Case 1:22-cv-01422 Document 1 Filed 05/20/22 Page 1 of 29 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

HERITAGE ACTION FOR AMERICA, 

214 Massachusetts Ave., NE, 

Suite 400 

Washington, DC 20002, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

1050 First Street, NE 

Washington, DC 20463, 

LISA J. STEVENSON, in her official 

capacity as Acting General Counsel of 

the Federal Election Commission, 

1050 First Street, NE 

Washington, DC 20463, 

Defendants. 

Civil Action No. 1:22-cv-01422 

COMPLAINT FOR 

DECLARATORY AND 

INJUNCTIVE RELIEF 

Plaintiff Heritage Action for America (Heritage Action), by and through its 

undersigned attorneys, alleges as follows: 

INTRODUCTION 

1. This Administrative Procedure Act (APA) case challenges a policy 

adopted by the Federal Election Commission (FEC or Commission) and its Acting 

General Counsel (collectively, Defendants) to deliberately conceal the FEC 

Commissioners’ voting records and statements of reasons in otherwise terminated 

enforcement proceedings—even though the APA, the Federal Election Campaign Act 
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(FECA or Act), the Commission’s own regulations, and D.C. Circuit precedent 

expressly require the FEC to release these matter records. 

2. The Commission’s concealment policy allows the FEC to adjudicate core 

First Amendment liberties in secret enforcement proceedings. The concealment 

policy’s purpose is to convey the false impression to complainants, respondents, and 

the courts that the FEC has not yet taken action on administrative complaints in its 

enforcement matters and to manipulate the courts into enforcing FECA against 

respondents when in fact the agency has already voted on the merits of the 

administrative complaint and terminated the matter because fewer than four 

Commissioners voted in favor of taking enforcement action. 

3. Heritage Action and seven other administrative respondents have been 

the victims of this unlawful concealment policy thus far. Campaign Legal Center 

(CLC) has now filed a civil enforcement action against Heritage Action based on the 

false premise that the FEC never acted on CLC’s administrative complaint. CLC v. 

Heritage Action, No. 1:22-cv-01248-CJN (D.D.C.). 

4. Yet over a year ago, the Commissioners did act on the complaint, with 

the FEC failing to garner four votes to find reason to believe that Heritage Action 

violated FECA as alleged in an administrative complaint filed by CLC. Under FECA, 

at least four Commissioners must vote to find reason to believe that a violation of law 

occurred based on the complaint in order to proceed with enforcement and an 

investigation of the complaint’s allegations. Because the Commission was split in its 

vote on the merits of the administrative complaint, and did not garner four votes in 

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support of enforcement, the matter was terminated. Pursuant to the APA, FECA, 

FEC regulations, and D.C. Circuit precedent, the Commission’s General Counsel was 

required to notify the parties of the termination of the proceedings and to publicly 

release the voting records and any statement of reasons by the Commissioners. 

5. Instead of following the law, the Commissioners who voted in favor of 

taking enforcement action against Heritage Action—Vice Chair Steven T. Walther 

and Commissioners Shana M. Broussard and Ellen L. Weintraub—departed from 

longstanding policy and practice by voting against administratively closing the file in 

the matter involving Heritage Action. 

6. So even though the matter against Heritage Action was terminated 

because the Commission lacked the votes to proceed to an investigation of the 

administrative complaint, the Commission has not notified Heritage Action of its 

action on the complaint or publicly disclosed the voting records or any statement of 

reasons, as required by law. 

7. Commissioners Walther, Broussard, and Weintraub took this action— 

as they did in seven other recent enforcement matters—for the purpose of concealing 

from the public and the courts the fact that the Commission has acted on the 

administrative complaints and to expose the respondents to direct civil lawsuits. 

FECA allows complainants to sue the Commission in federal court if it “fail[s] ... to 

act” on an administrative complaint and then to sue the respondent directly if the 

FEC still fails to act. 52 U.S.C. § 30109(a)(8)(A), (C). By refusing to administratively 

close the file (which the Commission is using as a pretext to block release of its voting 

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records and statements of reasons), the Commission has left the public and courts 

with the false impression that it has not taken action on CLC’s administrative 

complaint against Heritage Action, thus deliberately subjecting the Commission and 

Heritage Action to direct civil lawsuits on false pretenses. 

