UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

 

Case No. 22-cv-3281 (CRC) 

MEMORANDUM OPINION AND ORDER 

The eleven-year history of this case encapsulates the bureaucratic morass that has become 

the Federal Election Commission (“FEC” or “Commission”). In 2012, Plaintiff Citizens for 

Responsibility and Ethics in Washington (“CREW”) filed an administrative complaint with the 

Commission, alleging that Intervenor American Action Network’s (“AAN”) expenditures on 

political advertisements during the 2010 midterm election cycle rendered it an unregistered 

political committee. In 2014, the FEC dismissed CREW’s complaint. CREW petitioned this 

Court for review. And this Court remanded. In 2016, the FEC dismissed CREW’s complaint 

again on remand. CREW again petitioned this Court for review. And, in 2018, this Court again 

remanded. After the FEC failed to act on the remand, CREW sued AAN directly, as it was 

permitted to do under the Federal Election Campaign Act (“FECA”). But because the FEC’s 

initial decision dismissing CREW’s administrative complaint invoked, in passing, the 

Commission’s prosecutorial discretion, this Court held in 2022 that CREW’s latest complaint 

against AAN must be dismissed. 

Meanwhile, following the second remand in 2018, CREW’s administrative complaint sat 

dormant before the agency for four years. Finally, in August 2022, the FEC voted for a third 

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time to close the file and issued a letter to CREW informing it of its right to petition this Court 

for review once more. CREW did so, and the FEC and AAN have now move to dismiss 

CREW’s latest petition. The Court will deny the motions. 

First, because CREW’s complaint alleges a cognizable informational injury, the Court 

rejects AAN’s argument that CREW lacks standing to sue. Next, the Court concludes that 

CREW brought this action within 60 days of the FEC’s dismissal of its administrative complaint. 

Although the FEC deadlocked on a vote to initiate enforcement proceedings against AAN years 

ago, the Court holds that the Commission did not “dismiss” CREW’s complaint under the statute 

until it closed the casefile last fall. Next, the Court rejects the FEC’s contention that any remand 

here would be futile. Finally, at least for now, the Court defers consideration of AAN’s

argument that the FEC’s invocation of its prosecutorial discretion to dismiss CREW’s complaint 

in 2014 renders non-reviewable the FEC’s current dismissal, which disclaims any reliance on 

prosecutorial discretion. Because the D.C. Circuit may address that question in its review of 

CREW’s appeal of this Court’s dismissal of its citizen suit against AAN, the Court will stay this 

case pending the outcome of that appeal. 

I. Background 

The extensive history of this case has already been recounted in four prior opinions. See 

CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77 (D.D.C. 2016); CREW v. FEC (“CREW II”), 

299 F. Supp. 3d 83 (D.D.C. 2018); CREW v. AAN (“CREW III”), 410 F. Supp. 3d 1 (D.D.C. 

2019); CREW v. AAN (“CREW IV”), 590 F. Supp. 3d 164 (D.D.C. 2022). The Court provides 

only a limited summary of the relevant background here. 

In 2012, CREW, a non-profit government watchdog organization, filed an administrative 

complaint with the FEC concerning AAN, a 501(c)(4) organization which spent millions of 

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dollars on political advertising in the lead-up to the 2010 midterms. Compl. ¶¶ 30, 40–41. In 

particular, CREW’s complaint alleged that the content of AAN-sponsored ads run in the 2010 

midterms showed that the organization’s “major purpose” was federal campaign activity, a 

finding that would require AAN to register as a political committee under the FECA. Id. ¶¶ 40–

41. Two years later, over the advice of its General Counsel, the FEC deadlocked 3-3 on whether 

to investigate CREW’s complaint and voted 6-0 to close the file. CREW I, 209 F. Supp. 3d at 

83. In the Statement of Reasons explaining the decision not to proceed with an investigation, the 

so-called “controlling Commissioners”—those whose votes prevented a finding of reason to 

believe a violation had occurred—stated, among other things, that “constitutional doubts raised 

[t]here militate[d] in favor of cautious exercise of [their] prosecutorial discretion.” In re AAN, 

Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and 

Matthew S. Petersen (“First Statement of Reasons”) at 23–24 n.137, MUR No. 6589 (July 30, 

2014);1

 see CREW v. FEC (CHGO), 892 F.3d 434, 437–38 (D.C. Cir. 2018) (explaining that, 

“for purposes of judicial review,” the statement of reasons from controlling Commissioners is 

“treated as if they were expressing the Commission’s rationale for dismissal”). 

Displeased with this result, CREW filed a complaint in this Court challenging the FEC’s 

dismissal as contrary to law. See 52 U.S.C. § 30109(a)(8)(A), (C) (providing right to sue for 

party aggrieved by order of the FEC dismissing a complaint). This Court granted summary 

judgment to CREW, finding the FEC’s substantive analysis contrary to law, and remanded the 

matter to the agency with instructions to conform to the Court’s declaration. See CREW I, 209 

F. Supp. 3d at 92–93, 95. 

1

 Available at https://eqs.fec.gov/eqsdocsMUR/14044362004.pdf. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 3 of 37
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On remand, the FEC again deadlocked over the recommendation of its General Counsel, 

failing for a second time to find reason to believe that AAN violated FECA, and once more voted 

5-1 to close the file. Compl. ¶ 47. The Statement of Reasons accompanying the FEC’s second 

dismissal, while updating the FEC’s analysis in light of this Court’s opinion, also “incorporate[d] 

by reference” the “analysis and discussion” of its First Statement of Reasons “on all points 

except for aspects deemed contrary to law by the court.” In re AAN, Statement of Reasons of 

Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen 

(“Second Statement of Reasons”) at 2, MUR No. 6589R (Oct. 19, 2016).2

 CREW again filed 

suit in this Court, and again, this Court granted summary judgment to CREW and remanded to 

the FEC to conform to its decision. CREW II, 299 F. Supp. 3d at 95. 

This time, however, the FEC took no action within 30 days of remand. Compl. ¶ 52. 

Accordingly, CREW filed suit against AAN directly, as it is permitted to do under 52 U.S.C. 

§ 30109(a)(8)(C). AAN filed a motion to dismiss arguing, as relevant here, that the FEC’s 

fleeting invocation of prosecutorial discretion in its First Statement of Reasons (which was 

incorporated by reference into the FEC’s Second Statement of Reasons) rendered the FEC’s 

dismissal of CREW’s administrative complaint unreviewable under the D.C. Circuit’s then 

recent decision in CHGO, 892 F.3d at 437–38. This Court rejected that argument, holding that 

“[n]othing in CHGO suggests that the mere invocation of the phrase ‘prosecutorial discretion’ 

precludes judicial review” and that what precludes review is instead “reliance by the FEC on 

factors particularly within its expertise in exercising that discretion.” CREW III, 410 F. Supp. 3d 

at 16. The Court therefore denied the motion to dismiss. 

2

 Available at https://www.fec.gov/files/legal/murs/6589/16044401031.pdf. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 4 of 37
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While discovery was ongoing in that case, the D.C. Circuit issued a new decision 

elaborating on CHGO’s analysis of when the FEC’s invocation of prosecutorial discretion bars 

judicial review. Specifically, in CREW v. FEC (New Models), 993 F.3d 880 (D.C. Cir. 2021), 

the Circuit held that “a Commission decision that rests even in part on prosecutorial discretion 

cannot be subject to judicial review.” Id. at 884. In light of that intervening precedent, AAN 

filed a motion for reconsideration, again asking the Court to dismiss CREW’s action as 

unreviewable. CREW IV, 590 F. Supp. 3d at 165–66. The Court observed the similarities 

between CREW’s suit against AAN and New Models, including that the FEC’s stalemate in the 

AAN case “resulted in the dismissal of CREW’s administrative complaint,” that the “controlling 

FEC Commissioners issued a lengthy Statement of Reasons that applied a ‘thoroughgoing legal 

analysis’ to support the dismissal,” and that the Statement of Reasons included “only a fleeting, 

conclusory reference to prosecutorial discretion.” Id. at 173 (quoting New Models, 993 F.3d at 

896 (Millett, J., dissenting)). In light of those “parallel circumstances,” the Court concluded that 

New Models rendered the FEC’s dismissal of CREW’s administrative complaint unreviewable. 

