Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 1 of 32 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

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

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION ) 

1050 First Street, NE ) 

Washington, DC 20463 ) SECOND MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S SECOND MOTION TO DISMISS 

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

Commission (“Commission”) hereby renews its motion for an order dismissing plaintiff’s 

complaint, which seeks relief pursuant to 52 U.S.C. § 30109(a)(8)(C). The Court previously 

held that its prior holding finding plaintiffs had not suffered an informational injury sufficient to 

confer standing precluded a contrary finding here, but withheld judgment as to whether plaintiffs 

had suffered a sufficient organizational injury, and invited the parties to submit additional 

briefing to address the issues the Court raised. Because the Court’s prior judgments preclude 

plaintiffs’ organizational theory, and because plaintiffs cannot demonstrate an “ongoing” injury 

as required for the injunctive relief they seek, this theory fails, and plaintiffs lack standing to 

pursue their claims. Accordingly, this Court should dismiss for lack of jurisdiction. 
 

 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 2 of 32 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

/s/ Christopher Bell 

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

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 26, 2024 (202) 694-1650 

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 3 of 32 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

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

) 

v. ) 

) MEMORANDUM IN SUPPORT 

FEDERAL ELECTION COMMISSION, ) OF SECOND MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS SECOND MOTION TO DISMISS 

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

Acting General Counsel 

lstevenson@fec.gov 

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

Acting Assistant General Counsel 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 26, 2024 (202) 694-1650 

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 4 of 32 

TABLE OF CONTENTS 

PAGE 

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

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

I. THE FEC AND ITS ADMINISTRATIVE 

ENFORCEMENT PROCEDURES...............................................................................2 

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

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

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

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

D. The Instant Proceeding ......................................................................................9 

ARGUMENT...........................................................................................................................10 

I. STANDARD OF REVIEW .........................................................................................10 

II. PLAINTIFFS LACK STANDING BECAUSE 

THEY CANNOT ESTABLISH A COGNIZABLE 

INJURY TO THEIR ORGANIZATIONS’ INTERESTS ...........................................11 

A. The Law of Organizational Standing...............................................................11 

B. This Court’s Categorical Statements Finding Plaintiffs 

Lack an Interest in the Information They Seek Precludes 

Their Establishing an Organizational Injury Here ...........................................13 

C. Even If the Court’s Prior Holdings are Not Preclusive, 

Plaintiffs Cannot Allege a Plausible and Ongoing Injury to 

Their Organizations Stemming From This Long-Concluded 

Presidential Campaign .....................................................................................20 

CONCLUSION........................................................................................................................24 

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 5 of 32 

TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003)................................................ 11 

Am. Anti-Vivisection Soc'y v. U.S. Dep't of Agric., 

946 F.3d 615 (D.C. Cir. 2020)................................................................................................... 21 

Am. Soc’y for the Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 

659 F.3d 13 (D.C. Cir. 2011)............................................................................................... 17, 19 

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................... 12 

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

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

Byrd v. EPA, 174 F.3d 239 (D.C. Cir. 1999) ................................................................................ 24 

Campaign Legal Ctr. v. FEC, Civ. No. 20-730 (D.D.C. July 14, 2022) .............................. 6, 7, 13 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ........................................................ 6 

Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021)............................................ 5, 14 

Campaign Legal Ctr. v. FEC, 578 F. Supp. 3d 1 (D.D.C. 2021)................................5-6, 14, 18-19 

Canonsburg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8 (D.D.C. 2013)..................................13-15 

Chrysafis v. Marks, 573 F. Supp. 3d 831 (E.D.N.Y. 2021).......................................................... 22 

Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of Homeland Sec., 

387 F. Supp. 3d 33 (D.D.C. 2019)........................................................................................20-21 

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............................................................ 12, 20, 23 

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

Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152 (D.C.Cir.2005)...................................... 12 

Dearth v. Holder, 641 F.3d 499 (D.C. Cir. 2011)......................................................................... 12 

Doc Soc’y v. Blinken, 2023 WL 5174304 (D.D.C. Aug. 11, 2023)........................................ 20, 22 

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 6 of 32 

Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F.Supp.2d 30 (D.D.C. 2006)............................. 23 

Elec. Priv. Info. Ctr. v. Fed. Aviation Admin., 892 F.3d 1249 (D.C. Cir. 2018) .................... 12, 21 

Elec. Priv. Info. Ctr. v. Presidential Advisory Commission on Election Integrity, et. al, 

266 F. Supp. 3d 297 (D.D.C. 2017)........................................................................................... 23 

Elec. Priv. Info. Ctr. v. Presidential Advisory Commission on Election Integrity, 

878 F.3d 371 (D.C. Cir. 2017)........................................................................... 15, 16, 19, 21, 23 