8. On top of this concealment, Commissioners Walther, Broussard, and 

Weintraub have declined to authorize the Commission’s Office of General Counsel to 

defend the FEC in court, which likewise requires a majority vote of Commissioners 

to authorize. Thus, when a complainant files a lawsuit against the FEC for allegedly 

failing to act on an administrative complaint—made possible because these three 

Commissioners object to administratively closing the file and releasing the matter 

records—they have ensured that the court will enter a default judgment against the 

Commission as well. And, by continuing to prevent the public release of an 

enforcement matter’s records, Commissioners Walther, Broussard, and Weintraub 

have ensured that the FEC cannot prove conformity to the court’s judgment, thus 

allowing the complainant to sue the respondent directly in federal court. 

9. That is precisely what happened to Heritage Action. As a result of the 

FEC’s concealment policy adopted blocking public release of the matter records, 

District Judge Kelly authorized CLC to file a direct lawsuit against Heritage Action 

based on the false premise that the Commission had failed to act on CLC’s 

administrative complaint. See CLC v. FEC, No. 1:21-cv-0406-TJK (D.D.C.), appeal 

filed (D.C. Cir. May 20, 2022). 

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10. But the Commission in fact did act on CLC’s administrative complaint. 

Heritage Action obtained heavily redacted voting records through the Freedom of 

Information Act showing that the Commission took action on CLC’s administrative 

complaint in April 2021. See Exhibit A, attached. The FEC failed to initiate an 

enforcement action, meaning that fewer than four Commissioners voted to find 

reason to believe that Heritage Action had violated the law based on the complaint. 

The Commissioners who voted against finding reason to believe submitted a 

statement of reasons in support of their decision not to take enforcement action (as 

required by the D.C. Circuit). The votes by these Commissioners meant that the 

matter was terminated because it lacked the requisite support of four Commissioners 

to proceed to an investigation. Under the APA, FECA, FEC regulations, and D.C. 

Circuit precedent, Defendants had ministerial and non-discretionary duties to notify 

the parties and publicly release the voting records and any statement of reasons. 

11. Defendants’ failure to take these ministerial steps is “arbitrary and 

capricious” and “not in accordance” with law in violation of the APA. Moreover, the 

Commission has “unlawfully withheld” and “unreasonably delayed” the release of the 

matter records under 5 U.S.C. § 706(1). This Court should “hold unlawful and set 

aside” the Commission’s unlawful concealment policy and issue an order compelling 

Defendants to publicly release the Commission’s voting records and any statement of 

reasons. 

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JURISDICTION AND VENUE 

12. This Court has jurisdiction over this case under 28 U.S.C. §§ 1331 and 

1361. 

13. This Court has the authority to grant declaratory, injunctive, and 

mandamus relief, set aside unlawful agency action, and compel the FEC to take 

ministerial and non-discretionary steps unlawfully withheld or unreasonably delayed 

under the Declaratory Judgment Act, the Mandamus Act, the APA, and this Court’s 

inherent equitable powers. See 28 U.S.C. §§ 1361, 2201, 2202; 5 U.S.C. §§ 555, 702– 

704, 706. 

14. Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(A), (B) and 

5 U.S.C. § 703. 

PARTIES 

15. Plaintiff Heritage Action is a social welfare organization tax exempt 

under section 501(c)(4) of the Internal Revenue Code. Heritage Action was 

established to promote and advocate for conservative public policies based on the 

principles of free enterprise, limited government, individual freedom, traditional 

American values, and a strong national defense. Heritage Action is the 

administrative respondent in FEC Matter Under Review (MUR) 7516. 

16. Defendant FEC is an independent federal agency headquartered in 

Washington, D.C. 

17. Defendant Lisa J. Stevenson is the Acting General Counsel of the FEC 

with responsibility for administratively closing the file, notifying the parties of the 

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Commission’s actions in enforcement matters, and releasing the Commissioners’ 

voting records and statements of reasons. 

STATEMENT OF FACTS 

I. The FEC’s Bipartisan Structure & Enforcement Actions 

18. The FEC is an independent federal agency composed of six members 

appointed by the President by and with the advice and consent of the Senate. 52 

U.S.C. § 30106(a). 