Id. at 174–75. The Court acknowledged that, unlike in New Models, the controlling 

Commissioners in CREW’s action against AAN “issued two separate Statements of Reasons, 

one after a remand from this Court, and the second statement did not mention prosecutorial 

discretion at all.” Id. at 174 n.7. Those distinctions, however, were immaterial, as under New 

Models, the Court “lacked the power to issue the remand order that resulted in the second 

statement” and, “[i]n any event, the second Statement of Reasons ‘incorporate[d] by reference’ 

the first one ‘on all points except for aspects deemed contrary to law’ by this Court.” Id. (second 

alteration in original). Accordingly, the Court dismissed CREW’s suit against AAN. Id. at 175. 

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But just when the Court thought it was out of the fray, CREW and the FEC have pulled it 

back in. As it turned out, about a month after CREW filed its citizen suit against AAN, on May 

10, 2018, the FEC took a third reason-to-believe vote on CREW’s administrative complaint, 

which failed by a vote of 3-0, with Commissioner Ellen Weintraub (the sole Democratic 

appointed member at the time, due to appointment delays) voting to abstain. See Compl., Ex. 5, 

In re AAN, Statement of Reasons of Commissioner Ellen L. Weintraub (“Third Statement of 

Reasons”) at 4, MUR No. 6589R (Sept. 30, 2022).3 Ordinarily, after a failed reason-to-believe 

vote, the FEC immediately follows up with a vote to close the file on the administrative 

complaint. See, e.g., In re AAN, Certification, MUR No. 6589R (Oct. 19, 2016).4

 But here, the 

Commission’s subsequent vote to close the file likewise failed by a vote of 3-1. In re AAN, 

Certification, MUR No. 6589R (May 14, 2018) (“May 2018 Certification”).

5

 Because votes are 

only published after the FEC has “closed” a matter, the parties were not informed of the 

Commission’s failed reason-to believe vote taken in May 2018. See 11 C.F.R. §§ 111.20–111.21 

(providing that Commission’s findings shall not be made public until the Commission “makes a 

finding of no reason to believe or no probable cause to believe or otherwise terminates its 

proceedings”); id. § 5.4(a)(4) (documents “shall be placed on the public record of the Agency no 

later than 30 days from the date on which all respondents are notified that the Commission has 

voted to close such an enforcement file.”). Instead, a week after the failed May 2018 reason-tobelieve and file-closure votes, the FEC sent the parties a letter stating that, pursuant to this 

Court’s remand, “the underlying enforcement matter, MUR 6589R, is currently open before the 

3

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_31.pdf. 

4

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_17.pdf. 

5

 Available at https://eqs.fec.gov/eqsdocsMUR/6589R_22.pdf. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 6 of 37
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Commission” and explaining that the Commission “will notify you immediately regarding any 

determination the Commission makes with regard to” the case. In re AAN, Notification to 

American Action Network, MUR No. 6589R (May 17, 2018).6 

Then, for nearly four years, CREW’s administrative complaint sat in FEC purgatory. The 

now-public administrative record shows that the FEC took another vote to close the case file in 

January 2022, but that vote deadlocked 3-3. In re AAN, Certification, MUR No. 6589R (Jan. 11, 

2022).7 Finally, on August 29, 2022, the Commission voted 5-1 to close the file. In re AAN, 

Certification, MUR No. 6589R (Aug. 29, 2022).8 A few days later, the FEC sent CREW and 

AAN a letter informing them that on “May 10, 2018, the Commission considered the matter, and 

there was an insufficient number of votes to find reason to believe that American Action 

Network violated” FECA and that the Commission had now (four years later) “closed its file in 

this matter.” In re AAN, Notification to CREW at 1, MUR No. 6589R (Sept. 1, 2022).9

 The 

letter attached a Statement of Reasons by the three Republican-appointed Commissioners, which 

was authored in May 2022, expressing remorse at the Commission’s failure, to that point, to 

close the file in the case. Id. at 3–8. Additionally, the letter informed CREW that FECA “allows 

a complainant to seek judicial review of the Commission’s dismissal of this action,” citing 52 

U.S.C. § 30109(a)(8). Id. at 2. About thirty days later, the FEC published its record of the AAN 

proceedings. Compl. ¶ 54. 

6

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_24.pdf. 

7

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_26.pdf. 

8

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_27.pdf. 

9

 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_28.pdf. 

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A final twist: About a month after the FEC finally voted to close the AAN administrative 

file and notified the parties of that decision, Commissioner Weintraub, whose abstention in 2018 

prevented the FEC from obtaining four votes to find reason to believe a violation had occurred, 

issued a Statement of Reasons explaining the basis for her vote. See generally Third Statement 

of Reasons. Because Commissioner Weintraub’s abstention caused the FEC to “fail[] to muster 

four votes in favor of initiating an enforcement proceeding,” her statement, as the FEC concedes 

here, is treated as “expressing the Commission’s rationale for dismissal.” CHGO, 892 F.3d at 

437. But contrary to the norm that “those explaining a dismissal’s rationale agree with the 

outcome and explain all the ways the dismissal was not contrary to law,” Commissioner 

Weintraub’s statement did the opposite, instead explaining “why dismissing the complaint in this 

matter was absolutely contrary to law.” Third Statement of Reasons at 8. And apparently 

seeking to ensure that the FEC could not insulate its dismissal of CREW’s administrative matter 

from judicial review, Commissioner Weintraub’s statement explicitly disclaimed “in its entirety 

the reasoning contained in” the prior Statements of Reasons in this case, declared that the FEC 

“did not dismiss this matter pursuant to prosecutorial discretion,” and added that the Commission 

“did not dismiss this matter because the statute of limitations had elapsed.” Id. at 8–9 (emphasis 

in original). Commissioner Weintraub concluded that “the dismissal of this matter was 

unreasonable, given the facts before the Commission, the law governing this activity, and the 

reasoning referenced” in the statement, and therefore the dismissal was contrary to law. Id. at 

11. 

Armed with Commissioner Weintraub’s statement, CREW filed this new suit against the 

FEC under 52 U.S.C. § 30109(a)(8) in October 2022, alleging that the Commission’s most recent 

dismissal of their administrative complaint was, as Commissioner Weintraub’s controlling 

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statement maintains, contrary to law. Compl. ¶¶ 61–65. The Court granted AAN’s motion for 

leave to intervene in the case. Both the FEC and AAN filed motions to dismiss, raising distinct 

arguments for dismissal. The motions to dismiss are now ripe for the Court’s consideration. 

II. Legal Standards 

When evaluating a motion to dismiss for lack of subject matter jurisdiction under Federal 

Rule of Civil Procedure 12(b)(1), the Court must “assume the truth of all material factual 

allegations in the complaint and ‘construe the complaint liberally, granting plaintiff[s] the benefit 

of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 

F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 

2005)). The plaintiff bears “the burden of proving by a preponderance of the evidence that the 

Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. 

Supp. 2d 172, 176 (D.D.C. 2004). The Court “may consider materials outside the pleadings in 

deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., 

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). 

Under Rule 12(b)(6), a motion to dismiss must be granted if the complaint does not 

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). In deciding a 12(b)(6) motion, the Court “must accept as true all of the 

factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 

(citing Twombly, 550 U.S. at 555–56). Any ambiguities must be viewed in a light most 

favorable to the Plaintiff, giving it the benefit of every reasonable inference drawn from the facts 

and allegations in the complaint. In re Interbank Funding Corp. Sec. Litig., 668 F. Supp. 2d 44, 

47 (D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 

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III. Analysis 

Altogether, the FEC and AAN move to dismiss CREW’s claim on four grounds. While 

the FEC posits that any remand would be futile, AAN asserts that CREW lacks standing, that its 

suit is time-barred, and that the FEC’s invocation of prosecutorial discretion in the First 

Statement of Reasons, as incorporated in the second, precludes any review. The Court will first 

address AAN’s arguments regarding standing and the timeliness of CREW’s complaint, both of 

which go to the Court’s subject matter jurisdiction, before turning to the parties’ remaining 

grounds for dismissal. 

A. Standing 

To show the “irreducible constitutional minimum” of standing, a plaintiff must have “(1) 

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, 

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 

578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). An 

injury in fact must be both “concrete and particularized.” Id. at 339 (quoting Lujan, 504 U.S. at 

560). AAN contends that CREW has not alleged injury in fact because it “has not plausibly pled 

‘that the alleged information deficit,’” stemming from AAN’s failure to disclose certain 

information under FECA, has “‘hindered’ its activities,” as an “asserted informational injury that 

causes no adverse effects cannot satisfy Article III.” AAN Mot. Dismiss at 15 (quoting 

TransUnion v. Ramirez, 141 S. Ct. 2190, 2214 (2021)). This Court addressed and rejected a 

largely identical argument in its opinion denying AAN’s initial motion to dismiss CREW’s 

citizen suit. CREW III, 410 F. Supp. 3d at 12–14. The Court sees no basis to alter its previous 

conclusion. 