Ex parte McCardle, 74 U.S. 506 (1868)....................................................................................... 11 

Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (D.C. Cir. 2015).................................. 12, 21 

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004)................................................................10-11 

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008).............................................................. 10 

Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26 (D.D.C. 2020)..............15-16 

Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 848 F. App’x 428 (D.C. Cir.) ...............15-16, 19 

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................... 12 

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

NWDC Resistance v. Immigr. & Customs Enf’t, 

493 F. Supp. 3d 1003 (W.D. Wash. 2020) .......................................................................... 22, 23 

Ohio A. Phillip Randolph Inst. v. Husted, 350 F. Supp. 3d 662 (S.D. Ohio 2018) ...................... 21 

Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ........................................... 24 

People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 

797 F.3d 1087 (D.C. Cir. 2015)............................................................................... 11, 13, 15, 21 

Privacy Info. Ctr. v. Dep’t of Justice, 416 F.Supp.2d 30 (D.D.C. 2006)...................................... 23 

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

Sierra Club v. Morton, 405 U.S. 727 (1972) ...........................................................................11-12 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)......................................................... 11 

Washington Post v. Dep’t of Homeland Sec., 459 F.Supp.2d 61 (D.D.C. 2006).....................23-24 

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 7 of 32 

Williams v. Lew, 819 F.3d 466 (D.C. Cir. 2016) .......................................................................... 12 

Yamaha Corp. of Am. v. United States, 

961 F.2d 245 (D.C. Cir. 1992)..............................................................................................14-15 

Statutes 

52 U.S.C. § 30102........................................................................................................................... 7 

52 U.S.C. § 30103........................................................................................................................... 7 

52 U.S.C. § 30104........................................................................................................................... 7 

52 U.S.C. § 30106....................................................................................................................... 2, 3 

52 U.S.C. § 30107........................................................................................................................... 2 

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

52 U.S.C. § 30109............................................................................................................... 2, 3, 4, 5 

52 U.S.C. § 30111........................................................................................................................... 2 

52 U.S.C. § 30116........................................................................................................................... 7 

52 U.S.C. § 30125....................................................................................................................... 4, 7 

Rules and Regulations 

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

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

11 C.F.R. § 111.21.......................................................................................................................... 3 

Fed. R. App. P. 4(a)(1)(B) .............................................................................................................. 7 

Fed. R. Civ. P. 12(b)(1)................................................................................................................. 10 

Disclosure of Certain Documents in Enforcement and Other Matters, 

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 8 of 32 

INTRODUCTION 

The Federal Election Commission (“FEC” or “Commission”), hereby renews its motion 

for an order dismissing plaintiff’s complaint, which seeks relief pursuant to 52 U.S.C. § 

30109(a)(8)(C). In a prior proceeding before this Court, plaintiffs were afforded multiple 

opportunities to establish their right to information concerning the long-since terminated 

campaign of Jeb Bush in the 2016 presidential election. In response to the FEC’s first motion to 

dismiss in this matter, the Court found that its prior holding that plaintiffs had not suffered an 

informational injury sufficient to confer standing precluded a contrary finding here. The Court 

further expressed skepticism that its categorial language regarding plaintiffs’ lack of a legally 

cognizable interest in the information they seek would permit plaintiffs to prevail on a closely 

related theory of organizational standing, and invited the parties to address its concerns. 

The Court’s concerns were warranted, as its holdings in both the prior case and in this 

one foreclose any possible standing plaintiffs might have to pursue their claims further. First, 

issue preclusion bars plaintiffs from attempting to establish an interest in the information they 

seek here, a central element of their theory of organizational standing. Second, the law of this 

Circuit is clear that an organizational standing theory must fail when it is effectively identical to 

an informational theory the court has rejected. And third, plaintiffs cannot establish that their 

alleged injury is either ongoing or irreparable, necessary elements to establish their entitlement to 

the injunctive relief they seek. This Court’s prior holdings, along with the march of time, 

preclude plaintiffs from establishing a live case or controversy for this Court to adjudicate. 

Plaintiff’s Complaint should therefore be dismissed in its entirety. 
 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 9 of 32 

BACKGROUND 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30109(a)(2). 

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

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 10 of 32 

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

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

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

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

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

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

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

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

Absent waiver, proceedings on such complaints are covered by confidentiality 

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

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

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

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

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

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

U.S.C. § 30109(a)(12)(B). 

