IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 19-cv-2753-RCL

REPLY IN SUPPORT OF

STATEMENT OF INTEREST 

OF THE UNITED STATES OF AMERICA

JEFFREY BOSSERT CLARK 

Acting Assistant Attorney General 

ERIC WOMACK

Assistant Branch Director 

ZACHARY A. AVALLONE

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W.

Washington, D.C. 20005 

Tel: (202) 514-2705

Case 1:19-cv-02753-RCL Document 15 Filed 01/04/21 Page 1 of 10
Pursuant to the Court’s December 21, 2020 Order, ECF No. 14, the Department of Justice 

(“Department”) respectfully files this Reply in support of its Statement of Interest (“Reply”) on 

behalf of the United States. 

As the Court noted in its Order, three more Commissioners were confirmed to the Federal 

Election Commission (“the Commission”), bringing the total to six.1

 The Commission now has 

enough Commissioners to authorize its General Counsel to appear and defend this case or to ask 

the Department of Justice to appear and defend this case on the Commission’s behalf. See 52 

U.S.C. § 30107(a)(6) & (a)(8). Should the Commission seek to appear in this case, the Department 

would defer to the arguments and positions taken by the Commission. 

Since the Court has directed the United States to reply to Plaintiffs’ Response to 

Department of Justice’s Statement of Interest (“Response”), ECF No. 13, the Department 

respectfully submits this reply to explain why Plaintiffs Citizens for Responsibility and Ethics in 

Washington (“CREW”) and Noah Bookbinder lack standing.

ARGUMENT

I. PLAINTIFFS LACK STANDING BASED ON THE ALLEGED DELAY IN 

THE FEC’S CONSIDERATION OF THEIR PETITION

Plaintiffs have failed to show that they have suffered a concrete and particularized injury 

caused by the Commission’s purported delay in acting on their administrative complaint. This is, 

after all, a case solely about that delay. See Compl. ¶ 1, ECF No. 1. Plaintiffs seek a declaration 

that the Commission’s delay was unlawful and an order requiring the Commission “to act on the 

Complaint within 30 days,” id. at 19. Plaintiffs do not ask the Court to rule on the legal arguments 

 1 FEC Press Release “Shana Broussard, Sean Cooksey, Allen Dickerson sworn in as 

Commissioners” (Dec. 18, 2020) available at https://www.fec.gov/updates/shana-broussard-seancooksey-allen-dickerson-sworn-commissioners/. 

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of its administrative complaint, do not ask the Court to rule that any third party violated the Federal 

Election Campaign Act, 52 U.S.C. § 30101 et seq. (“FECA”), and do not seek relief requiring the 

disclosure of any information. Id. To show standing, Plaintiffs must therefore demonstrate how 

the additional time it has taken the Commission to consider their administrative complaint has 

caused them to suffer a concrete and particularized injury. And they must show how any alleged 

harm caused by the purported delay will be remedied by a court ordering the Commission to act 

on their administrative complaint. Thus, the important question here is whether Plaintiffs have

articulated harm arising from the delay itself. 

Plaintiffs’ Response largely ignores that question. Instead, Plaintiffs act as though the 

Commission has already denied their administrative complaint. The Response focuses on 

inapposite authority from cases where the Commission had already dismissed plaintiffs’ 

administrative complaints, where plaintiffs subsequently challenged those dismissals in federal 

court, and where the requested remedy would require disclosure of the sought-after information. 

The difficulty with ignoring the nature of this case as one of delay, rather than denial, is 

that it sheds no light on Plaintiffs’ assertion of standing in this specific context. Indeed, Plaintiffs 

seem not to contest the fact that the Commission’s delay in taking action on their administrative 

complaint is insufficient alone to confer standing. Response at 7. Plaintiffs also do not dispute 

that under binding Circuit precedent, Section 30109(a)(8)(A) “does not confer standing; it confers 

a right to sue upon parties who otherwise already have standing.” Common Cause v. FEC, 108 

F.3d 413, 419 (D.C. Cir. 1997) (emphasis added). Thus, as courts in this Circuit have held, the 

“FEC’s failure [to] act within the 120-day period of [§ 30109(a)(8)(A)] . . . did not . . . confer 

standing.” Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 48 (D.D.C. 2003) (citation omitted).

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Since delay alone is not enough to demonstrate standing, a plaintiff must plead an actual 

harm from the delay that will be remedied by an order forcing the Commission to act on its 

administrative complaint. The “irreducible constitutional minimum of standing” requires a 

“concrete and particularized” injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Thus, 

in the present context, to assert an injury from delay sufficient for standing, Plaintiffs must show 

concrete and particularized harm arising from an inability to access the sought-after information 

while the Commission considers the administrative complaint. Plaintiffs must also show how 

forcing the Commission to consider its complaint is “‘likely,’ as opposed to merely ‘speculative,’” 

to redress any harm from the delay. Id. at 561.

