 

dismissal was “contrary to law” and (b) order the Commission to “conform with” the court’s 

declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C). If the Commission does not conform 

with such an order, the original administrative complainant may bring “a civil action to remedy 

the violation involved.” Id. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

A. Plaintiffs’ Administrative Complaint in MUR 6927 

In 2015, plaintiffs filed and then supplemented an administrative complaint with the 

Commission alleging that Bush and RTR violated certain provisions of FECA in the course of 

Bush’s 2016 presidential bid. Specifically, plaintiffs asserted that Bush had not timely registered 

as a candidate with the Commission or filed required reports disclosing his activities to “test the 

waters” for his presidential campaign, and that he had financed his campaign with “soft money,” 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 14 of 33 

that is, money not subject to FECA’s amount and source limitations. (Compl. ¶ 53.) Plaintiffs 

also alleged that Bush and his agents had established RTR while Bush was holding himself out 

as a federal candidate, which according to plaintiffs violated FECA’s requirement that any entity 

“established, financed, maintained or controlled by or acting on behalf of” a federal candidate 

must abide by FECA’s “limitations, prohibitions, and reporting requirements[.]” 52 U.S.C. § 

30125(e)(1); (see Compl. ¶¶ 58, 62.) The Commission designated plaintiffs’ complaint and its 

supplement as Matter Under Review (“MUR”) 6927. (Compl. ¶ 4 n.3.) 

B. Plaintiffs’ First Lawsuit Alleging Unlawful Delay 

After the Commission took no public action on the administrative complaint, plaintiffs 

filed a lawsuit in this Court in March 2020 alleging that the Commission’s failure to act was 

contrary to law under 52 U.S.C. § 30109(a)(8)(A). (Compl. ¶ 64.) To establish that the 

Commission’s apparent inaction had caused them informational injury, plaintiffs alleged that 

they were entitled to know about “the extent of coordination” between RTR and the Bush 

campaign, and “the extent of Bush’s campaign spending” while he was testing the waters and 

after he had become a candidate.” Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 42 (D.D.C. 

2021) (“CLC I”). Plaintiffs further alleged that they had “suffered organizational injuries . . . 

because inadequate disclosure of federal campaign finance activity diverts funds and resources 

from other organizational needs.” Id. The Commission did not appear through counsel in the 

delay case after authorization to defend the lawsuit did not secure the necessary four votes. 

Certification, MURs 6915 & 6927 (dated Aug. 14, 2020), 

https://www.fec.gov/files/legal/murs/6927/6927_21.pdf. RTR, on the other hand, was granted 

leave to intervene as a defendant. CLC I, at 42. 

RTR challenged plaintiffs’ standing, arguing that it and the Bush campaign fully 

disclosed all the information FECA required. This Court initially concluded that plaintiffs’ 

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allegations were sufficient to plead informational injury because, accepting their view of what 

FECA required to be disclosed and the allegations that Bush had engaged in testing-the-waters 

activity as early as January 2015, there appeared to be “over five months of information” that 

should have been disclosed but was not. CLC I, at 46. 

With the benefit of additional briefing and argument, however, the Court granted RTR’s 

motion to reconsider and concluded that plaintiffs had not met their burden to establish 

informational injury. Campaign Legal Ctr. v. FEC, 578 F. Supp. 3d 1, 580 (D.D.C. 2021) (“CLC 

II”). In connection with that motion, RTR pointed to reports filed by RTR or the Bush campaign 

that revealed significant disbursements for Bush’s activity between July 2014 and June 2015. 

See id. at 581. Some of that information was disclosed as testing-the-waters activity on the Bush 

campaign’s first campaign finance report, while other disbursements were disclosed on RTR’s 

reports because it viewed itself as the beneficiary of Bush’s activity. Id. at 582 & n.3. 

Regardless of how it had been classified, however, the Court concluded that all of the expenses 

that plaintiffs had questioned had been disclosed. Id. at 583. And because plaintiffs had not 

“identified any other pre-candidacy events, travel, or speaking engagements from which the 

Court could infer the existence of still-undisclosed spending,” they had not met their burden of 

establishing informational injury. Id. 

Plaintiffs subsequently moved for reconsideration of the Court’s decision finding 

plaintiffs lacked standing. Campaign Legal Ctr. v. FEC, Civ. No. 20-730 (D.D.C. July 14, 

2022), Docket No. 39 (Memorandum Opinion and Order) (“CLC III”), at 2. Plaintiffs did not 

challenge the Court’s ruling finding plaintiffs had suffered no cognizable informational injury, 

and instead sought only a ruling in the first instance on a theory of organizational standing based 

on organizational injuries caused by the FEC’s delay in acting on their administrative complaint, 

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which the Court had declined to rule on previously. Id. While that motion was pending, 

plaintiffs filed a notice of supplemental authority alerting the Court to a then-recently issued 

decision of the D.C. Circuit, Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022). 