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As this Court explained in CREW III, the “Supreme Court has long recognized that 

FECA creates an informational right—the right to know who is spending money to influence 

elections, how much they are spending, and when they are spending it.” CREW III, 410 F. Supp. 

3d at 12. Deprivation of this right to information that should be disclosed under FECA, 

therefore, inflicts an injury in fact “when the plaintiff fails to obtain information which must be 

publicly disclosed pursuant to [the] statute.” Id. (quoting FEC v. Akins, 524 U.S. 11, 21 (1998)). 

Moreover, as Akins explained, injury in fact exists where the information to which the plaintiff 

claims entitlement “would help them (and others to whom they would communicate it) to 

evaluate candidates for public office.” Id. (quoting Akins, 524 U.S. at 21). For that reason, 

courts in this district, including this one, have conferred standing to “groups who, like CREW, 

‘engage[] in a number of campaign-finance related activities—including public education, 

litigation, administrative proceedings, and legislative reform efforts—where the sought-after 

information would likely prove useful.’” Id. at 13 (quoting Campaign Legal Ctr. v. FEC, 245 F. 

Supp. 3d 119, 127 (D.D.C. 2017)). 

Just as the Court found “no reason to doubt” CREW’s previous “claim that the 

information sought would help it in its activities,” it comes to the same conclusion here. Id. 

(quoting Friends of Animals v. Jewell, 824 F.3d 1033, 1040–41 (D.C. Cir. 2016)). Similar to the 

allegations in CREW’s citizen suit against AAN, CREW’s present complaint pleads that the 

organization “uses a combination of research, litigation, and advocacy to advance its mission” of 

empowering voters and exposing corruption, that it “does this . . . by educating citizens regarding 

the integrity of the electoral process and our system of government,” and that, “[t]oward this end, 

CREW monitors the campaign finance activities of those who run for federal and state office and 

those who support or oppose such candidates,” relying on information to which it alleges it is 

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entitled under FECA. Compl. ¶¶ 8–10. Thus, “when an individual, candidate, political 

committee, or other regulated entity fails to disclose or provides false information in reports 

required by the FECA,” CREW “is hindered in its programmatic activity,” including its ability to 

publicize “those who violate federal campaign finance laws through its website, press releases, 

and other methods of distribution,” which in turn serves “CREW’s mission of keeping the public 

informed” about unethical or illegal campaign activities. Id. ¶¶ 9–10; see CREW III, 410 F. 

Supp. 3d at 13 (finding standing where CREW pleaded “it regularly reviews disclosure reports 

required by FECA and uses the information they contain regarding campaign expenditures for a 

host of programmatic activities, such as ‘look[ing] for correlations between . . . spending on 

independent campaign activity that . . . benefits a candidate, and that member’s subsequent 

congressional activities’”). 

As the Court found previously, “[t]hat’s all Akins and Jewell require.” Id. at 13. Were 

there any doubt, the D.C. Circuit has, since CREW III, endorsed exactly this reasoning. In 

Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352 (D.C. Cir. 2020), the Circuit held 

that two organizations committed to “supporting and enforcing campaign finance law” had 

informational standing to challenge the FEC’s dismissal of their complaints. Id. at 355–56. Like 

CREW, the organizations alleged that they participated in “public education, litigation, 

regulatory practice, and legislative policy” and that the accurate disclosure of contributor 

information they sought “would further their efforts to defend and implement campaign finance 

reform.” Id. at 356 (citation omitted). That is precisely CREW’s goal here. Contrary to AAN’s 

characterization, CREW’s alleged injury does not stem from a bare desire that others comply 

with the law but rather its own, individualized interest in carrying out its organizational goals of 

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educating the public about the integrity of the electoral process and conducting research, 

litigation, and advocacy to reduce government corruption.10 

AAN appears to suggest that the Supreme Court’s recent decision in TransUnion v. 

Ramirez somehow changed this landscape. AAN Mot. Dismiss at 17. It did not. AAN points to 

TransUnion’s statements—in a case not involving “a public-disclosure law” like FECA—that 

plaintiffs asserting an informational injury must identify “‘downstream consequences’ from 

failing to receive the required information” and must demonstrate “that the alleged information 

deficit hindered their ability to” engage in some activity. 141 S. Ct. at 2214. Those statements, 

however, do not change but rather encapsulate the analysis this Court already employed—

assessing whether CREW’s failure to receive the requested disclosures would harm its ability to 

advance its organizational mission. Accepting “as true all of the factual allegations contained in 

the complaint,” Erickson, 551 U.S. at 94, CREW plausibly states an informational injury 

sufficient to confer standing. 

B. Timeliness 

The Court next turns to AAN’s contention that CREW’s suit is time barred. FECA 

provides that a party “aggrieved by an order of the Commission dismissing a complaint” may 

petition for review of that decision “within 60 days after the date of the dismissal.” 52 U.S.C. 

§ 30109(a)(8)(A), (B). AAN contends that CREW has missed this 60-day window and that, as a 

result, the Court cannot consider the merits of its petition. See AAN Mot. Dismiss at 17–22. In 

10 The Court is not persuaded by AAN’s argument that the age of the information CREW 

seeks—AAN’s donors for activities that took place over ten years ago—renders that information 

useless to CREW’s mission. AAN Mot. Dismiss at 16–17. Even if the disclosures CREW seeks 

would be so limited, a point CREW disputes, Opp’n at 22, donor information from a decade ago 

could easily prove useful to CREW’s efforts to report on public corruption, for instance, by 

exposing past political corruption or campaign finance violations by donors or political figures 

who are still active today. 

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making this argument, however, AAN does not identify when exactly the statute of limitations 

period ran. It instead advances only a negative argument that the Commission’s August 2022 

vote to close the file could not have started the clock because this vote was simply a ministerial 

act, not a “dismissal” under § 30109(a)(8). Id. Thus, in AAN’s telling, whenever the clock 

actually began to tick, the 60-day deadline had long passed by the time CREW filed the current 

action in October 2022. 

The Court disagrees. The August 2022 vote to close the file was indeed a dismissal that 

triggered the 60-day window, and thus CREW’s petition was timely in the first place. But even 

if the dismissal had occurred at some earlier point in time—namely, when the FEC deadlocked 

on the 2018 reason-to-believe vote—it is likely that equitable tolling would apply here. 

1. When was CREW’s administrative complaint dismissed? 

 To address the merits of AAN’s argument, the Court first must pinpoint when the FEC 

dismissed CREW’s administrative complaint—and thereby triggered § 30109(a)(8)’s window—

after the Court remanded the matter to the Commission in CREW II. There are two possibilities: 

(1) the deadlocked reason-to-believe vote in May 2018; or (2) the successful vote to close the file 

in August 2022. CREW’s claim is time barred if it is the former, but it is timely if the latter was 

the relevant dismissal. With two recent exceptions, which are discussed further below, the Court 

is unaware of any opinion squarely addressing this question. The Court suspects that is because, 

until recently, the FEC’s vote declining to pursue enforcement proceedings and its vote to close 

the case file have, almost always, occurred at the same time, the latter following logically from 

the former. See, e.g., In re Am. Jewish Comm., Certification at 618, MUR No. 2163 (Jan. 10, 

1991) (voting to take “no further action” as to the complaint and voting to “[c]lose the file in this 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 14 of 37
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matter”);

11 In re Duncan Hunter, Certification, MUR No. 5908 (June 30, 2010) (same).12 But 

that is no longer the case anymore, as this case demonstrates, forcing the Court to pick a start 

date here. Having considered the relevant materials, the Court concludes that the Commission 

dismissed CREW’s complaint for purposes of the application of the statute of limitations at the 

latter date when it voted to close the file in August 2022. 