In another recent case, a similar failure to plead harm from delay resulted in dismissal. 

Campaign Legal Ctr. v. FEC, No. 18-CV-0053 (TSC), 2020 WL 2735590, at *2 (D.D.C. May 26, 

2020) appeal docketed, No. 20-5159 (D.C. Cir. June 9, 2020). Plaintiffs do not attempt to 

distinguish that case in their Response even though the parallels are striking. After waiting a year 

for the FEC to act on their administrative complaint, the plaintiff, CLC, sued the FEC “arguing 

that the delay violated [§ 30109(a)(8)(A)’s] 120-day rule[.]” Id. at *1. The court dismissed the 

case for lack of standing because the delay alone was not sufficient for standing and CLC did not 

plead any injury from the delay. Id. at *2.

Plaintiffs do not explain how this current case is any different or requires a different result. 

Instead, they argue that “plaintiffs can establish Article III injury-in-fact based on the denial of 

information to which they are entitled.” Response at 7. But, of course, Plaintiffs have not been 

denied any information—they submitted an administrative complaint to the Commission and are

waiting for the Commission to act. The Commission has not denied or dismissed the 

administrative complaint. As such, rather than “ignor[ing] the binding case law of informational 

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injury” like FEC v. Akins, 524 U.S. 11, 21 (1998) and Campaign Legal Center and Democracy 21 

v. FEC, 952 F.3d 352, 354 (D.C. Cir. 2020), the United States did not address them because they 

do not control the outcome here. Response at 7. The courts in those cases analyzed standing after 

the Commission denied an administrative complaint—not where a party filed a lawsuit to spur the 

Commission into action. Akins, 524 U.S. at 18 (“The FEC consequently dismissed respondents’

complaint.”); Campaign Legal Center and Democracy 21, 952 F.3d at 354 (“The Federal Election 

Commission dismissed three administrative complaints alleging violations of the Federal Election 

Campaign Act's disclosure requirements.”).

Plaintiffs are incorrect to suggest that they do not need to show an injury arising from the 

delay itself. Response at 9. The cases they cite for that proposition either do not involve delay, 

see Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 615–16 (D.C. Cir. 2006) (plaintiff 

suffered cognizable injury when issued a passport that listed place of birth as “Jerusalem” instead 

of “Jerusalem, Israel”); Common Cause, 108 F.3d at 415 (FEC dismissed administrative 

complaints), found a lack of standing on other grounds, see Free Speech for People v. FEC, 442 

F. Supp. 3d 335, 343–45 (D.D.C. 2020) (no standing); Judicial Watch, 293 F. Supp. 2d at 45–48 

(no standing), or involved cases where the plaintiff actually alleged harm arising from the delay 

itself, see Air Alliance Houston v. U.S. Chemical and Safety Hazard Investigation Board, 365 F. 

Supp. 3d 118, 122 (D.D.C. 2019) (finding standing in case alleging delay when plaintiffs alleged 

“exposure to ‘high levels of toxic air,’ due to delays in the release of chemical accident 

information”). No cases cited by plaintiffs contradict the requirement that in a case alleging delay, 

plaintiffs must allege an injury arising from that delay in order to have standing in cases such as 

the present.

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Plaintiffs here allege only speculative harms arising from the Commission’s alleged delay. 

Plaintiffs allege that waiting for the Commission’s final determination might “hamper [CREW’s] 

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

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

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

documents and witnesses.” Compl. ¶¶ 56–57 (emphasis added). Plaintiffs do not dispute the 

argument that such speculative fears of injury cannot establish standing. See Response at 8. 

To the extent Plaintiffs now assert additional informational2 or programmatic injuries, 

Plaintiffs fail to cite allegations in their complaint linking those purported injuries to the 

Commission’s delay in acting on their administrative complaint. Even cases cited by Plaintiffs 

underscore that Plaintiffs’ purported harm must be linked to the delay. In the key case they rely 

on for organizational injury, the court held PETA had standing because it alleged specific 

organizational harm arising from the delay: PETA had “adequately shown that the USDA’s 

inaction injured its interests and, consequently, PETA has expended resources to counteract those 

injuries.” See People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 

1094 (D.C. Cir. 2015). There are no similar allegations in this case—CREW has not linked its 

purported organizational harm to the delay and has not identified any resources that it has expended 

to counteract those supposed injuries from delay. Other cited cases involved denial or dismissal, 

 2 While the Statement discussed potential arguments that Plaintiffs could have raised about an 

informational injury arising from the delay, Statement at 8–9, ECF No. 11, Plaintiffs’ complaint 

alleges no harm from delay other than speculative harm discussed above. Plaintiffs’ Response 

does not ask the court to infer any other informational harm specifically arising from the alleged 

delay. If Plaintiffs had alleged informational harm arising from the delay, they must satisfy the 

jurisdictional standards described in the Statement. See id.