Campaign Legal Ctr. v. FEC, Civ. No. 20-730 (D.D.C. July 14, 2022), Docket No. 37 (Pls.’ 

Notice of Suppl. Auth.). Plaintiffs argued that this supplemental authority “controverts the 

Court’s holding that plaintiffs did not suffer informational injury” based on the Bush campaign’s 

and Right to Rise’s method of reporting Bush’s testing-the-water activity. Id. at 4-5. 

The Court subsequently denied plaintiffs’ motion for reconsideration, finding that 

plaintiffs did not meet the standard for organizational standing under D.C. Circuit precent. CLC 

III, at 4-11. The Court acknowledged plaintiff’s notice of supplemental authority, but found that 

it was relevant solely to “plaintiff’s first theory of standing — informational injury — which 

they specifically did not challenge in the present motion for reconsideration[,]” and therefore 

declined to consider it. Id. The Court noted that “[p]laintiffs are free to raise this argument on 

appeal.” Id. Plaintiffs did not appeal this decision, and the time for plaintiffs’ appeal expired no 

later than Monday, September 12, 2022. See Fed. R. App. P. 4(a)(1)(B). 

C. Commission Consideration of MUR 6927 

On August 29, 2022, after the Court dismissed plaintiffs’ delay suit, the Commission 

voted 4-1 to close the MUR 6927 file. In accordance with Commission policy, documents 

related to this case were placed on the public record 30 days thereafter. See Disclosure of 

Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016). 

That disclosure revealed for the first time the votes the Commission had taken while 

plaintiffs’ delay suit had been pending. In December 2018, the Commission voted on whether, 

based on plaintiffs’ administrative complaint, there was reason to believe either Bush or RTR 

violated FECA. (Compl. ¶¶ 85-86.) First, the Commission voted on whether to find reason to 

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believe that: (1) Bush failed to timely declare his candidacy in violation of 52 U.S.C. 

§ 30102(e)(l), and that the Jeb 2016 committee failed to timely register in violation of 52 U.S.C. 

§§ 30103(a) and 30104; (2) Bush and Jeb 2016 violated 52 U.S.C. § 30116 by accepting 

excessive contributions from RTR Leadership PAC in the period prior to the commencement of 

his official candidacy; and (3) Bush and RTR Super PAC violated the soft money restrictions at 

52 U.S.C. § 30125(e). (Compl. ¶ 85 (citing Certification, MURs 6915 & 6927 (dated Dec. 7, 

2018), https://www.fec.gov/files/legal/murs/6927/6927_15.pdf).) That vote split 2-2, with thenCommissioners Hunter and Petersen dissenting.

1 (Id.) A subsequent vote to find reason to 

believe that Bush had not timely announced his candidacy, timely registered a principal 

campaign committee, and that RTR had made and Bush accepted excessive contributions, but 

take no action on any soft money violations at that time, likewise divided evenly. (Compl. ¶ 86 

(citing Certification, MURs 6915 & 6927 (dated Dec. 14, 2018), 

https://www.fec.gov/files/legal/murs/6927/6927_16.pdf).) But that time, the vote flipped, with 

Commissioner Weintraub and then-Commissioner Walther dissenting. (Id.) Having twice split 

on whether to find reason to believe, the Commission held several votes on whether to close its 

file on the matter between December 2018 and January 2022. Each of these votes failed to 

garner the required four votes for agency action and the matter remained open.2 

1 At the time of the December 2018 votes in this matter, there were only four sitting 

Commissioners out of a maximum of six. 

2 Certification, MURs 6915 & 6927 (dated Dec. 14, 2018), 

https://www.fec.gov/files/legal/murs/6927/6927_16.pdf (December 13, 2018, close-the-file vote 

failed 2-2); Certification, MURs 6915 & 6927 (dated Apr. 9, 2019), 

https://www.fec.gov/files/legal/murs/6927/6927_20.pdf (April 9, 2019, close-the-file vote failed 

2-2); id. (April 9, 2019, motion to close the file and authorize defense of future related litigation 

failed 3-1); Certification, MURs 6915 & 6927 (dated May 8, 2019), 

https://www.fec.gov/files/legal/murs/6927/6927_17.pdf (April 23, 2019, close-the-file vote 

failed 2-0); Certification, MURs 6915 & 6927 (dated May 7, 2019), 

https://www.fec.gov/files/legal/murs/6927/6927_18.pdf (May 7, 2019, close-the-file vote failed 