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

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 11 of 32 

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

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

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

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

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

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

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

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

the violation involved.” Id. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

A. Plaintiffs’ Administrative Complaint in MUR 6927 

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

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

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

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

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

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

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

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

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 12 of 32 

B. Plaintiffs’ First Lawsuit Alleging Unlawful Delay 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 13 of 32 

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

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

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

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

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

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

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

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

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

establishing informational injury. Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 14 of 32 

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

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

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

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

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

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

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

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

C. Commission Consideration of MUR 6927 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2018), https://www.fec.gov/files/legal/murs/6927/6927_15.pdf).) That vote split 2-2, with then7 
 

 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 15 of 32 

Commissioners Hunter and Petersen dissenting.1 (Id.) A subsequent vote to find reason to 

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

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

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

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

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

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

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

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

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

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

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

Commissioners out of a maximum of six. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://www.fec.gov/files/legal/murs/6915/6915_40.pdf (January 11, 2022, close-the-file vote 

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

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

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

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

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Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 16 of 32 

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

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

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

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

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

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

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

2022), https://www.fec.gov/files/legal/murs/6927/6927_26.pdf).) On September 30, 2022, 

Commissioner Weintraub issued a Statement of Reasons explaining her position. (Compl. ¶¶ 94-

96 (citing Statement of Reasons of Comm’r Ellen L. Weintraub (“Weintraub Stmt.”), MURs 

6915 & 6927 (Sept. 30, 2022), https://www.fec.gov/files/legal/murs/6927/6927_27.pdf).) 

D. The Instant Proceeding 

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

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

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

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

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

(Compl. ¶¶ 104-108.) 

On January 13, 2023, the Commission filed a motion to dismiss plaintiffs’ complaint, 

Federal Election Commission’s Motion to Dismiss (Docket No. 12) (the “Motion to Dismiss” or 

“MTD”), which was fully briefed by the parties on March 31, 2023. See Plaintiff’s Response in 

Opposition to Defendant’s Motion to Dismiss (Docket No. 19) (the “Response” or “MTD 

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Resp.”); Federal Election Commission’s Reply in Support of its Motion to Dismiss (Docket No. 

20) (the “Reply” or “MTD Reply”). In its Motion to Dismiss, the Commission argued, inter alia, 

that this Court’s prior determination that plaintiffs lacked standing to pursue their prior case 

precludes plaintiffs from relitigating that issue in a new action based on the same underlying 

facts. (MTD at 13-20.) Plaintiffs opposed the FEC’s grounds for dismissal. (MTD Resp. at 22-

45.) 

On September 26, 2023, this Court issued a Memorandum Opinion and Order (Docket 

No. 23) (the “Opinion” or “Mem. Op.”) in which it agreed that plaintiffs are precluded from realleging an informational injury but found that it did not have a sufficient basis to find that 

plaintiffs are precluded from re-alleging an organizational theory of injury. With regards to 

plaintiffs’ organizational theory of injury, the Court identified “significant hurdles to this 

alternative basis for standing that the parties did not confront in their briefings.” Id. at 2. In 

particular, “the parties did not examine whether the Court’s prior judgments concerning 

informational injury spill over and contaminate the organizational injury asserted here, or 

whether the Plaintiffs plausibly alleged an ongoing injury to their groups stemming from this 

long-passed presidential campaign.” Id. The Court denied the FEC’s motion to dismiss without 

prejudice to renewal, id., and “invite[d] the FEC to renew its jurisdictional challenge with a 

subsequent motion to dismiss” addressing the issues the Court raised. Id. at 29. 

ARGUMENT 

I. STANDARD OF REVIEW 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. PLAINTIFFS LACK STANDING BECAUSE THEY CANNOT ESTABLISH A 

COGNIZABLE INJURY TO THEIR ORGANIZATIONS’ INTERESTS 

A. The Law of Organizational Standing 

For organizational standing, to determine whether an organization's injury is concrete and 

demonstrable or merely a setback to its abstract social interests, a plaintiff must first show “that 

the agency’s action or omission to act injured the organization’s interest,” and second, the 

plaintiff must show that it “used its resources to counteract that harm.” People for the Ethical 

Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1094 (D.C. Cir. 2015) (“PETA”) 

(citation omitted) (cleaned up). “[A] mere [organizational] ‘interest in a problem,’ no matter 

how longstanding the interest and no matter how qualified the organization is in evaluating the 

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problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ ” 

for standing purposes. Sierra Club v. Morton, 405 U.S. 727, 739 (1972). 

Instead, injury in fact “requires more than an injury to a cognizable interest. It requires 

that the party seeking review be himself among the injured.” Id. at 734-35. For instance, 

although a “person who observes or works with a particular animal threatened by a federal 

decision is facing perceptible harm,” that does not mean that “anyone who observes or works 

with an endangered species, anywhere in the world, is appreciably harmed by a single project 

affecting some portion of that species with which he has no more specific connection.” Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 566-67 (1992). Nor will standing be found where the alleged 

“service . . . impaired is pure issue-advocacy[.]” PETA at 1093-94 (citing Ctr. for Law & Educ. 

v. Dep't of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005)); see Food & Water Watch, Inc. v. 