The Court begins with the statute itself, which provides only moderate assistance. As 

stated above, § 30109(a)(8)(A)–(B) provides that any party “aggrieved by an order of the 

Commission dismissing a complaint filed by such party” may file a petition in this court “within 

60 days after the date of the dismissal.” Although the statute does not define “dismissal,” at least 

two textual clues suggest to the Court that the deadlocked reason-to-believe vote here, on its 

own, does not suffice. First, other subsections of the statute refer to the Commission’s decisions 

whether to proceed with enforcement actions or not. Section 30109(a)(2) provides that if the 

Commission, by an “affirmative vote of 4 of its members” finds “reason to believe” a violation 

has occurred, then it should notify the respondent and make an investigation of the alleged 

violation. Other sections similarly discuss what follows if the Commission finds “probable 

cause” to believe that a violation occurred. 52 U.S.C. § 30109(a)(4)(A)(i), (5)(C). But when 

describing the event that triggers the 60-day clock for filing a petition, the statute refers neither 

to the “reason to believe” event nor the “probable cause” event, instead using the terms 

“dismissing” and “dismissal.” Id. § 30109(a)(8)(A)–(C). This variation suggests at least that a 

“dismissal” is not the same thing as a failed reason-to-believe or probable-cause vote. See Sw, 

Airlines Co. v. Saxon, 142 S. Ct. 1783, 1789 (2022) (“[W]here [a] document has used one term 

11 Available at https://perma.cc/92CJ-6UD2. 

12 Available at https://perma.cc/VZ5R-NWNU. 

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16 

in one place, and a materially different term in another, the presumption is that the different term 

denotes a different idea.” (alterations in original) (quoting Antonin Scalia & Bryan Garner, 

Reading Law: The Interpretation of Legal Texts 170 (2012))). 

Second, § 30109(a)(8)(A) refers not to “dismissal” in the abstract but to a party 

“aggrieved by an order of the Commission dismissing a complaint.” 52 U.S.C. § 30109(a)(8)(A) 

(emphasis added). An “order,” in common parlance, is a “command, direction, or instruction” 

that “generally embraces final decrees” or “interlocutory directions or commands.” Order, 

Black’s Law Dictionary (11th ed. 2019). That is, an “order” typically is directed to someone or 

something. Likewise, a person “aggrieved” is one “having legal rights that are adversely 

affected.” Aggrieved, Black’s Law Dictionary (11th ed. 2019). When the FEC here deadlocked 

on its reason-to-believe vote in 2018, however, it is difficult to see how anything was 

“commanded” or anyone was “aggrieved.” Neither CREW nor AAN was notified of the failed 

reason-to-believe vote; rather, both parties were simply sent letters informing them that 

“[p]ursuant to the court’s remand, the underlying enforcement matter, MUR 6589R, is currently 

open before the Commission” and that the Commission “will notify you immediately regarding 

any determination the Commission makes.” Notification to American Action Network, supra, at 

1. Such a letter hardly strikes the Court as an order. Moreover, although the Commission filed a 

certification of the vote describing its outcome, that file was not made public until after the case 

was closed in 2022. Whether or not a tree that falls in an empty forest makes a sound, the Court 

struggles to see how CREW can be “aggrieved” by a vote that is never made known to it. 

The Commission’s regulations, policy statements, and practices bolster this conclusion. 

The FEC’s Statement of Policy on Commission Action states that, “[a]s with other actions taken 

by the Commission, dismissal of a matter requires the vote of at least four Commissioners.” 72 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 16 of 37
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Fed. Reg. 12,545, 12,545–46 (Mar. 16, 2007). Treating deadlocked reason-to-believe votes as 

dismissals obviously conflicts with this position, which the D.C. Circuit implicitly recognized in 

End Citizens United PAC v. FEC, 69 F.4th 916 (D.C. Cir. 2023). After quoting from the Policy 

Statement for the proposition that four votes are needed to dismiss a complaint, the court noted 

that, “before the Commission’s unanimous vote to ‘close the file,’ several other votes also failed 

to get the requisite four votes for the Commission to act, and there is no suggestion that those 

votes impart the Commission’s reason for the dismissal.” Id. at 921. This appears to distinguish 

between failed votes (including a deadlocked reason-to-believe vote) and successful votes for file 

closure, and it indicates that only the latter constitutes dismissal. To be sure, this analysis is in 

tension with the D.C. Circuit’s earlier decision in New Models, which rejected the plaintiff’s

argument that four votes are required to dismiss a complaint because dismissal does not appear 

in 52 U.S.C. § 30107(a)(6)’s enumerated list of actions that require four votes, suggesting that it 

is governed by the “general rule that the Commission must make decisions by majority vote.” 

993 F.3d at 891. But whether dismissal requires four votes or merely a bare majority, accepting 

deadlocks as dismissals would violate even the majority-vote rule because it would authorize 

dismissals when the Commissioners are evenly divided or even when, as in the third reason-tobelieve vote here, three of the Commissioners vote in favor and none vote against finding 

probable cause. 

Another subsection of the FECA, § 30109(a)(4)(B)(ii), sets forth the conditions under 

which the Commission may make public its actions and determinations, stating that if “the 

Commission makes a determination that a person has not violated this Act[,] . . . the Commission 

shall make public such determination.” The Commission promulgated 11 C.F.R. §§ 111.20, 

111.21, and 5.4(a)(4) to implement this provision. See AFL-CIO v. FEC, 333 F.3d 168, 171 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 17 of 37
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(D.C. Cir. 2003). Section 111.20, as relevant here, provides that if “the Commission makes a 

finding of no reason to believe or no probable cause to believe or otherwise terminates its 

proceedings, it shall make public such action and the basis therefor no later than thirty (30) days 

from the date on which the required notifications are sent to complainant and respondent.” 11 

C.F.R. § 111.20(a). Until then, the investigation file remains confidential. Id. § 111.21(a). The 

other provision, 11 C.F.R. § 5.4, which harmonizes these confidentiality rules with the Freedom 

of Information Act, AFL-CIO, 333 F.3d at 171, provides that various investigatory materials, 

including “[o]pinions of Commissioners rendered in enforcement cases,” should be placed on the 

public record of the Commission no later than 30 days from the date that the Commission 

notifies the parties it “has voted to close” the enforcement file, 11 C.F.R. § 5.4(a)(4). Putting all 

this together, the regulations equate the statutory “determination that a person has not violated 

this Act,” 52 U.S.C. § 30109(a)(4)(B)(ii), with the moment that the commission “terminates its 

proceedings,” an event which typically (at least in the past) coincides with a finding of no reason 

to believe or no probable cause, 11 C.F.R. § 111.20(a). 

Here, however, the Commission clearly had not “terminate[d] its proceedings” as to 

CREW’s administrative complaint as of May 2018. It took two more votes on the matter in 

January and August 2022, and the complaint continued to sit on its docket. And, as far as the 

Court can tell, nothing would have stopped the Commission from reconsidering its deadlocked 

2018 reason-to-believe vote before it finally closed the file later in 2022. Matter of fact, the 

Court is aware of another FEC case on its own docket where precisely that happened—with the 

Commission taking two identical reason-to-believe votes a week apart before the file was closed 

in a subsequent vote. See In re John Ellis Bush, Certification, MUR Nos. 6915 & 6927 (Dec. 7, 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 18 of 37
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2018);13 In re John Ellis Bush, Certification, MUR Nos. 6915 & 6927 (Dec. 14, 2018).14 The 

Court’s docket is far from unique, as this appears to be a standard practice for the Commission 

these days. See, e.g., Heritage Action for Am. v. FEC, No. 22-cv-1422 (CJN), 2023 WL 

4560875, at *3 (D.D.C. July 17, 2023) (describing the Commission’s multiple reason-to-believe 

votes over a period of several weeks). This pattern demonstrates that the Commission does not 

view a deadlocked reason-to-believe vote as a dismissal. 

 Indeed, the Commission has stated that position in explicit terms. In Heritage Action for 

America, the Commission refuted the plaintiff’s “unsustainable premise” that a failed reason-tobelieve vote terminated proceedings before the agency. See Opp’n Mot. Summ. J. at 23–31, No. 

22-cv-01422, ECF No. 26. It began by describing the agency’s “long-standing practice of 

terminating matters only through successful votes to close the file.” Id. at 24. This practice 

made sense, it explained, because “a ‘deadlocked’ vote that fails to reach a four Commissioner 

majority is not a ‘determination’ under the FECA” and because reliance on an affirmative vote to 

close the administrative file “allows the Commissioners to further consider a matter after a single 

inconclusive vote. In fact, the Commission has often held one reason-to-believe or probablecause-to-believe vote that does not pass, only to determine in a later vote that there was in fact 

reason to believe or probable cause to believe on the same claim.” Id. at 24–25. It then cited a 

plethora of cases involving reversals after initial failed reason-to-believe votes, id. 27 & nn.4–6, 

and detailed why this practice is perfectly consistent with the FECA and the relevant regulations, 

see id. at 23–31. This reasonable interpretation of the statutory and regulatory framework that 

comports with the Commission’s long-standing approach warrants some degree of deference. 