19. Perhaps the most important feature of the FEC’s design is its bipartisan 

makeup. In order to prevent any one political party from changing the regulatory 

regime or using the FEC’s enforcement process for partisan gain, Congress carefully 

structured the Commission to consist of no more than three members affiliated with 

the same political party. Id. Moreover, “[a]ll decisions of the Commission with 

respect to the exercise of its duties and powers” must be made “by a majority vote of 

the members of the Commission.” Id. § 30106(c). 

20. The FEC annually elects a Chairman and Vice Chairman from among 

its members to serve for a term of one year. The Chairman and the Vice Chairman 

may not be affiliated with the same political party. Id. § 30106(a)(5). 

21. The FEC has “exclusive jurisdiction with respect to the civil 

enforcement” of FECA. Id. § 30106(b)(1). 

22. Under FECA, “[a]ny person who believes a violation of [the] Act ... has 

occurred, may file a complaint with the Commission.” Id. § 30109(a)(1). 

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23. So long as the complaint meets certain technical requirements, 11 

C.F.R. § 111.4, the Commission assigns the complaint a enforcement matter file 

number (or MUR number), informs “each respondent that the complaint has been 

filed, advise[s] them of Commission compliance procedures, and enclose[s] a copy of 

the complaint.” 11 C.F.R. § 111.5(a)-(b). 

24. The only action for the six-member FEC to take on an administrative 

complaint under FECA is to vote whether the Commission has sufficient reason to 

believe a violation of FECA or FEC regulations has occurred to warrant an 

enforcement action and investigation of the complaint’s allegations. 52 U.S.C. 

§ 30109(a)(2). Before initiating an enforcement action and investigation of the 

complaint, the Commission must first “determine[], by an affirmative vote of 4 of its 

members, that it has reason to believe that a person has committed” a violation of the 

Act. Id.; see id. § 30106(c) (“[T]he affirmative vote of 4 members of the Commission 

shall be required in order for the Commission to take any action in accordance with 

paragraph ... (9) of section 30107(a)”); id. § 30107(a)(9) (the Commission has the 

power “to conduct investigations and hearings expeditiously”). 

25. When the Commission splits in its vote on whether to find reason to 

believe a violation of the Act and lacks the four votes necessary to initiate an 

enforcement action under FECA based on the administrative complaint (typically by 

a vote of 3-3), the Commission may not proceed to the investigatory phase, and the 

result is a so-called “deadlock dismissal” of the complaint. Common Cause v. FEC, 

842 F.2d 436, 448 (D.C. Cir. 1988); see CREW v. FEC, 993 F.3d 880, 891 (D.C. Cir. 

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2021); DCCC v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) (R.B. Ginsburg, J.). In 

such cases, the D.C. Circuit has held that “[t]he Commission or individual 

Commissioners” who did not find reason to believe that a violation has occurred and 

therefore did not vote to pursue enforcement must issue a statement of reasons so 

that any reviewing court may determine “whether reason or caprice determined” the 

agency’s action. DCCC, 831 F.2d at 1135. 

26. In this situation, the FEC must publicly disclose its action. “If the 

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

Commission shall make public such determination.” 52 U.S.C. § 30109(a)(4)(B)(ii). 

FEC regulations require that “[i]f the Commission finds no reason to believe, or 

otherwise terminates its proceedings, the General Counsel shall so advise both 

complainant and respondent by letter.” 11 C.F.R. § 111.9(b). “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.” Id. § 111.20(a). 

27. By longstanding policy and practice, the Commission has traditionally 

held an administrative vote to close the enforcement file, authorizing the General 

Counsel to publicly release of its matter files in terminated proceedings. 

28. This public release allows an aggrieved complainant to then challenge 

the FEC’s action in court. “Any party aggrieved by an order of the Commission 

dismissing a complaint filed by such party under [FECA], or by a failure of the 

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Commission to act on such complaint during the 120-day period beginning on the date 

the complaint is filed, may file a petition with the United States District Court for 

the District of Columbia.” 52 U.S.C. § 30109(a)(8)(A). In any such case, “the court 

may declare that the dismissal of the complaint or the failure to act is contrary to 

law, and may direct the Commission to conform with such declaration within 30 days, 

failing which the complainant may bring, in the name of such complainant, a civil 

action to remedy the violation involved in the original complaint.” Id. 