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In the interim, several departures and appointments occurred at the Commission level, 

changing the makeup of the Commission. The two Commissioners who had voted in 2018 

against finding reason to believe with respect to the soft-money restrictions both departed the 

Commission and did not file any statement of reasons in this matter. (See Compl. ¶ 88.) On 

May 13, 2022, three Commissioners who had not been in office during the initial reason-tobelieve votes — Commissioners Dickerson, Cooksey, and Trainor — placed a Statement of 

Reasons in the file explaining why they had voted to close the file in the matter. (Compl. ¶¶ 97-

101 (citing Statement of Reasons of Chairman Allen Dickerson and Comm’rs Sean J. Cooksey 

and James E. “Trey” Trainor, III (“Dickerson, et al. Statement”), MURs 6915 & 6927 (May 13, 

2022), https://www.fec.gov/files/legal/murs/6927/6927_26.pdf).) Those Commissioners 

declined to take a position on the merits of the votes by their predecessors which lacked the 

required votes to find reason to believe a violation occurred. See Dickerson, et al. Statement. 

They indicated that “[e]ven if [they] disagreed with the Commission’s 2018 decision,” they 

viewed the previous votes as having concluded the matters without enforcement. Id. at 5. As a 

result, and because the “five-year statute of limitations has long passed,” those Commissioners 

“voted to close the file.” Id. at 5 & n.28 (citing 52 U.S.C. § 30145(a) and 28 U.S.C. § 2462). 

2-0); Certification, MURs 6915 & 6927 (dated May 24, 2019), 

https://www.fec.gov/files/legal/murs/6927/6927_19.pdf (May 23, 2019, motion to close the file 

and authorize defense of future related litigation failed 3-1); Certification, MURs 6915 & 6927 

(dated August 14, 2020), https://www.fec.gov/files/legal/murs/6927/6927_21.pdf (June 23, 2020, 

motion to close the file and authorize defense of CLC v. FEC, 20-cv-730 (D.D.C.) failed 2-2); 

Certification, MURs 6915 & 6927 (dated January 13, 2022), 

https://www.fec.gov/files/legal/murs/6927/6927_21.pdf (January 11, 2022, close-the-file vote 

failed 3-3). Two motions to dismiss the case based on prosecutorial discretion also failed, with 

no Commissioner voting in support. Certification, MURs 6915 & 6927 (dated May 24, 2019), 

https://www.fec.gov/files/legal/murs/6927/6927_19.pdf; Certification, MURs 6915 & 6927 

(dated August 14, 2020), https://www.fec.gov/files/legal/murs/6927/6927_21.pdf. 

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On September 30, 2022, Commissioner Weintraub issued a Statement of Reasons 

explaining her position. (Compl. ¶¶ 94-96 (citing Statement of Reasons of Comm’r Ellen L. 

Weintraub (“Weintraub Stmt.”), MURs 6915 & 6927 (Sept. 30, 2022), 

https://www.fec.gov/files/legal/murs/6927/6927_27.pdf).) Because Commissioner Weintraub’s 

vote against the second reason-to-believe vote had the effect of preventing the Commission from 

further enforcement on allegations that Bush had not timely announced his candidacy, registered 

a campaign committee, and that Bush had accepted and RTR had made excessive contributions, 

her statement provides the rationale for the Commission for purposes of judicial review for those 

claims. See FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). 

Commissioner Weintraub explained that she had voted against pursuing those allegations 

because “the only path forward . . . would have been to ignore the much larger and also very 

well-documented” allegations that Bush and RTR had used soft money to advance Bush’s 

presidential campaign, a result that she concluded was “contrary to law.” Weintraub Stmt. at 7. 

Because Commissioner Weintraub’s “colleagues refused to pursue” that allegation, she was 

unwilling to sacrifice the larger violation in pursuit of the smaller. Id. at 9. 

Commissioner Weintraub’s partially controlling statement also disclaimed reliance on 

prosecutorial discretion or statute of limitations. Id. at 6-7. As Commissioner Weintraub 

explained, the statute setting the limitations period on Commission enforcement actions applies 

to “any action, suit, or proceeding for the enforcement of ‘any civil fine, penalty, or forfeiture, 

pecuniary or otherwise.’” Id. at 6 (quoting 28 U.S.C. § 2462 (emphasis omitted)). While 

acknowledging that the Commission “may not impose a civil penalty on a respondent” past the 

five-year statute of limitations, she further stated that FECA “separately gives the Commission 

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the power” to seek other “equitable remedies” such as an order seeking a respondent to “file 

missing reports [or] amend its filings.” Id. at 7. 