13 Available at https://www.fec.gov/files/legal/murs/6927/6927_15.pdf. 

14 Available at https://www.fec.gov/files/legal/murs/6927/6927_16.pdf. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 19 of 37
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See, e.g., Drake v. FAA, 291 F.3d 59, 69 (D.C. Cir. 2002) (noting courts should defer to agency 

interpretations of regulations presented in the course of litigation if consistent with past practice); 

Landmark Legal Found. v IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001) (granting Skidmore 

deference to an agency’s interpretation of a statute advanced during litigation). 

One additional fact here is more damning still to AAN’s argument. The statute requires 

that the Commission “shall make public” its “determination that a person has not violated” 

FECA. 52 U.S.C. § 30109(a)(4)(B)(ii). But here, as already discussed, the only public 

disclosure following the Commission’s deadlocked reason-to-believe vote was its May 17, 2018 

letter stating that the matter remained open. By contrast, after the FEC finally voted to close the 

file in August 2022, it informed the parties—for the first time—about the May 2018 vote that 

resulted in “an insufficient number of votes to find reason to believe.” Notification to CREW, 

supra, at 2. Most striking, the letter also finally informed CREW that it was entitled “to seek 

judicial review of the Commission’s dismissal of this action” pursuant to § 30109(a)(8). Id. 

(emphasis added). In other words, both the Commission’s regulatory framework and its 

treatment of the events in this case support the conclusion that the file closure, not the reason-tobelieve vote on its own, was the moment the case was “dismissed.” 

Turning to case law, both AAN and CREW point to statements in various opinions of this 

court and the D.C. Circuit which, in their view, prove the meaning of the words “dismissal.” As 

noted above, however, those cases uniformly involve instances where the Commission voted not 

to pursue enforcement and voted to close the file at the same moment. The cases, therefore, are 

only minimally instructive. But to the extent they point in any direction, they support CREW’s 

understanding that a dismissal follows or results from—and is not one and the same as—a 

deadlocked reason-to-believe vote. In describing the “deadlock dismissal” phenomenon, 

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Democratic Congressional Campaign Committee v. FEC (DCCC), 831 F.2d 1131 (D.C. Cir. 

1987), framed the case as asking what happens when the FEC “deadlocks and for that reason 

dismisses a complaint.” Id. at 1132; see also id. (describing “dismissal due to a deadlock”). The 

next year, in Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988), the D.C. Circuit again 

described deadlock dismissals in the following terms: “dismissal of a complaint resulting from a 

3-3 deadlock vote,” id. at 448, “dismiss[ing] the complaint for lack of the requisite four votes in 

favor of pursuing the investigation,” id. at 449, requiring a statement of reasons “at the time 

when a deadlock vote results in an order of dismissal,” id., and “orders of dismissal based on 

deadlock votes,” id. at 451. And in FEC v. National Republican Senatorial Committee, 966 F.2d 

1471 (D.C. Cir. 1992), the court again described its holding in DCCC as explaining what 

happens “when the Commission deadlocks 3-3 and so dismisses a complaint.” Id. at 1476. In 

other words, although these cases did not hold one way or another on the issue before this Court, 

they all contemplated that the reason to believe deadlock and the dismissal itself were two 

separate events, the latter brought about by the former. 

The Circuit’s recent decision in End Citizens United PAC reaffirms this understanding 

when stating that, “[i]n the absence of four votes to proceeding, the Commission may dismiss the 

administrative complaint and close the file.” 69 F.4th at 918 (emphasis added). “May” is not 

“must.” Although oftentimes a deadlocked reason-to-believe vote will lead to a successful vote 

to close the file and dismissal of the complaint, that need not be the case. As the FEC’s recent 

track record demonstrates, the Commission is free to keep the file open in the hopes of reaching 

some resolution on the matter. Thus, until the Commission affirmatively votes to close the file, 

the door remains open for further enforcement action because the complaint is not closed—viz., 

the Commission has not dismissed the complaint. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 21 of 37
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Finally, background principles of claim accrual and administrative law compel the 

conclusion that the FEC’s closure of the case file triggered the 60-day clock here. General 

common law principles hold that “the standard rule” is that a claim accrues “when the plaintiff 

has ‘a complete and present cause of action,’” that is, when “the plaintiff can file suit and obtain 

relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (citation omitted); see also Bay Area 

Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Calif., Inc., 522 U.S. 192, 201 

(1997) (“Unless Congress has told us otherwise in the legislation at issue, a cause of action does 

not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and 

obtain relief.”). Here, there is no way that CREW “could have filed” a petition challenging the 

Commission’s dismissal of its administrative complaint within 60 days of the 2018 reason-tobelieve vote because it did not, and it appears could not, have known about the deadlocked vote 

until after the Commission closed the case file. Moreover, concluding that the deadlocked 

reason-to-believe vote, on its own, triggers § 30109(a)(8)’s 60-day clock would render 

“meaningful judicial review of the Commission’s decision not to proceed” impossible in cases 

like this one. Common Cause, 842 F.2d at 449. Considered alongside the statute, regulations, 

and agency practice, the Court concludes that CREW’s complaint here was timely filed. 

Before the Court ends on the question of timeliness, it must acknowledge that two other 

courts in this district have recently come to conclusions that are either in some tension or direct 

conflict with this decision. In Campaign Legal Center v. 45Committee, Inc., No. 22-cv-1115 

(APM), 2023 WL 2825704 (D.D.C. Mar. 31, 2023), after the FEC failed to act on Campaign 

Legal Center’s (“CLC”) administrative complaint against 45Committee, the court found that the 

Commission’s delay was contrary to law and ordered the Commission to conform within 30 

days, pursuant to § 30109(a)(8)(C). Id. at *2. After the FEC remained silent, the court gave 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 22 of 37
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CLC permission to sue 45Committee directly, which it did. Id. After that suit had commenced, 

however, the FEC voted to close the file in CLC’s administrative complaint, revealing for the 

first time that the Commission had deadlocked on a reason-to-believe vote within the 30-day 

period specified under § 30109(a)(8)(C). Id. at *2–4. Based on the revelation of that 

information, and despite the fact that the FEC had voted to close the case file after the 

deadlocked reason-to-believe vote, the court held that the previous deadlocked vote had 

“conform[ed]” with its earlier order and that it therefore lacked jurisdiction under FECA. Id. at 

*4. In so holding, the court rejected CLC’s argument that the failed reason-to-believe vote did 

not constitute “action” under FECA. Id. The court reasoned that the D.C. Circuit “has 

repeatedly acknowledged that Commission deadlocks, usually by a 3-3 vote, constitute ‘deadlock 

dismissal[s],’” citing Common Cause, DCCC, and other cases for support. Id. (alteration in 

original). 

Respectfully, the Court disagrees with this analysis. For one, as stated above, cases like 

Common Cause and DCCC repeatedly distinguished between deadlocked votes, on the one hand, 

and dismissals, on the other—a distinction that End Citizens United PAC recently reiterated. 

Additionally, the Court is not persuaded by CLC’s reading of the D.C. Circuit’s decision in 

Public Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016). The CLC court cited Public 

Citizen’s observations that “FECA deadlocks as agency action . . . is baked into the very text of” 

FECA and that the FEC, accordingly, “engages in final agency action when, after receiving a 

complaint alleging certain types of campaign finance violations, it deadlocks.” CLC, 2023 WL 

2825704, at *4 (quoting Public Citizen, 839 F.3d at 1170). Although Public Citizen does, 

indeed, characterize “FECA deadlocks as agency action,” Public Citizen was a case not about the 

FEC deadlock phenomenon but rather about similar deadlocks by FERC. 839 F.3d at 1169–72. 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 23 of 37
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Accordingly, in its relatively brief discussion of FEC deadlocks, the Public Citizen court had no 

occasion to distinguish between the distinct phenomena of reason-to-believe votes, file closures, 

and dismissals or to analyze any overlap between those concepts. Moreover, the court in Public 

Citizen did not express any awareness of the Commission’s practice of declining to close the 

case file after a deadlocked reason-to-believe vote. In that context, the Court reads Public 

Citizen’s statements about deadlocks and its aside that FECA contains a “legal requirement to 

dismiss complaints in deadlock situations” to be a shorthand for the facts that (1) pursuing 

enforcement proceedings in FECA cases requires a four-vote majority, and (2) as a practical 

matter, a dismissal is virtually always the result, even if not the immediate result, of a 

deadlocked reason-to-believe vote. Public Citizen, 839 F.3d at 1171. 