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and thus do not support CREW’s argument that it can show standing without a specific harm 

arising from the Commission’s purported delay. See CREW v. FEC, 243 F. Supp. 3d 91, 93 

(D.D.C. 2017) (an action “challenging the FEC’s dismissal of the plaintiffs’ administrative 

complaint”); Havens Realty Corp. v. Coleman, 455 U.S. 363, 375 (1982) (discussing “the denial 

of the tester’s own statutory right to truthful housing information caused by misrepresentations to 

the tester”). 

Finally, Plaintiffs do not dispute that if they lack standing, the Court did not have 

jurisdiction to enter judgment against the Commission. Plaintiffs here suffered no cognizable 

injury, lack Article III standing, and are thus not entitled to default judgment. The Court should 

vacate the default judgment and dismiss the case.

II. THE COURT SHOULD CONSIDER THE STATEMENT

The Department has statutory authority to submit a statement of interest in this case. 

Congress in 28 U.S.C. § 517 granted the Department broad authority to “attend to the interests of 

the United States.” The plain text of the statute provides three separate grants of authority: 1) “to 

attend to the interests of the United States in a suit pending in a court of the United States,” 2) “to 

attend to the interests of the United States in a suit pending . . . in a court of a State,” and 3) “to 

attend to any other interest of the United States.” Id. (emphasis added). Even if the plaintiffs are 

correct that the term “pending” in the statute applies to proceedings before a court issues default 

judgment, which they are not, Congress still authorized the Department “to attend to any other

interest of the United States” without limitation to the forum or status of the dispute. See, e.g., 3 

Op. O.L.C. 226 (1979) (concluding that the statute authorized the Department to participate in 

arbitrations even though “[a]n arbitration proceeding is not, strictly, a suit pending in any court”); 

Response at 5 n.2 (citing Statement of Interest, Media Gen. Operations, Inc. v. Schurz Comm. Inc., 

No. 116-CV-26-JRH-BKE, 2016 WL 930580 (FCC Rcd. Mar. 9, 2016)). 

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Plaintiffs’ suggestion that this Court’s consideration of the Statement would lead to a 

parade of horribles is also misguided. The Statement does not seek to reopen any close cased. 

Instead, the Statement raises important threshold issues that have not been raised by any party and 

asks this Court to revisit its own entry of default judgment based on jurisdictional concerns that 

no party has raised and this Court has an independent obligation to address. See Statement at 12 

(“th[is] Court should vacate its judgment and dismiss this case”) (emphasis added). As this Court 

is well aware, asking a court to revisit its own judgment is explicitly permitted under the Federal 

Rules of Civil Procedure. Fed. R. Civ. P. 60.

The plaintiffs have also not demonstrated United States’ Statement of Interest was

untimely. Plaintiffs do not dispute that there is “no time limit on an attack upon a void judgment.” 

Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962); see also Fed. R. Civ. P. 60 (no time limit on 

motion for relief from a void judgment). This Court can, of course, choose not to consider the 

Statement in its discretion to control its own docket, U.S. ex rel. Gudur v. Deloitte Consulting LLP, 

512 F. Supp. 2d 920, 927 (S.D. Tex. 2007), but the timing of the Statement does not render it 

invalid.

Plaintiffs also do not articulate any prejudice from the Court considering the Statement or 

the important questions about its jurisdiction over this case. For example, CREW alleges that it 

“ha[d] the right to bring a civil action in its own name to remedy the violations alleged in [its 

administrative] complaint” after this court issued its judgment. Compl. ¶ 68. But despite the time 

that has passed since the default judgment was entered, CREW never claims it initiated any other

civil action based the allegations from its administrative complaint. In fact, Plaintiffs have not 

identified any action that they have undertaken in reliance on the default judgment. The time that 

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has passed since the default judgment has not prejudiced plaintiffs and is no reason to ignore the 

important jurisdictional questions raised by the Statement.

CONCLUSION

For the foregoing reasons and those in the Statement of Interest, the Department 

respectfully suggests that plaintiffs have failed to establish standing to sue and that the Court 

should vacate its default judgment, dismissing this case in its entirety.

Dated: January 4, 2021 Respectfully submitted,

JEFFREY BOSSERT CLARK 

Acting Assistant Attorney General 

ERIC WOMACK

Assistant Branch Director 

/s/ Zachary A. Avallone

ZACHARY A. AVALLONE 

(D.C. Bar No. 1023361) 

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W.

Washington, D.C. 20005 

Tel: (202) 514-2705

Email: zachary.a.avallone@usdoj.gov

Case 1:19-cv-02753-RCL Document 15 Filed 01/04/21 Page 9 of 10
CERTIFICATE OF SERVICE

I hereby certify that on January 4, 2021, I electronically filed the foregoing document 

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

filing to attorneys who have appeared in this case.

/s/ Zachary A. Avallone

Zachary A. Avallone

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