D. The Instant Complaint 

On October 28, 2022, plaintiffs filed this instant action alleging that the Commission’s 

August 2022 closure of its file constitutes a dismissal contrary to law. (Compl. ¶¶ 1-2, 85-92.) 

Mirroring their prior court complaint, plaintiffs allege that they “have been deprived of FECArequired disclosure regarding” Bush’s testing-the-waters or campaign activity prior to his official 

announcement and “any in-kind contributions made by [RTR] to Bush’s campaign.” (Id. ¶ 7; see 

id. ¶¶ 21-23.) Plaintiffs bring a single cause of action under 52 U.S.C. § 30109(a)(8)(A). 

(Compl. ¶¶ 104-108.) 

ARGUMENT 

I. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for “lack of jurisdiction 

over the subject matter” of claims asserted in the Complaint. The party claiming subject matter 

jurisdiction bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 

529 F.3d 1112, 1115 (D.C. Cir. 2008). When reviewing a motion to dismiss for lack of subject 

matter jurisdiction, each court has “‘an affirmative obligation to ensure that it is acting within the 

scope of its jurisdictional authority.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004) 

(citation omitted). In evaluating such motions, courts review the complaint liberally and grant 

plaintiffs the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 

370 F.3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over a claim, the 

court may consider materials outside the pleadings. Settles v. U.S. Parole Comm’n, 

429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter 

jurisdiction on a federal court because subject matter jurisdiction is both a statutory requirement 

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Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 21 of 33 

and a constitutional requirement under Article III. Akinseye v. District of Columbia, 

339 F.3d 970, 971 (D.C. Cir. 2003). “The requirement that jurisdiction be established as a 

threshold matter spring[s] from the nature and limits of the judicial power of the United States 

and is inflexible and without exception,” since “[w]ithout jurisdiction the court cannot proceed at 

all in any cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (quoting Ex 

parte McCardle, 74 U.S. 506, 514 (1868)). 

Dismissal of a complaint is appropriate pursuant to Rule 12(b)(6) where, accepting the 

factual allegations in the complaint as true and drawing all reasonable inferences in a plaintiff’s 

favor, the complaint fails as a matter of law to state a claim on which relief can be granted. Fed. 

R. Civ. P. 12(b)(6); Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012) (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). A claim must be dismissed “when the allegations in a complaint, however true, could 

not raise a claim of entitlement to relief.” Bell Atl. Corp., 550 U.S. at 558. 

The court “can take judicial notice [and apply intervening binding precedent] to gauge 

the futility of allowing the current proceedings to drag on into another round.” Checkosky v. 

S.E.C., 139 F.3d 221, 227 (D.C. Cir. 1998). “[W]hen a district court is reviewing agency action 

. . . the legal questions raised by a 12(b)(6) motion and a motion for summary judgment are the 

same.” Ecological Rts. Found. v. U.S. Env’t Prot. Agency, Civ. No. 19-2181, 2022 WL 

4130818, at *4 (D.D.C. Sept. 12, 2022) (citing Marshall Cnty. Health Care Auth. v. Shalala, 988 

F.2d 1221, 1226 (D.C. Cir. 1993).) “[B]ecause a court can fully resolve any purely legal 

question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 12(b)(6) 

stage.” Marshall Cnty. Health Care Auth., 988 F.2d at 1226. In evaluating a motion to dismiss 

for failure to state a claim, “a court may consider ‘the facts alleged in the complaint, documents 

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attached as exhibits or incorporated by reference in the complaint,’ or ‘documents upon which 

the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff 

in the complaint but by the defendant in a motion to dismiss.’” United States ex rel. Scott v. Pac. 

Architects & Eng’rs, Inc., 270 F. Supp. 3d 146, 152 (D.D.C. 2017) (quoting Ward v. D.C. Dep’t 

of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011)). 

II. THIS COURT HAS ALREADY CONCLUDED THAT PLAINTIFFS LACK AN 

INFORMATIONAL OR ORGANIZATIONAL INJURY, WHICH IS 

PRECLUSIVE HERE 

The law regarding issue preclusion is well settled in this Circuit, and precludes successive 

litigation of a decided point of fact or law. After extensive briefing and argument in plaintiffs’ 

prior case, this Court issued no less than three opinions addressing whether plaintiffs have a 

cognizable injury-in-fact to pursue a claim challenging the Commission’s handling of its 

administrative complaint. The Court ultimately concluded that plaintiffs lack standing to pursue 

such a claim. That decision is final and precludes revisiting the issue in this or any other 

proceeding. 