More recently, the court in Heritage Action for America fully embraced the argument that 

deadlocked reason-to-believe votes are themselves dismissals, regardless of any separate vote to 

close the file. 2023 WL 4560875, at *7–9. That case involved a now familiar set of facts. CLC 

had filed a complaint with the Commission contending that Heritage Action had failed to 

disclose donor names. Id. at *2. The Commission took a reason-to-believe vote on the matter, 

which deadlocked 3-3, and then deadlocked on the subsequent vote to close the file. Id. 

Consistent with recent agency practice, none of these votes were disclosed. Id. After 120 days 

of apparent inaction, CLC filed suit alleging that such neglect was contrary to law. Id. The 

district court agreed and remanded to the Commission, which again deadlocked on subsequent 

reason-to-believe and file-closure votes which were once more kept secret. Id. At that point, 

there were a flurry of lawsuits as CLC sued Heritage Action for alleged FECA violations and 

Heritage Action sued the Commission for its delay and non-disclosure of votes (which it had 

accessed through FOIA requests). Id. at *3. Both cases turned on the same question: At what 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 24 of 37
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point had the Commission dismissed the complaint and thus triggered its obligation to notify? 

The court in Heritage Action answered that the critical moment was the deadlocked reason-tobelieve vote. Id. at *7–9. As a result, it found that the Commission had violated its obligation to 

disclose its deadlocked votes but dismissed CLC’s petition as untimely because the organization 

failed to file its petition within 60 days of that undisclosed vote. Id. at *10–11. 

The Court again respectfully disagrees. Heritage Action provided four reasons for why a 

deadlocked reason-to-believe vote constitutes dismissal, but none persuade the Court here. First, 

it reasoned that, because the Commission cannot investigate without four votes, the necessary 

effect of deadlock must be dismissal because “any future reason-to-believe votes would be based 

on the exact same evidence already before the Commission for the first vote.” Id. at *8. But 

experience has shown that the Commission routinely changes course after an initial failed 

reason-to-believe vote either because Commissioners are convinced by their colleagues or based 

on later negotiations to narrow the charges. Second, although Heritage Action maintained that 

the D.C. Circuit long has treated deadlocked votes as final agency action, id., the cases that it 

cites for that proposition are the same opinions discussed above. These cases may treat a 

deadlocked vote as leading to dismissal in some cases, but they do not hold that the two events 

are one and the same. Third, Heritage Action contends the regulations equate a deadlocked 

reason-to-believe vote with the termination of proceedings when stating that if “the Commission 

finds no reason to believe, or otherwise terminates its proceedings, the General Counsel shall so 

advise both complainant and respondent by letter.” Id. at *9 (emphasis in original). As the FEC 

explained in its briefing in that case, however, the Commission does not “find” that there is no 

reason to believe when it deadlocks, as any such finding would require the affirmative vote of 

four members. Opp’n Mot. Summ. J., supra, at 29. Fourth, Heritage Action reasoned that, “if a 

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deadlocked reason-to-believe vote does not constitute dismissal, some complaints could remain 

indefinitely in limbo before the Commission.” 2023 WL 4560875, at *8. The Court 

sympathizes with these policy concerns and acknowledges there are real costs associated with 

the Commission refusing to close a file when it is deadlocked indefinitely. But that is the price 

of a deeply divided Commission, and it is not the judiciary’s role to rectify the matter by 

changing the rules. 

2. Is the 60-day limitations period subject to equitable tolling? 

Even if the Court were to agree with Heritage Action’s determination that a deadlocked 

reason-to-believe vote counts as dismissal, that does not necessarily mean that CREW’s petition 

here must be dismissed as untimely because it did not file a petition within 60 days of a vote that 

CREW did not know (and could not know) had taken place. The Court acknowledges that the 

D.C. Circuit has referred to the 60-day limitations period as “jurisdictional and unalterable,” see 

NRA v. FEC, 854 F.2d 1330, 1334 (D.C. Cir. 1988) (quoting Carter/Mondale Presidential 

Comm. v. FEC, 711 F.2d 279, 283 (D.C. Cir. 1983)), and that subsequent cases have repeated 

this jurisdictional label, see, e.g., Spannaus v. FEC, 990 F.2d 643, 644 (D.C. Cir. 1993); Jordan 

v. FEC, 68 F.3d 518, 518–19 (D.C. Cir. 1995). Yet it is doubtful that these determinations are 

still in good standing because subsequent Supreme Court decisions appear to have “eviscerate[d] 

[their] reasoning.” Attias v. CareFirst, Inc., 344 F.R.D. 38, 46 (D.D.C. 2023) (citation and 

quotation marks omitted). Time and time again, the Supreme Court has cautioned against the 

overuse of jurisdictional limits and routinely reversed courts for “misus[ing] the term 

‘jurisdictional’ to refer to nonjurisdictional prescriptions.” Wilkins v. United States, 143 S. Ct. 

870, 877 (2023) (citation and quotation marks omitted). This is especially true in the context of 

filing deadlines, such as the 60-day limit here, as the Supreme Court has reiterated that such 

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deadlines are presumptively “nonjurisdictional claims-processing rules [which] simply instruct 

parties [to] take certain procedural steps at certain specified times without conditioning a court’s 

authority to hear the case on compliance with those steps.” Robinson v. Dep’t of Homeland Sec. 

Off. of Inspector Gen., 71 F.4th 51, 56 (D.C. Cir. 2023) (cleaned up). To rebut this presumption, 

there must be a “clear statement” that Congress intended the time limit to be jurisdictional. Id. 

Applying that stringent standard, the D.C. Circuit has reversed several of its prior “jurisdictional” 

determinations. See, e.g., id. at 56–58. 

There is ample reason to believe that it would do the same in this case. The court in 

NRA did not analyze the FECA’s text or comb through the Congressional Record to identify 

Congress’s intent to make the 60-day window “jurisdictional and unalterable.” It simply quoted 

that line from an earlier decision dealing with a separate FECA limitations period, which had cut 

and pasted the slogan from a case involving a Federal Power Act filing deadline, which in turn 

had grabbed the quote from cases involving still other statutes. See NRA, 854 F.2d at 1334 

(quoting Carter/Mondale, 711 F.2d at 283 (quoting, in turn, Cities of Batavia v. FERC, 672 F.2d 

64, 72–73 (D.C. Cir. 1982) (quoting other unrelated statutes))). This citation chain sheds no light 

on what Congress intended when enacting the 60-day time limit at issue here. Cases on the other 

end of the chain citing back to NRA fare no better, as they insist that “[s]tatutory time limits on 

judicial review are traditionally considered jurisdictional.” Jordan, 68 F.3d at 518; see also 

Spannaus, 990 F.2d at 644 (“Consistently, this court has declared mandatory, i.e., ‘jurisdictional 

and unalterable,’ statutes that fix the time for seeking judicial review.” (citations omitted)). 

While that may have been traditionally true, times have changed. It is now well-established that 

Congress “must do something special, beyond setting an exception-free deadline, to tag a statute 

of limitations as jurisdictional and so prohibit a court from tolling it,” United States v. Wong, 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 27 of 37
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575 U.S. 402, 410 (2015), and there is no evidence that the 60-day deadline to file a petition is 

anything other than an ordinary claims-processing rule. 

If the 60-day window is non-jurisdictional and thus alterable, AAN’s timeliness argument 

surely fails because this is a textbook example of where equitable tolling is necessary. A party 

seeking equitable tolling must show “(1) that [it] has been pursuing [its] rights diligently, and (2) 

that some extraordinary circumstance stood in [its] way.” Pace v. DiGuglielmo, 544 U.S. 408, 

418 (2005). CREW satisfies both requirements. A quick skim through the procedural history in 

this case shows that CREW has been more than diligent in pursuing its rights, and the fact that 

the FEC kept its deadlocked reasoned to believe votes under wraps certainly qualifies as 

“circumstances that caused a litigant’s delay [that] are both extraordinary and beyond its 

control.” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016). 

In short, there is ample “reason to believe” that CREW’s petition would be subject to 

equitable tolling if need be. The Court need not definitively decide that question now, however, 

because, for the reasons explained above, it finds that CREW’s petition was timely filed after the 

Commission dismissed its complaint by voting to close the file. 

* * * 

Although it agrees with CREW that this case was timely filed, the Court also must raise 

two ambiguities that, because they were not briefed, it will not resolve at this time. 