Vilsack, 808 F.3d 905, 921 (D.C. Cir. 2015) (no ongoing injury where plaintiffs did not allege 

that the government “restricts the flow of information that FWW uses to educate its members” 

rather than merely impeding their advocacy efforts); Elec. Priv. Info. Ctr. v. Fed. Aviation 

Admin., 892 F.3d 1249, 1256 (D.C. Cir. 2018) (“EPIC II”) (plaintiffs failed to establish standing 

based upon “vague assertions in its brief that sound in pure issue advocacy”). 

Finally, to establish the right to injunctive relief, including under an organizational 

theory of standing, plaintiffs must prove the existence of an ongoing or future injury. “[W]here 

the plaintiffs seek declaratory and injunctive relief, past injuries alone are insufficient to establish 

standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Instead, Plaintiffs must 

“establish an ongoing or future injury that is ‘certainly impending.’ ” Williams v. Lew, 819 F.3d 

466, 472 (D.C. Cir. 2016) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)); see City 

of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). 

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B. This Court’s Categorical Statements Finding Plaintiffs Lack an Interest in 

the Information They Seek Precludes Their Establishing an Organizational 

Injury Here. 

In its Opinion the Court concluded that its sole decision addressing plaintiffs’ 

organizational theory of standing, RTR III, “does not preclude Plaintiffs from claiming 

organizational standing here.” Opinion at 27. The Court re-iterated its observation in RTR III 

that “the elements of informational and organizational standing diverge in important respects[,]” 

namely that “[w]hile a party asserting informational injury must show it is legally entitled to the 

information, a plaintiff claiming organizational injury need only demonstrate that deprivation of 

the information impairs its daily operations.” Id. (citing RTR III at 8 n.2 (in turn citing PETA, 

797 F.3d at 1092, 1095–96)). At the same time, the Court recognized that even if plaintiffs’ 

organizational theory permits them to demonstrate a mere “interest” in the disclosure of 

coordinated spending (combined with interference with their daily operations), this nonetheless 

clashed with the Court’s “categorical language that Plaintiffs have ‘no legally cognizable interest 

in labeling spending coordinated if that spending has already been disclosed in some format’ ” 

and suggesting that this “may slam shut that door to federal court.” Id. (citing RTR I, 520 F. 

Supp. 3d at 48). 

The Court’s concerns are warranted. While issue preclusion may not bar plaintiffs from 

alleging an organizational injury here, it does bar the Court from revisiting its holding that 

plaintiffs lack a cognizable legal interest in the information they seek, and that holding is fatal to 

plaintiffs’ organizational theory. Three elements must be satisfied for a final judgment to 

preclude litigation of an issue in a subsequent case: “[1], the same issue now being raised must 

have been contested by the parties and submitted for judicial determination in the prior case[; 2] 

the issue must have been actually and necessarily determined by a court of competent 

jurisdiction in that prior case[; and] [3] preclusion in the second case must not work a basic 

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unfairness to the party bound by the first determination.” Canonsburg Gen. Hosp. v. Sebelius, 

989 F. Supp. 2d 8, 16-17 (D.D.C. 2013) (brackets in original) (quoting Martin v. Dep’t of 

Justice, 488 F.3d 446, 454 (D.C. Cir. 2007). “A court conducting an issue preclusion analysis 

does not review the merits of the determinations in the earlier litigation.” Id. at 17 (quoting 

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

These criteria are easily met here. Whether plaintiffs have a legally cognizable interest in 

information regarding allegedly coordinated spending between the Bush campaign and the Right 

to Rise PAC was central to the prior litigation, and was thus both “contested by the parties” and 

“necessarily determined” by this Court. Canonsburg, 989 F. Supp. 2d at 16-17. In RTR I the 

Court observed that “Wertheimer held that plaintiffs have no legally cognizable interest in 

labeling spending ‘coordinated’ if that spending has already been disclosed in some format . . . 

which is precisely the case for the expenditures plaintiffs seek to uncover through this lawsuit[.]” 

RTR I at 48 (emphasis added). Indeed, whether the information plaintiffs sought was already a 

matter of public record was the subject of “an entire round of briefing and a hearing to this 

issue.” Opinion at 24 (citing RTR II, 578 F. Supp. 3d at 5–7). Nor can there be any dispute that 

the information plaintiffs sought in that litigation is the same they seek here, given that in both 

cases plaintiffs challenge the Commission’s actions with respect to MUR 6927. See Compl. ¶¶ 

3-4 (describing allegations in MUR 6927). And preclusion in this case would not work a “basic 

unfairness” to plaintiffs, the parties “bound by the first determination.” Canonsburg, 989 F. 