A. Issue Preclusion, or Collateral Estoppel 

“The doctrine of issue preclusion, or collateral estoppel, bars successive litigation of an 

issue of fact or law actually litigated and resolved” that was “essential to the prior judgment, 

even if the issue recurs in the context of a different claim.” Nat’l Ass’n of Home Builders v. 

E.P.A., 786 F.3d 34, 41 (D.C. Cir. 2015) (“Home Builders”) (quoting Taylor v. Sturgell, 553 U.S. 

880, 892 & n.5 (2008)); see also Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007). 

The doctrine serves to “protect against ‘the expense and vexation attending multiple lawsuits, 

conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the 

possibility of inconsistent decisions.’” Home Builders, 786 F.3d at 41. 

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Three elements must be satisfied for a final judgment to preclude litigation of an issue in 

a subsequent case: “[1], the same issue now being raised must have been contested by the parties 

and submitted for judicial determination in the prior case[; 2] the issue must have been actually 

and necessarily determined by a court of competent jurisdiction in that prior case[; and] [3] 

preclusion in the second case must not work a basic unfairness to the party bound by the first 

determination.” Canonsburg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8, 16-17 (D.D.C. 2013) 

(brackets in original) (quoting Martin, 488 F.3d at 454). Notably, “[a] court conducting an issue 

preclusion analysis does not review the merits of the determinations in the earlier litigation.” Id. 

at 17 (quoting Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254, 1257 (D.C. Cir. 2006)) 

(citing Nat’l Post Office Mail Handlers, Watchmen, Messengers, & Grp. Leaders Div. of 

Laborers’ Int’l Union of N. Am. v. Am. Postal Workers Union, 907 F.2d 190, 194 (D.C. Cir. 

1990) (“The doctrine of issue preclusion counsels us against reaching the merits in this case, 

however, regardless of whether we would reject or accept our sister circuit’s position.”); Yamaha 

Corp. of Am. v. United States, 745 F.Supp. 734, 738 (D.D.C.1990) (noting the D.C. Circuit’s 

instruction “that collateral estoppel prevents a court from ever reaching the merits”)). 

Issue preclusion applies to threshold jurisdictional issues like standing as well as issues 

going to the merits of a case. Home Builders, 786 F.3d at 41 (citing Underwriters Nat’l 

Assurance Co. v. N.C. Life & Acc. & Health Ins. Guar. Ass’n, 455 U.S. 691, 706 (1982); Coll. 

Sports Council v. Dep’t of Educ., 465 F.3d 20, 22–23 (D.C. Cir. 2006); Dozier v. Ford Motor 

Co., 702 F.2d 1189, 1191 (D.C. Cir. 1983)). With respect to jurisdictional dismissals, issue 

preclusion “will not bar relitigation of the cause of action originally asserted,” but it “may 

preclude . . . relitigation of the precise issues of jurisdiction adjudicated.” Id. (quoting Cutler v. 

Hayes, 818 F.2d 879, 888 (D.C. Cir. 1987)). Therefore, “a second complaint cannot command a 

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second consideration of the same jurisdictional claims.” Id. (quoting GAF Corp. v. United 

States, 818 F.2d 901, 912 & n.72 (D.C. Cir. 1987)). 

Issue preclusion is subject to the “curable defect” exception, which permits relitigation of 

jurisdictional dismissals when a “‘precondition requisite’ to the court’s proceeding with the 

original suit was not alleged or proven, and is supplied in the second suit.” Id. (citing Dozier, 

702 F.2d at 1192). However, the “precondition requisite” must identify “occurrences subsequent 

to the original dismissal” that “remed[y] . . . the jurisdictional deficiency.” Id. The exception 

permits litigants whose claims were dismissed on jurisdictional grounds to establish jurisdiction 

in a subsequent case only if a material change following dismissal cured the original 

jurisdictional deficiency. Id. (citing Dozier, 702 F.2d at 1192 & n.5, 1193 n.7). That limitation 

prevents the “curable defect” exception from undermining the preclusive effect of issues already 

fairly and finally determined in prior litigation. Id. (citing Dozier, 702 F.2d at 1192-94). 

Furthermore, “in a small set of cases, a change in controlling legal principles may allow a 

party to relitigate a claim that would otherwise be barred by res judicata.” Apotex, Inc. v. Food 

& Drug Admin., 393 F.3d 210, 218 (D.C. Cir. 2004) (citing Hardison v. Alexander, 655 F.2d 

1281, 1288–89 (D.C. Cir. 1981) (stating that in general res judicata applies even if there has been 

a subsequent change in the law of the circuit, but noting that there are exceptions for reasons of 

compelling public policy, such as cases involving important questions of constitutional law)). 