§ 30109(a)(8)(C). 

II. The Commission Adopts The Concealment Policy By Departing From 

Longstanding Policy and Practice of Administratively Closing The 

File After The Commission Failed to Garner Four Votes to Enforce the 

Complaint 

29. For decades, the Commission consistently adhered to a policy and 

practice of administratively closing an enforcement matter file after fewer than four 

Commissioners voted to find reason to believe a violation had occurred and initiate 

an enforcement action based on the complaint. See, e.g., Certification, MUR 5024 

(Nov. 4, 2003) (failing to find reason to believe by a vote of 3-3 but deciding by a vote 

of 6-0 to close the file and send the appropriate letters); Certification, MUR 6396 (Dec. 

5, 2013) (same); Certification, MURs 6781, 6786, and 6802 (March 19, 2019) (failing 

to find reason to believe by a vote of 2-2 but deciding by a vote of 4-0 to close the file 

and send the appropriate letters); FEC’s Partial Mot. to Dismiss at 4, CREW v. FEC, 

No. 1:16-cv-259-BAH (D.D.C. Apr. 19, 2016), Dkt. No. 12 (“The Commission voted on 

November 17, 2015, and was evenly split three-to-three on whether to find reason to 

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believe that Crossroads GPS violated the law. As a result of that split vote, the 

Commission closed the file on the matter.” (emphasis added) (citations omitted)). 

After closing the file, the General Counsel would then notify the parties of the 

Commission’s terminating action on the merits of the complaint and release the 

voting records and any statements of reasons, as required by FECA and the FEC’s 

regulations. 

30. Because an enforcement matter cannot proceed to an investigation 

without the support of four Commissioners, if fewer than four Commissioners decide 

to vote to find reason to believe a violation of law occurred based on the administrative 

complaint, it terminates the matter. Administratively closing the file after the 

Commission has failed to initiate enforcement based on the complaint is a purely 

ministerial and legally insignificant act, and there is no requirement in FECA or FEC 

regulations requiring this step. 

31. The Commission—at the behest of Commissioners Walther, Broussard, 

and Weintraub—recently departed from this longstanding policy and practice of 

closing the file after the Commission has failed to initiate an enforcement action 

based on the complaint. 

32. Commissioners Walther, Broussard, and Weintraub have refused to 

vote to administratively close the files in eight enforcement matters before the 

Commission, even though the Commission took final votes on the merits of these 

complaints more than a year ago. In each of these matters, votes on the merits have 

been taken as to all parties and statements of reasons have been included in the 

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administrative file by the commissioners declining to move forward on the complaint. 

Acting with a lawful quorum, the Commission has considered each of those matters 

and has taken votes fully resolving their substance. 

33. One of these Commissioners has defended the FEC's failure to release 

the records of the Commission’s action on the administrative complaints by arguing 

that enforcement matters in which the Commission lacks the requisite four votes to 

find reason to believe remain perpetually open for future reconsideration. 

34. Commissioners Walther, Broussard, and Weintraub have forced the 

Commission to follow a new policy and practice of refusing to administratively close 

an enforcement matter file after the Commissioners failed to find reason to believe a 

violation occurred and initiate an enforcement action based on the complaint and 

thus to conceal the Commission’s voting records and statements of reasons. 

35. On May 13, 2022, FEC Chairman Allen J. Dickerson and Commissioners 

Sean J. Cooksey and James E. “Trey” Trainor III issued a statement criticizing the 

Commission’s new concealment policy adopted at the behest of Commissioners 

Walther, Broussard, and Weintraub. See Statement of Chairman Allen J. Dickerson 

and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III Regarding 

Concluded Enforcement Matters (May 13, 2022). 

36. Because the Commission does not notify the complainant or respondent 

of the results of any votes taken in an enforcement matter or publish the relevant 

materials until the matter file has been closed, Commissioners Walther, Broussard, 

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and Weintraub have created the false impression that the FEC has taken no action 

on the administrative complaints. 