Supp. 2d at 17. In examining “unfairness” for the purposes of issue preclusion, the D.C. Circuit 

has been primarily concerned with whether “the losing party clearly lacked any incentive to 

litigate the point in the first trial, but the stakes of the second trial are of a vastly greater 

magnitude.” Canonsburg, 989 F. Supp. 2d at 18–19 (quoting Yamaha Corp. of Am. v. United 

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States, 961 F.2d 245, 254 (D.C. Cir. 1992)). Plaintiffs plainly had incentive to defend their legal 

interest in the information they sought, and as noted, were given ample opportunities to do so by 

this Court. 

Because plaintiffs are precluded from establishing a legally cognizable interest in the 

information they seek, their organizational theory must fail. Even if plaintiffs’ organizational 

theory does not require them to establish a “legal right to the disclosure of coordinated 

expenditures[,]” as the Court has previously explained, it does require them to establish “a 

weighty interest in those disclosures[.]” Opinion at 27; see PETA, 797 F.3d at 1094 

(organizational injury requires showing that “that the agency’s action or omission to act injured 

the organization’s interest”). Simply put, plaintiffs “cannot ground organizational injury on a 

non-existent interest.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election 

Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017) (“EPIC”). 

Moreover, even in cases where a prior holding does not per se preclude the courts from 

considering whether plaintiffs have suffered organizational harm, this Circuit has found that 

where an alleged organizational injury is “part and parcel of [an] alleged informational injury” 

the court has rejected, the organizational theory must “fail with it.” Lawyers’ Comm. for 9/11 

Inquiry, Inc. v. Wray, 848 F. App’x 428, 431 (D.C. Cir.) (per curiam), cert. denied, 142 S. Ct. 

228, 211 L. Ed. 2d 101 (2021) (citing Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 424 F. 

Supp. 3d 26, 33 (D.D.C. 2020)). In Lawyers’ Committee, two organizations and one individual 

brought action seeking an order requiring the FBI to evaluate and report on certain evidence 

related to the terrorist attacks of September 11, 2001. That court first determined that plaintiffs 

lacked an informational injury sufficient to confer standing, then found plaintiffs also failed to 

establish an organizational injury. This latter holding was based in large part on the court’s 

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determination that the alleged organizational injury was “part and parcel of the alleged 

informational injury[,]” and because “the organizations have suffered no informational injury . . . 

the alternative theories also fail.” This holding was echoed by the Circuit Court on appeal. 

Wray, 848 F. App'x at 431 (organizational theories of injury were “[t]o a large extent . . . ‘part 

and parcel of the alleged informational injury’ and thus fail with it.”) (quoting Lawyers’ Comm. 

for 9/11, 424 F. Supp. 3d at 33)). 

The Lawyers Committee court relied to a large extent on this Circuit’s opinion in EPIC v. 

Presidential Advisory Commission on Election Integrity, 878 F.3d 371 (D.C. Cir. 2017), where 

the court similarly rejected an organizational theory of injury closely linked to an alleged 

informational injury. In that case EPIC, an advocacy organization, challenged the government's 

“failure to produce a privacy impact assessment” under section 208 of the E-Government Act, 

and alleged both informational and organizational theories of injury. Id. at 377. The court 

rejected both theories “without necessarily agreeing that they are in fact analytically separate[,]” 

after observing that EPIC “identifie[d] no organizational harm unrelated to its alleged 

informational injury.” Id. at 377–78. After finding that EPIC failed to establish an informational 

interest because section 208 did not protect the ability of nonprofits to ensure transparency, the 

court determined that EPIC’s organizational theory of injury was based on an effectively 

identical informational interest, and “EPIC thus could not ‘ground organizational injury on a 

non-existent interest.’” Id. at 379. 

Notably, the EPIC court did not hold that an organizational theory of standing must 

always fail where plaintiffs fail to establish an informational injury. Instead, in a concurring 

opinion, Judge Williams agreed that EPIC asserted no organizational harms unrelated to its 

alleged informational injury, and helpfully contrasted this situation with a case in which the court 

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correctly analyzed the two theories separately. See id. at 381 (Williams, J., concurring) (citing 

and discussing Am. Soc’y for the Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 

13 (D.C. Cir. 2011)). Specifically, in Feld Entertainment the plaintiff complained about a circus 

group’s techniques for controlling its elephants. 659 F.3d at 17. That plaintiff’s theory of 

informational injury was that the group’s failure to seek a permit for its activity deprived it of 

information “to which it would be entitled in the course of a permit proceeding.” Id. at 19. Its 

theory of organizational injury, meanwhile, was that “it had to expend resources to combat [the 

group’s] treatment of elephants.” Id. at 19, 26. Therefore, “the organizational injury had nothing 

to do with the informational injury[,]” as that plaintiff “expended resources because of the circus 

group’s alleged mistreatment of elephants, not because anyone had deprived it of information.” 