To constitute a sufficient shift in the legal landscape to make application of issue preclusion 

unfair there must be a “significant change in controlling law.” Canonsburg, 989 F. Supp. 2d at 

20 (citing Apotex, 393 F.3d at 218); see Hardison, 655 F.2d at 1288 (noting that only “on rare 

occasions [have] the courts . . . been willing to override the bar of res judicata for reasons of 

compelling public policy”). 

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B. This Court’s Prior Holding on Plaintiffs’ Standing Meets All Criteria for 

Issue Preclusion 

In 2021 this Court held that plaintiffs lacked standing to challenge the Commission’s 

alleged failure to act on their administrative complaint, MUR 6927. CLC II, at 584 (“Having 

found a lack of standing, the Court will dismiss the case for want of jurisdiction.”) The issue 

was fully briefed and litigated by the parties in that case over a period of more than two years, 

and determined by a valid, final judgment of the Court. Under binding precedent of this Circuit 

plaintiffs are barred from re-litigating that issue in this or any other proceeding. 

First, plaintiffs’ standing was clearly “contested by the parties and submitted for judicial 

determination in the prior case.” Canonsburg, 989 F. Supp. 2d at 16-17. This precise issue was 

the primary focus of litigation for over two years between March 2020 and the Court’s final 

judgment in July 2022. See supra pp. 5-7. Defendant-Intervenor RTR challenged plaintiffs’ 

standing at the outset of that matter, resulting in a mixed verdict in which the Court found 

plaintiffs did not have standing to seek a determination from the FEC that certain of RTR and 

Bush’s expenditures were “coordinated,” but did have standing regarding respondents’ alleged 

failure to disclose spending during the testing-the-waters phase preceding Bush’s candidacy. 

CLC I, at 45-48. The Court then reversed itself and granted RTR’s motion for reconsideration, 

finding that plaintiffs did not identify any additional “pre-candidacy events, travel, or speaking 

engagements from which the Court could infer the existence of still-undisclosed spending[.]” 

CLC II, at 583. Finally, the Court then denied plaintiffs’ motion for reconsideration, finding that 

plaintiffs did not meet the standard for organizational standing (the sole issue raised in that 

motion) under D.C. Circuit precent. CLC III, at 4-11. Plaintiffs did not appeal this final ruling, 

and the decision became final on or before September 12, 2022. See Fed. R. App. P. 4(a)(1)(B). 

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Nor can plaintiffs dispute that their standing was “actually and necessarily determined by 

a court of competent jurisdiction in that prior case.” Canonsburg, 989 F. Supp. 2d at 17. As 

noted, plaintiffs’ lack of standing was the sole reason for the Court’s dismissal of its complaint. 

CLC II, at 584 (“Having found a lack of standing, the Court will dismiss the case for want of 

jurisdiction.”) 

Finally, preclusion in this case would not work a “basic unfairness” to plaintiffs, the 

parties “bound by the first determination.” Canonsburg, 989 F. Supp. 2d at 17. In examining 

“unfairness” for the purposes of issue preclusion, the D.C. Circuit has been primarily concerned 

with whether “the losing party clearly lacked any incentive to litigate the point in the first trial, 

but the stakes of the second trial are of a vastly greater magnitude.” Canonsburg, 989 F. Supp. 

2d at 18–19 (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 

1992)). Here, as detailed supra pp. 5-7, plaintiffs plainly had incentive to defend their standing 

to bring their own claims and did so earnestly over an extended period. 

Even assuming the Court’s prior determination was “patently erroneous,” this “is not 

alone sufficient” to avoid its preclusive effect. Canonsburg, 989 F. Supp. 2d at 19 (citing 

Otherson v. Dep’t of Just., I.N.S., 711 F.2d 267, 277 (D.C. Cir. 1983); Restatement (Second) of 

Judgments § 28 comment j); see City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297 (2013) (“A 

court’s power to decide a case is independent of whether its decision is correct, which is why 

even an erroneous judgment is entitled to res judicata effect.”). 

C. None of the Exceptions to Issue Preclusion Apply 

Where issue preclusion applies, it may be overcome only upon a showing of either (1) a 

material and subsequent change in the pertinent facts, or (2) a “significant change in controlling 

law.” Canonsburg, 989 F. Supp. 2d at 20; Home Builders, 786 F.3d at 41. Neither applies here. 