First, because nobody has briefed this question, the Court does not decide whether the 

Commission erred by failing to close the file and dismiss the case after its May 2018 vote. The 

Commission’s certification for its May 2018 vote states that it “[f]ailed by a vote of 3-1 to” close 

the file, with three Commissioners voting affirmatively and only Commissioner Weintraub 

dissenting. May 2018 Certification, supra, at 3. New Models, in particular, calls that result into 

Case 1:22-cv-03281-CRC Document 24 Filed 09/20/23 Page 28 of 37
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question when it held that the text of FECA “states that four members are necessary only ‘to 

initiate,’ ‘defend,’ ‘or appeal any civil action,’” and thus “the affirmative vote of four members” 

is not needed for dismissals. New Models, 993 F.3d at 891 (quoting 52 U.S.C. § 30107(a)(6)); 

see also 52 U.S.C. § 30106(c) (stating the general rule that the Commission must make decision 

by majority vote). As mentioned earlier, however, this analysis conflicts with the D.C. Circuit’s

later decision in End Citizens United PAC relying on the Commission’s Statement of Policy on 

Commission Action for the proposition that four votes are needed to dismiss a case. 69 F.4th at 

921 (quoting 72 Fed. Reg. 12,545, 12,545–46 (Mar. 16, 2007)). Given the opposing rulings, the 

Court will refrain from wading into these waters at this juncture to afford the parties an 

opportunity to brief this issue, should they choose. 

Second, the Court does not address at this time whether Commissioner Weintraub’s 

Statement of Reasons is itself untimely under End Citizens United PAC. There, the day after the 

Commission failed to reach four affirmative votes on reason to believe, it voted unanimously to 

close the file “and dismissed” the administrative complaint. Id. at 919. Neither Chairman 

Dickerson nor Commissioner Cooksey, whose votes prevented a reason to believe finding, filed 

a statement of reasons explaining their votes, however. Id. Two months after the dismissal, End 

Citizens United PAC filed a complaint challenging the dismissal under § 30109(a)(8)(A), and 

four days after that, Chairman Dickerson and Commissioner Cooksey filed a statement of 

reasons, stating that they had voted not to find reason to believe pursuant to their prosecutorial 

discretion. Id. Relying on that invocation of prosecutorial discretion, the district court dismissed 

End Citizen United PAC’s case. Id. On appeal, the Circuit reversed, explaining that “[a]s the 

controlling Commissioners,” Chairman Dickerson and Commissioner Cooksey “were obligated 

to issue a contemporaneous statement ‘explaining their votes,’ which the court would treat as the 

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Commission’s reason for the dismissal.” Id. at 921. That obligation, the court explained, means 

that “the controlling Commissioners’ explanation” must be issued “at the time when a deadlock 

vote results in an order of dismissal.” Id. (quoting Common Cause, 892 F.2d at 449). Because 

the Dickerson/Cooksey statement was not so issued, it could not be squared “with the prohibition 

on post hoc rationalizations.” Id. at 922. But although the court concluded that the 

Dickerson/Cooksey statement was “non-contemporaneous,” it did not explain just how 

“contemporaneous” a “contemporaneous” statement must be. End Citizens United PAC stands 

at least for the conclusion that a statement issued after both “the commencement of the 

underlying litigation and the expiration of the statutory deadline to challenge the dismissal” is 

contrary to law and must be remanded. Id. at 921, 923–94. But the Court is not sure where that 

leaves statements, such as Commissioner Weintraub’s here, that are issued weeks after the fileclosure vote but before either the filing of a lawsuit or the expiration of the 60-day clock. 

Because the parties have not briefed these questions, the Court leaves them for another 

day. For now, the Court is satisfied that CREW’s complaint was brought within the 60-day 

timeline prescribed by § 30109(a)(8)(B). 

C. Futility 

In its motion to dismiss, the FEC contends that “remand would serve no purpose other 

than necessitating yet another round of administrative proceedings, but the outcome of agency 

consideration of enforcement is preordained”—in other words, that remand would be futile. 

FEC Mot. Dismiss at 11–12. In particular, the FEC points to a non-controlling statement in this 

case issued by three Commissioners which, in the FEC’s view, suggests that the Commission 

would not have four votes on remand to find reason to believe a violation occurred and, 

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presumably, would dismiss a remanded administrative complaint pursuant to the Commission’s 

prosecutorial discretion. Id. at 12–13. The Court is not convinced by this argument. 

For one, the statement cited in the FEC’s brief does not speak one way or another about 

how the authoring Commissioners would decide the merits of a reason-to-believe vote on 

remand. The FEC primarily points to a May 2022 statement by Chairman Allen J. Dickerson 

and Commissioners Sean J. Cooksey and James E. Trainor, III. In re AAN, Statement of 

Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor, III, MUR No. 6589R (May 13, 2022).15 This statement, however, expresses the 

Commissioners’ views only as to the Commission’s “failure to perform th[e] ministerial act” of 

closing the file in the AAN case after the 2018 reason-to-believe vote had failed. Id. at 1. The 

statement observes that the Commission took a file-closure vote on the AAN case “with an eye 

toward resolving stale matters and ensuring responsible use of agency resources,” id. at 3, but the 

context suggests that the Commissioners viewed the matter as “stale” and a waste of “agency 

resources” only insofar as the Commission had already taken its substantive vote. Indeed, the 

statement explains that the underlying reason-to-believe vote “predates our service on the 

Commission,” and adds that, “as such,” the authors “take no position on the merits of that 

decision.” Id. at 6 (emphasis added). It is a bedrock principle of administrative law that “an 

agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor 

Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983); see also 

SEC v. Chenery Corp., 332 U.S. 194, 196–97 (1947) (“It will not do for a court to be compelled 

to guess at the theory underlying the agency’s action.”). It would be entirely speculative for the 

Court to guess from Chairman Dickerson’s statement how the Commission might vote if this 

15 Available at https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf. 

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case were remanded, let alone what its reasons for voting might be or whether those reasons 

would be subject to judicial review. 

The D.C. Circuit, moreover, recently rejected virtually the same argument in End 

Citizens United PAC, the holding of which was discussed previously. In addition to holding that 

the non-contemporaneous statement of reasons there was contrary to law, the Circuit also 

rejected the “fallback position that reversing the district court’s judgment would be ‘pointless’ 

because Dickerson and Cooksey’s prosecutorial discretion reason,” expressed in the tardy 

statement of reasons, “would prevail on remand.” 69 F.4th at 922. Requiring an agency to 

provide “contemporaneous explanations for agency action,” the court reasoned, “promotes 

‘agency accountability’ by ensuring that parties and the public can respond fully and in a timely 

manner to an agency’s exercise of authority” and advances “the orderly functioning of the 

process of review.” Id. at 922–23 (quoting Dep’t of Homeland Sec. v. Regents of the Univ. of 

Cal., 140 S. Ct. 1891, 1909 (2020)). The court stressed, moreover, that the Supreme Court had 

“determined that remand was appropriate in Regents notwithstanding the agency’s representation 

that there was ‘no basis for concluding that [its] position might change’” and “that the matter 

would be considered by the ‘same agency personnel’ on remand.” Id. at 923 (citations omitted). 

Thus, even if the May 2022 statement discussed above did speak to the Commission’s view of 

the merits of the CREW complaint against AAN, which it did not, End Citizens United PAC and 

Regents would likely require remand here anyway. 

The cases on which the FEC relies miss the mark. For instance, Fogg v. Ashcroft, 254 

F.3d 103 (D.C. Cir. 2001), held that remand would be futile where, although the agency had 

committed a legal error, “its ultimate conclusion” was “legally inevitable” under the correct legal 

analysis. Id. at 111–12; see also NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 63–64 (2d Cir. 

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1982) (declining to remand because the outcome would be the same whether or not the agency 

had applied a possibly erroneous legal framework). These cases, then, essentially stand for the 

unremarkable principle that if “the agency’s mistake did not affect the outcome, if it did not 

prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.” PDK 

Lab’ys Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). By contrast, the Court here cannot say 

that it is “legally inevitable” that the FEC on remand would invoke its prosecutorial discretion to 

decline to pursue enforcement proceedings, as such a determination is inherently tied up with 

time- and context-bound questions of when enforcement would “be an appropriate use” of 

agency “resources.” New Models, 993 F.3d at 882. In a word, there is a difference between 

declining to remand because of a harmless legal error and declining to remand based on the 

potentiality that the FEC might invoke its prosecutorial discretion based on the facts and state of 

agency resources at the present moment.16 

Also inapposite is FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996). There, although 

the FEC had violated the Constitution by voting to pursue enforcement proceedings with two 

congressional officers sitting as ex officio members of the Commission, the D.C. Circuit 

nevertheless held that remand was not warranted because the Commission had cured any 

constitutional violation by reconstituting itself, excluding ex officio members, and taking a 

constitutionally proper vote to find probable cause that the Defendant had violated the law. Id. at 

706, 709. Here, if the FEC’s decision not to find reason to believe AAN violated FECA was 

contrary to law (a question not yet before the Court), there is no basis to conclude that the 

Commission has already cured that violation and that this Court’s remand holds no prospect of 

16 Lest there be doubt on this point, the Commission’s rather unpredictable treatment of 

CREW’s administrative complaint in this case gives the Court good reason not to hazard a guess 

as to how it may vote in the future. 