Wray, 424 F. Supp. 3d at 34 (describing and citing Feld, 659 F.3d at 19, 26). 

Even if issue preclusion did not forbid the reconsideration of plaintiffs’ legal interest in 

the information they seek, these cases would thus present the question whether plaintiffs 

allegedly distinct theories of informational and organizational injury in this case are sufficiently 

similar that they must rise or fall together. That is, the Court would still need to determine 

whether plaintiffs’ organizational and informational theories of injury are distinct, as in Feld 

Entertainment, or the same, as in Lawyers Committee and EPIC. The answer would be the latter. 

Lawyers Committee and EPIC foreclose plaintiffs’ reliance on an organizational theory of 

standing that is indistinguishable from its informational theory. 

Here, plaintiffs’ informational and organizational theories of injury are effectively 

identical, and this Court’s “categorical” language rejecting plaintiffs’ interest in the information 

they seek is fatal to both. Opinion at 27. As this Court observed, plaintiffs’ alleged 

“informational injury” argued that the FEC “depriv[ed] them of FECA-required disclosures 

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related to Bush’s testing-the-waters activities and coordinated expenditures with Right to Rise[.]” 

Opinion at 12 (emphasis added). Similarly, plaintiffs’ assertions of organizational injury derive 

“from the Commission’s alleged failure to enforce the law to require the Bush campaign and 

Right to Rise to divulge ‘required FECA disclosure information that both plaintiffs need to 

inform the public about candidates’ financial support.’” Id. at 26-27 (quoting MTD Resp. at 40 

(in turn citing Compl. ¶¶ 14–15, 19)) (emphasis added). In both cases this “FECA disclosure 

information” is the same. It consists of “(1) Bush’s ‘testing the waters’ and/or campaign 

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

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

campaign arising from the extensive involvement of Bush and his agents in RTR’s formation and 

operations, and the possible coordination of their activities.” Compl. ¶ 7. The Complaint’s only 

reference to plaintiffs’ “injur[ies]” refers to precisely this set of information, id., and the 

Complaint does not distinguish between the information giving rise to an informational injury vs. 

the information impacting plaintiffs’ organizational activities. 

Furthermore, as the Court correctly observed, plaintiffs here do not identify any new 

testing-the-waters expenditures that were not disclosed previously, providing this Court with no 

basis to revisit its conclusion that plaintiffs lack a cognizable interest in the labeling of this 

information as “coordinated” when it has already been disclosed in some form. In its Opinion, 

the Court rejected plaintiffs’ argument that the “dismissal of their administrative complaints and 

ensuing release of the MURs, including the Office of General Counsel’s findings, provided them 

with the facts they need to assert an informational injury[,]” thus qualifying their claims for the 

“curable defect” exception to issue preclusion. Opinion at 23-24. The court noted that “just as 

such speculation about unreported testing-the-waters expenditures did not suffice in RTR II, it 

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does not cut it here[.]” Id. at 24. Furthermore, “Plaintiffs fail to explain why they were unable 

to identify these alleged testing-the-waters events in the delay case when the Court afforded them 

ample opportunities to do so,” despite the relevant information being publicly available. Id. 

Plaintiffs did not identify additional spending that could save their claim, and have lost their 

opportunity to do so. 

The “disclosure” at issue in this case is thus the same as the Court considered in RTR I, II, 

and III, and with respect to plaintiffs’ informational and organizational theories. Plaintiffs’ 

failure to identify any previously undisclosed spending, combined with their lack of a legally 

cognizable interest in relabeling the spending that has already been disclosed, forecloses any 

possible further “interest” organizational plaintiffs could have in this proceeding. Where a 

plaintiff fails to establish an informational interest, and “identifies no organizational harm 

unrelated to its alleged informational injury[,]” it may not “ground organizational injury on a 

non-existent interest.” EPIC, 878 F.3d at 377-79 (citing Feld, 659 F.3d at 24-25)) (failure to 

establish an interest in the disclosure of privacy impact under section 208 of the E-Government 

Act was fatal to informational and organizational theories of standing); Wray, 848 F. App’x at 

430 (failure to establish legally cognizable interest in the public disclosure of terrorism evidence 

was fatal to informational and organizational theories of standing). 

Plaintiffs are precluded from establishing an interest in the information they seek, and 

even if they were not, the failure of their informational theory is fatal to their organizational 

theory brought on the same basis and based upon identical facts. Plaintiffs’ organizational 

theory is “part and parcel” to the informational theory, and they must fall together. Id. at 431. 