37. There is no legal support for the argument that a majority of the 

Commission must vote to close a file in order to conclude an enforcement matter. To 

the contrary, FECA precludes proceeding with enforcement without four affirmative 

votes finding reason to believe it should do so. Where fewer than four Commissioners 

vote to find reason to believe and initiate an enforcement action, the Commission’s 

work is done and a vote to close the file, while welcome and administratively 

convenient, is legally immaterial. 

38. The D.C. Circuit has long recognized that when the Commission splits 

and fails to garner four votes to find reason to believe and initiate an enforcement 

action it results in a “deadlock dismissal.” In such cases, the D.C. Circuit has held 

that the Commissioners who declined to proceed with enforcement “constitute a 

controlling group for purposes of the decision,” and “their rationale necessarily states 

the agency’s reasons for acting as it did.” FEC v. NRSC, 966 F.2d 1471, 1476 (D.C. 

Cir. 1992). Thus, it is wrong to conflate the decision not to proceed with enforcement 

and the attendant issuance of a statement of reasons with the nominal act of file 

closure. Instead, a dismissal, as a substantive enforcement decision, exists in an 

entirely different category from customary, non-statutory administrative acts such 

as closing the file. 

39. The theoretical possibility that Commissioners might change their votes 

at some hypothetical future date, after having already adjudicated the merits of a 

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complaint, does not alter this reasoning. That is because the Commission has already 

passed judgment on the entirety of the merits in such matters and has explained its 

reasoning. 

40. Commissioners Walther, Broussard, and Weintraub have not attempted 

to resolve these eight matters on the merits in the meantime and have essentially 

ignored them. The matters were generally left off of the Commission’s executive 

session agenda under the leadership of a Democratic Chair. After a Republican 

became Chairman in 2022, each matter has been placed on every subsequent 

agenda—only to be held over at the request of Commissioner Walther, Broussard, or 

Weintraub. 

41. Commissioners Walther, Broussard, and Weintraub are weaponizing a 

nominal housekeeping act, not to allow for future action by the FEC, but to create the 

public impression that the Commission has not started its work on an administrative 

complaint, even though the Commission has actually finished it. 

42. The Commission’s new concealment policy thwarts the ability of courts 

to review the legality of the controlling Commissioners’ decision not to proceed on a 

complaint and thus frustrates Congress’s explicit statutory grant of federal court 

jurisdiction to review certain FEC actions. By preventing the release of information 

about Commission votes, the FEC is wrongfully subjected to suit for “fail[ing]... to 

act” on the complaint. 52 U.S.C. § 30109(a)(8)(A). But one cannot seriously argue 

that an affirmative effort to hold a file open despite the exhaustion of the 

Commission’s statutory role is in fact a failure to act as that phrase is used in FECA. 

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43. The Commission’s new concealment policy also undermines 

fundamental fairness (not to mention foundational notions of due process) to hold a 

matter open in the hope that a future slate of commissioners will re-vote and reach a 

different result. It prejudices respondents, who are entitled to learn when the 

Commission has voted not to pursue enforcement in connection with a complaint 

about their (often constitutionally protected) activity. And it is unfair to 

complainants, who are entitled to learn the outcome of their complaint so that they 

may timely plan and pursue any legal action in response to the FEC’s action on the 

complaint. 

III. The Administrative Complaint Against Heritage Action 

44. On October 16, 2018, CLC and an individual, Margaret Christ, filed an 

administrative complaint with the FEC against Heritage Action. The complaint 

alleged that Heritage Action failed to disclose the identities of contributors for certain 

independent expenditures pursuant to 52 U.S.C. §§ 30104(c)(1) and 30104(c)(2)(C). 

The FEC identified CLC’s administrative complaint as MUR 7516. 

45. On April 6, 2021, the Commission took action on CLC’s complaint 

against Heritage Action in MUR 7516 while Commissioner Broussard was serving as 

FEC Chairman. 

46. The Commissioners voted on whether to find reason to believe and thus 

proceed to an investigation of CLC’s complaint against Heritage Action in MUR 7516. 

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47. Fewer than four Commissioners voted to find reason to believe and 

initiate an enforcement action and proceed to an investigation of the allegations in 

the complaint in MUR 7516. 

48. The Commission thus lacked the requisite four votes to proceed to an 

investigation of the allegations in CLC’s complaint against Heritage Action in MUR 

7516. 