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relief for CREW. See also Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 

35 n.10 (D.D.C. 2016) (explaining that, even if the court had found the Forest Service’s action 

arbitrary and capricious, it “harbor[ed] doubts” that it could provide the plaintiff relief, as 

remand to the agency to produce an environmental impact statement after the passage of six 

years “would be near impossible to square” with the requirement that the agency act 

expeditiously). 

Accordingly, the Court will not dismiss CREW’s complaint on the grounds that remand 

would be futile. 

D. Prosecutorial Discretion 

Finally, the Court turns once again to the impact of New Models on this litigation, 

namely whether the Commission’s brief reference to prosecutorial discretion in its very first 

Statement of Reasons in this case—way back in 2014—bars the Court’s review of Commissioner 

Weintraub’s statement here. 

As a refresher, after the FEC failed to conform to this Court’s second remand following 

CREW II, CREW filed a suit directly against AAN. CREW III, 410 F. Supp. 3d at 11. The 

Court initially denied AAN’s motion to dismiss, but it granted reconsideration and ultimately 

dismissed the case in light of New Models. CREW IV, 590 F. Supp. 3d at 165–66, 173–75. As 

in New Models, the Court explained, the Commission’s “fleeting, conclusory reference to 

prosecutorial discretion” in its 2014 Statement of Reasons was “fatal to CREW’s claim.” Id. at 

173–74. In a footnote, the Court acknowledged that, unlike the 2014 Statement of Reasons, the 

2016 Statement of Reasons then on review “did not mention prosecutorial discretion at all.” Id. 

at 174 n.7. But the Court then observed that “if the passing reference to prosecutorial discretion 

in the initial statement made the first dismissal unreviewable under New Models, then the Court 

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lacked the power to issue the remand order that resulted in the second statement.” Id. “The 

result would have been a dismissal of CREW’s case, and the Commissioners never would have 

issued a second statement.” Id. “In any event,” the Court added, the 2016 Statement of Reasons 

“incorporate[d] by reference” the first one, which was sufficient to conclude that CREW’s 

citizen suit must be dismissed under New Models. Id. (citation omitted). 

Returning to the present case, it is clear that Commissioner Weintraub read the Court’s 

last opinion carefully. Because her lone abstention from the 2018 reason-to-believe vote caused 

the Commission to “fail[] to muster four votes in favor of initiating an enforcement proceeding,” 

her explanation for that abstention is entitled to controlling weight for purposes of this petition 

for review. CHGO, 892 F.3d at 437.17 Apparently seeking to evade any roadblocks to a remand 

set by New Models or CREW IV, Commissioner Weintraub disclaims both any reliance on 

prosecutorial discretion and any incorporation of the reasoning of the FEC’s prior statements. 

17 The FEC concedes that Commissioner Weintraub’s statement is controlling, although 

it notes that it “is unaware of any previous case in which a single abstaining Commissioner 

caused the FEC to lack the required four votes to find reason to believe.” FEC Mot. Dismiss at 9 

n.4. Stressing that the statement does not even purport to justify her vote as it is singularly aimed 

at condemning the Commission’s failure to proceed as contrary to law, AAN vigorously contests 

the conclusion that Commissioner Weintraub’s statement is controlling. AAN Mot. Dismiss at 

25–28. The Court sympathizes with AAN’s confusion on this count. But, although 

Commissioner Weintraub’s statement is no doubt unorthodox, the Court can find no basis to 

depart from the D.C. Circuit’s repeated holdings that the “statement of reasons by the decliningto-go-ahead Commissioner[],” in this case Commissioner Weintraub, speaks for the 

Commission. Common Cause, 842 F.2d at 449; see also CHGO, 892 F.3d at 437–38 (explaining 

that “for purposes of judicial review, the statement or statements of those naysayers—the socalled ‘controlling Commissioners’—will be treated as if they were expressing the 

Commission’s rationale for dismissal, a rather apparent fiction raising problems of its own”); 

Nat’l Republican Senatorial Comm., 966 F.2d at 1476 (“Since those Commissioners constitute a 

controlling group for purposes of the decision, their rationale necessarily states the agency’s 

reasons for acting as it did.”). Moreover, if Commissioner Weintraub’s statement is, indeed, the 

“equivalent of a boxer taking a dive,” as AAN contends, AAN Mot. Dismiss at 27, the Court 

does not see why that fact would require dismissal of CREW’s complaint, as opposed to remand 

to the Commission for a new statement. 

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Third Statement of Reasons at 8–9. Accordingly, Commissioner Weintraub’s statement 

maintains that this Court has the authority to review her statement and must remand this case to 

the FEC because her statement is contrary to law. Id. at 11. 

Notwithstanding Commissioner Weintraub’s abandonment of any reliance on 

prosecutorial discretion, AAN maintains that CREW’s suit must be dismissed because, had the 

Court decided the first two petitions in accordance with New Models, the case would have been 

dismissed, and Commissioner Weintraub never would have been in a position to issue the 

present statement. AAN Mot. Dismiss at 24–25. In response, CREW maintains that the Court 

“did not rely” on this hypothetical, alternative-timeline reasoning but instead dismissed CREW’s 

last suit based on the Second Statement of Reasons’ incorporation of the first. Opp’n at 28–29. 

The Court will save this vexing question for another day. As the parties in this case are 

well aware, CREW has filed an appeal of this Court’s decision in CREW IV to dismiss its 

complaint under New Models. Both CREW’s and AAN’s briefs in that appeal directly address 

the Court’s hypothetical reasoning from CREW IV. CREW maintains that any consideration of 

the counter-factual world where New Models prevented the birth of the FEC’s Second Statement 

of Reasons would improperly revive a dead letter agency decision, Public Brief for PlaintiffAppellant at 29–31, CREW v. AAN, No. 22-7038 (D.C. Cir. Mar. 29, 2023), Doc. No. 1992359, 

whereas AAN maintains that “the first statement cuts off all further review” whether subsequent 

statements incorporated it or not, Brief for Appellee at 31–32, CREW v. AAN, No. 22-7038 

(D.C. Cir. June 30, 2023), Doc. No. 2006015. Thus, although the Circuit may not need to reach 

this question, it is reasonably possible that it will provide instruction that could govern the 

Court’s treatment of the FEC’s past statements of reasons in this case. Rather than leapfrog the 

Circuit’s potential decision on this uncertain question, the Court believes it more prudent to deny 

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AAN’s motion to dismiss on this ground, without prejudice to renewal after a decision is 

rendered in CREW’s pending appeal.18 In the meantime, to avoid the expenditure of 

unnecessary resources, the Court will stay this case.

IV. Conclusion

For these reasons, it is hereby 

ORDERED that [Dkt. No. 12] Defendant Federal Election Commission’s Motion to 

Dismiss is DENIED without prejudice to renewal. It is further

ORDERED that [Dkt. No. 15] Intervenor American Action Network’s Motion to 

Dismiss is DENIED without prejudice to renewal. It is further

ORDERED that this case is stayed pending the decision of the D.C. Circuit in CREW v. 

American Action Network, No. 22-7038. 

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: September 20, 2023 

18 The Court does, however, reject CREW’s extended argument that the Court must 

disregard New Models and CHGO as in conflict with prior binding precedent. Although CREW 

is correct that, “when a decision of one panel is inconsistent with the decision of a prior panel, 

the norm is that the later decision, being in violation of that fixed law, cannot prevail.” Sierra 

Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). But the prior cases which CREW 

maintains conflict with CHGO and New Models—Akins, DCCC, Chamber of Commerce of U.S. 

v. FEC, 69 F.3d 600 (D.C. Cir. 1995), and Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)—were 

all considered by New Models, and the court either “harmonize[d]” them or concluded that they 

“conform[]” with its reasoning. 993 F.3d at 893–95. That New Models is consistent with those 

prior cases, then, is the law of the Circuit and binding on this Court. 

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