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C. Even If the Court’s Prior Holdings are Not Preclusive, Plaintiffs Cannot 

Allege a Plausible and Ongoing Injury to Their Organizations Stemming 

From This Long-Concluded Presidential Campaign. 

In its Opinion the Court correctly observed that plaintiffs must “prove an ongoing injury 

that the Court can remedy with the injunctive relief sought.” Opinion at 28-29 (citing City of Los 

Angeles v. Lyons, 461 U.S. 95, 105 (1983)) (emphasis added). In addition, injunctive relief 

requires the demonstration of irreparable harm. Here, even assuming plaintiff organizations 

were injured by a lack of FECA-required reporting, this harm is neither ongoing nor irreparable. 

Because previously reported information about a former presidential candidate who has not run 

for public office since February of 2016 cannot meet the standards for injunctive relief, this is an 

independent and sufficient reason for the Court to dismiss this matter. 

It is the law of this Circuit that an organization’s lack of access to discrete, one-off pieces 

of information is insufficient to establish standing, and instead plaintiffs must point to a stream 

of information (or lack thereof) that plaintiffs seek to use in a specific, regular way as part of its 

established activities. “Recent caselaw in this Circuit suggests that an informational injury is 

sufficiently concrete if an organization wishes to use a stream of information in a specific, 

regular way as part of its established activities[;]” while at the same time “[t]he Circuit has [] 

consistently rejected allegations of informational injury based solely on an organization’s lack of 

access to discrete, one-off pieces of information[.]” Doc Soc’y v. Blinken, Civ. No. 19-3632, 

2023 WL 5174304, at *6 (D.D.C. Aug. 11, 2023) (listing and describing cases). 

Where an organization alleges that it was denied information at a particular point or 

points in time, this is insufficient to establish an ongoing injury for purposes of an injunction. 

For instance, in Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of Homeland Sec., 387 

F. Supp. 3d 33, 48 (D.D.C. 2019), the court found that immigrant advocacy groups failed to 

establish ongoing or future injury based on Department of Homeland Security’s (DHS) alleged 

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failure to create records of agency policy and decisions, because the evidence they put forward 

indicated only that “the agency refused to issue guidance in the first place,” not that the agency 

“failed to memorialize policy decisions or guidance” on an ongoing basis. See id. (“claim three 

does not point to an ongoing or future injury and therefore that Plaintiffs lack standing to bring 

that claim”). This follows a similar pattern in this Circuit and elsewhere where courts have 

declined to issue injunctions based on an alleged lack of access to a single discreet report or 

piece of information. See EPIC, 878 F.3d at 378–79 (upholding denial of preliminary injunction 

based on defendant’s failure to produce a single “privacy impact assessment,” even if plaintiff 

wished to use that information to create educational materials); Ohio A. Phillip Randolph Inst. v. 

Husted, 350 F. Supp. 3d 662 (S.D. Ohio 2018) (finding no ongoing violation of the National 

Voter Registration Act resulting from inadequacy of prior confirmation notices, where state 

revised confirmation notice and intended to comply with the NVRA); Food & Water Watch, 808 

F.3d at 921 (finding no ongoing injury where plaintiffs did not allege that the government 

“restricts the flow of information that FWW uses to educate its members” rather than merely 

impeding their advocacy efforts); EPIC II, 892 F.3d at 1256 (determining that plaintiffs failed to 

establish standing based upon “vague assertions in its brief that sound in pure issue advocacy”). 

In contrast, this Circuit has been more receptive to claims that an organization has been 

denied access to a stream of information it utilizes in a specific, regular way as part of its 

established activities. See PETA, 797 F.3d at 1095–96 (finding concrete injury where an 

agency’s alleged failure to apply a regulatory requirement meant the agency was not issuing 

reports that would have aided the plaintiff in preparing its own educational materials for the 

public, which it ordinarily did); Am. Anti-Vivisection Soc'y v. U.S. Dep't of Agric., 946 F.3d 615, 

619 (D.C. Cir. 2020) (concluding there was concrete injury where an agency did not promulgate 

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regulations that would have obviated informational materials that it prepared, saving the plaintiff 

time and money); Doc Soc'y, 2023 WL 5174304, at *6 (finding standing based upon impairment 

of plaintiffs’ activities based upon their regular use of information posted on social media for 

research); NWDC Resistance v. Immigr. & Customs Enf’t, 493 F. Supp. 3d 1003, 1017 (W.D. 

Wash. 2020) (holding that plaintiffs sufficiently alleged “a pattern of ongoing selective 

enforcement” based upon a demonstrated fear that their members would be subject to retaliation 

for speaking out). 