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First, plaintiffs offer no new facts that could call the Court’s original holding into doubt. 

Just as with its first complaint alleging unlawful delay, here plaintiffs allege injury 

because they, as well as the public, have been deprived of FECA-required 

disclosure regarding: (1) Bush’s “testing the waters” and/or campaign expenditures 

in the period prior to his official declaration of candidacy in June 2015; and (2) the 

dates, amounts and purposes of any in-kind contributions made by RTR Super PAC 

to Bush’s campaign arising from the extensive involvement of Bush and his agents 

in RTR’s formation and operations, and the possible coordination of their activities. 

(Compl. ¶ 7.) Critically, the period during which all of the relevant reporting (or alleged lack 

thereof) occurred ran from May of 20143 until Bush suspended his campaign in February of 

2016.4 That reporting was available to the Court when it found plaintiffs lacked standing in 

2021, as was all information regarding how plaintiffs were harmed (which is in any case in 

plaintiffs’ possession). Furthermore, even if plaintiffs could offer additional evidence to 

“remed[y] . . . the jurisdictional deficiency[,]” this evidence would be of no moment unless it 

involved “occurrences subsequent to the original dismissal[.]” Home Builders, 786 F.3d at 41. 

Nor has there been any “change in controlling law[,]” much less a change that is 

“significant[.]” Canonsburg, 989 F. Supp. 2d at 20. While plaintiffs’ motion for reconsideration 

of the Court’s holding in the initial proceeding was pending, plaintiffs filed a notice of 

supplemental authority alerting the Court to the D.C. Circuit Court of Appeals’ holding in 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) (“Correct the Record”). See supra 

pp. 6-7. However, that decision did not alter the controlling law, and cannot overcome issue 

preclusion in this case. The Correct the Record court was explicit that the district court there had 

3 (Compl. ¶ 71 (noting that “OGC found that Bush began spending funds to test the 

waters of a 2016 presidential candidacy in May 2014”).) 

4 Jordan Frasier, Jeb Bush Suspends 2016 Presidential Campaign, NBC News (Feb. 21, 

2016), https://www.nbcnews.com/politics/2016-election/jeb-bush-ends-2016-presidentialcampaign-n522831. 

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misapplied “settled law,” and made no pretensions to overrule or modify precedent in this 

Circuit. See Correct the Record, at 793 (finding that “the Intervenors’ approach runs contrary to 

settled law”); id. at 783 (“The law is settled that a denial of access to information qualifies as an 

injury in fact[.]”); see also Canonsburg, 989 F. Supp. 2d at 21 (finding plaintiff had not 

demonstrated that its cited authority represented a change in the law, in part because the court in 

the opinion cited by plaintiff “did not suggest that the ruling . . . was breaking any new ground”). 

In any event, plaintiffs could have — and indeed did — bring Correct the Record to the 

Court’s attention while that case was pending. Correct the Record was decided on April 19, 

2022, nearly three months before this Court’s denial of plaintiffs’ motion for reconsideration in 

the delay case on July 14, 2022, and nearly five months before plaintiffs’ time for appeal expired 

on September 12, 2022. See Fed. R. App. P. 4(a)(1)(B). Parties who have previously received 

adverse opinions routinely request relief in circumstances like this, including in cases that have 

become moot. See, e.g., Planned Parenthood of Wisc., Inc. v. Azar, 942 F.3d 512, 519 (D.C. Cir. 

2019) (noting D.C. Circuit’s “general practice” to “vacate and remand with instructions to 

dismiss” when “a pending appeal becomes moot”); Rubin v. The Islamic Republic of Iran, 563 F. 

Supp. 2d 38, 40 (D.D.C. 2018) (explaining that mootness provides a reason to grant relief from 

judgment). While that prior case remained open, plaintiffs could have sought additional review 

based on Correct the Record, or at a minimum sought vacatur of the Court’s standing decision. 

Plaintiffs did neither. 

There is, therefore, no basis to conclude that any change in the law occurred subsequent 

to this Court’s dismissal of plaintiffs’ delay claim, and no basis for revisiting the Court’s 

standing analysis in that case. See, e.g., Chippewa & Flambeau Imp. Co. v. FERC, 325 F.3d 

353, 356 (D.C. Cir. 2003) (change in legal definition “subsequently adopted by the Supreme 

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Court”); Fed. Lab. Rels. Auth. v. U.S. Dep't of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446, 1456 

(D.C. Cir. 1989) (subsequent Supreme Court decision constituted an “intervening change in legal 

principles”) (quotations and citations omitted). This is consistent with the principle that only 

factual occurrences “subsequent to the original dismissal” may constitute grounds to overcome 

issue preclusion. Home Builders, 786 F.3d at 41. 

Because there has been no change in either the law or the facts underlying the Court’s 

decision, plaintiffs are precluded from relitigating their standing to pursue their claim. 

III. THIS COURT SHOULD NOT ORDER A FUTILE REMAND 

Assuming jurisdiction, the Court should dismiss this action because three Commissioners 

have indicated that they view the matter as long settled and expressed concerns related to the 

statute of limitations. See supra pp. 9-10. Under these circumstances, a remand would serve no 

purpose other than necessitating yet another round of administrative proceedings, but the 

outcome of agency consideration of enforcement is preordained. 

This administrative matter has had an unusually long lifespan. Plaintiffs filed their first 

administrative complaint on March 31, 2015. (Compl. ¶ 3.) Since that date MUR 6927 has been 

subject to at least eight Commissioner votes. See supra pp. 7-9. During that span, five new 

Commissioners have been seated, and three Commissioners who did not vote on the agency’s 

initial, substantive consideration of the matter later filed a statement explaining their reasoning 

for opposing revisiting the case in the recent period. See supra pp. 9-10. There are thus 

considerably more changed circumstances and more information about the status at the agency in 

the period after a reviewed vote than in the ordinary event when a court considers remanding a 

potential enforcement matter. 

Even assuming the Commissioners who originally voted against enforcement on the softmoney allegations in December of 2018 made an error in not explaining their reasoning, a 

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remand is not required when the “remand would be futile.” Fogg v. Ashcroft, 254 F.3d 103, 111 

(D.C. Cir. 2001). Here, three Commissioners — a sufficient number to vote down any reason to 

believe vote on remand — have released a statement explaining that they “take no position on 

the merits of” the prior Commission votes in which reason to believe was not found against 

RTR, but viewed these votes as “the end of these Matters,” particularly given their concerns 

regarding “the elapsed statute of limitations,” and hence committed to vote “to close the file.” 

Dickerson, et al. Statement at 5. Declining to commence enforcement when “Commissioners 

[a]re concerned that the statute of limitations had expired or was about to” is a routine ground for 

choosing to dismiss and would be obviously within the discretion of Commissioners in the event 

of any remand. E.g., Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434, 438 (D.C. Cir. 

2018). 

In light of that statement, any remand to the agency would only needlessly prolong this 

stale matter. See Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 35-36 n.10 

(D.D.C. 2016) (applying futility principles after more than six years). There is “not the slightest 

doubt that the” three Commissioners issuing that statement “would simply reaffirm” the 

reasoning in their prior statement on the matter. NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 

(2d Cir. 1982). Because the “outcome of a new administrative proceeding is preordained,” this 

Court “may forego the futile gesture of remand to the agency.” Keats v. Sebelius, Civ. No. 13-

1524, 2019 WL 1778047, at *7 (D.D.C. Apr. 23, 2019) (internal quotation marks omitted) 

(finding remand likely futile where intervening events made obvious how agency would handle a 

required review that may have been missed). 

In an analogous situation in FEC v. Legi-Tech, Inc., the D.C. Circuit considered whether 

to remand administrative matters to the FEC after it was reconstituted without ex-officio 

21 
 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 31 of 33 

members. 75 F.3d 704, 706 (D.C. Cir. 1996). The Court concluded that a later ratification of 

earlier actions was adequate because it was unlikely that FEC would reach different outcome if it 

repeated administrative process from beginning. Id. at 709. The same is true here, where the 

record shows that the agency would not reach a different outcome. The approach of three 

current Commissioners to the passage of more than seven years since the complaint was lodged 

with the agency and eight years since the conduct giving rise to the complaint occurred means 

that the outcome of additional votes by the agency on proceeding with enforcement is 

preordained. Accordingly, the district court should forego “the futile gesture of remand to the 

agency.” Keats, 2019 WL 1778047 at *7 (citations omitted). There is no need for a remand 

when a sufficient number of Commissioners to control the outcome have clearly expressed their 

view that the time for substantive agency consideration has passed. 

CONCLUSION 

For the foregoing reasons, plaintiffs’ complaint should be dismissed in its entirety. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

22 
 

 

Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 32 of 33 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 13, 2023 (202) 694-1650 

23 
 

 

 

Case 1:22-cv-03319-CRC Document 12 Filed 01/13/23 Page 33 of 33 

CERTIFICATE OF SERVICE 

I hereby certify that on January 13, 2023, I served the foregoing pursuant to Fed. R. Civ. 

P. 5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

24