Here, even assuming the truth of plaintiffs’ allegations, they can point to no more than 

the denial of information at a particular point and time, and certainly cannot claim that they are 

suffering an ongoing injury from a “stream of information” that has long gone stale.3 Plaintiffs 

maintain they have “had to divert resources from other planned organizational needs to research 

relevant law and fill in the gaps to the best of their ability, including by explaining to reporters, 

researchers, and partner organizations how they might attempt to find information not properly 

reported.” Opinion at 41–42; see also Compl. ¶¶ 17, 20. However, plaintiffs have failed to 

establish an “ongoing injury” from this 2016-era alleged violations. To the extent CLC had a 

concrete interest in a “stream of information” in the form of campaign reporting by the Jeb Bush 

campaign, that stream dried up no later than February 2016, when Bush suspended his 

campaign,

4 and CLC makes no allegation of an ongoing policy of withholding information or of 

3 In addition, even if plaintiffs could demonstrate that an injunction here would mitigate 

their “damages,” this would not be sufficient to establish their entitlement to an injunction. 

Chrysafis v. Marks, 573 F. Supp. 3d 831 (E.D.N.Y. 2021) (“A movant for extraordinary relief, 

that is, a preliminary injunction, cannot mask an ongoing failure on its part to mitigate its 

damages as an ongoing instance of irreparable harm.”).

4 MJ Lee and Ashley Killough, Jeb Bush suspends his campaign, CNN (Feb. 21, 2016), 

https://www.cnn.com/2016/02/20/politics/jeb-bush-drops-out-2016/index.html. 

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continuing selective enforcement. Compare NWDC, 493 F. Supp. 3d at 1017 (“Unlike the 

plaintiff in Lyons, Plaintiffs here do allege a pattern of ongoing selective enforcement.”). 

The Campaign Legal Center claims “reporters often contact CLC for guidance as to 

whether or where they can find the campaign finance information that is not being properly 

reported.” Id. ¶ 17. Even assuming the truth of this assertion, it does not speak to whether the 

information plaintiffs seek in this case remains relevant to such calls today. The Court 

appropriately expressed skepticism that such is the case. Opinion at 28 (“But are reporters still 

dialing CLC’s line to ask about Jeb Bush’s campaign tabs from 2015? That, after all, is what 

Plaintiffs must demonstrate to prove an ongoing injury that the Court can remedy with the 

injunctive relief sought.”) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). And to 

the extent CLC continues to divert resources based on a lack of reporting by a candidate whose 

last campaign ended nearly eight years ago, plaintiffs’ alleged expenditures “cannot plausibly be 

said to flow from the claimed unlawful conduct; they [are] instead ‘a self-inflicted budgetary 

choice that cannot qualify as an injury in fact.’” EPIC, 878 F.3d at 379 (quoting Am. Soc'y for 

Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 25 (D.C. Cir. 2011)). 

Finally, the injunctive relief plaintiffs seek also requires the demonstration of irreparable 

harm, a barrier plaintiffs cannot meet here. While it is true that “the non-disclosure of 

information to which a plaintiff is entitled, under certain circumstances itself constitutes an 

irreparable harm[,]” this is the case only “where the information is highly relevant to an ongoing 

and highly public matter.” EPIC, 266 F. Supp. 3d at 319 (citing Elec. Privacy Info. Ctr. v. Dep't 

of Justice, 416 F.Supp.2d 30, 41 (D.D.C. 2006) (“information vital to the current and ongoing 

debate surrounding the legality of the Administration's warrantless surveillance program”); 

Washington Post v. Dep't of Homeland Sec., 459 F.Supp.2d 61, 75 (D.D.C. 2006) (FOIA request 

23 
 

 

 

 

 

 

Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 31 of 32 

“predicated on a matter of current national debate”). In contrast, “stale information is of little 

value ... [,]” Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988), and the 

harm in delaying disclosure is not necessarily redressed even if the information is provided at 

some later date, see Byrd v. EPA, 174 F.3d 239, 244 (D.C. Cir. 1999) (“Byrd’s injury, however, 

resulted from EPA’s failure to furnish him with the documents until long after they would have 

been of any use to him.”). Previously reported information about a former candidate who has not 

run for public office since February of 2016 clearly cannot meet this standard. 

CONCLUSION 

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

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

/s/ Christopher H. Bell 

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

Acting Assistant General Counsel 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 26, 2024 (202) 694-1650 

24 
 

 

Case 1:22-cv-03319-CRC Document 27 Filed 01/26/24 Page 32 of 32 

CERTIFICATE OF SERVICE 

I hereby certify that on January 26, 2024, I served the foregoing pursuant to Fed. R. Civ. 

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

/s/ Christopher H. Bell 

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

Acting Assistant General Counsel 

chbell@fec.gov 

25