49. The Commission terminated the proceedings involving CLC’s complaint 

against Heritage Action in MUR 7516. 

50. The Commissioners who voted against finding reason to believe and 

against proceeding to an investigation of CLC’s complaint against Heritage Action in 

MUR 7516 wrote a statement of reasons explaining their votes and included the 

statement of reasons in the matter file. 

51. Upon information and belief, the Commissioners who voted against 

finding reason to believe and against proceeding to an investigation of CLC’s 

complaint against Heritage Action in MUR 7516 stated that they did so for reasons 

of prosecutorial discretion under Heckler v. Chaney, 470 U.S. 821 (1985). 

52. The Commission voted on whether to administratively close the file 

involving CLC’s complaint against Heritage Action in MUR 7516. 

53. Fewer than four Commissioners voted to administratively close the file 

involving CLC’s complaint against Heritage Action in MUR 7516. 

54. Upon information and belief, the Commissioners who voted against 

finding reason to believe and against proceeding to an investigation of CLC’s 

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complaint against Heritage Action in MUR 7516 voted to administratively close the 

file in MUR 7516. 

55. Upon information and belief, Commissioners Walther, Broussard, and 

Weintraub voted against administratively closing the file in MUR 7516. 

56. On January 11, 2022, the Commission voted again on whether to 

administratively close the file involving CLC’s complaint against Heritage Action in 

MUR 7516 while Commissioner Dickerson was serving as FEC Chairman. 

57. Again, fewer than four Commissioners voted to administratively close 

the file involving CLC’s complaint against Heritage Action in MUR 7516. 

58. Upon information and belief, the Commissioners who voted against 

finding reason to believe and against proceeding to an investigation of CLC’s 

complaint against Heritage Action in MUR 7516 again voted to administratively close 

the file in MUR 7516. 

59. Upon information and belief, Commissioners Walther, Broussard, and 

Weintraub voted against administratively closing the file in MUR 7516. 

60. Accordingly, the Commission has terminated CLC’s complaint against 

Heritage Action in MUR 7516, but Defendants have not publicly announced the 

FEC’s decision, notified Heritage Action of its action, or released the voting records 

or any statement of reasons. 

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IV. Subsequent Judicial Proceedings 

61. On February 16, 2021, CLC filed a civil lawsuit against the FEC in the 

U.S. District Court for the District of Columbia pursuant to 52 U.S.C. 

§ 30109(a)(8)(A). See CLC v. FEC, No. 1:21-cv-0406-TJK (D.D.C.). 

62. CLC alleged that the Commission had failed to act on CLC’s 

administrative complaint in MUR 7516 and that the FEC’s inaction was contrary to 

law under § 30109(a)(8). 

63. The FEC did not enter an appearance or otherwise defend the action. 

64. Upon information and belief, Commissioners Walther, Broussard, and 

Weintraub voted against authorizing the Commission’s attorneys to appear and 

defend the action. 

65. CLC filed an affidavit for default on May 5, 2021, and the clerk of court 

entered default against the FEC on May 10, 2021. 

66. CLC filed a motion for default judgment on May 24, 2021. 

67. On March 25, 2022, District Judge Kelly issued an order granting CLC’s 

motion. The court found that “the FEC has taken no action on CLC’s complaint” and 

held that the “FEC’s failure to act on CLC’s administrative complaint is contrary to 

law.” The court ordered the FEC to “conform to this Court’s Order within 30 days by 

acting on CLC’s administrative complaint, MUR 7516.” 

68. On April 26, 2022, CLC filed a motion for an order declaring that the 

FEC has failed to conform to the default judgment order. 

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69. On May 3, 2022, Judge Kelly granted CLC’s motion. The court declared 

that the FEC “has failed to conform to this Court’s order entered on March 25, 2022,” 

and that CLC may “bring a civil action to remedy the violations involved in the 

original complaint” against Heritage Action pursuant to 52 U.S.C. § 30109(a)(8)(C). 

70. On May 5, 2022, CLC filed a lawsuit for injunctive and declaratory relief 

against Heritage Action in Case No. 1:22-cv-01248-CJN (D.D.C.). 

71. On May 20, 2022, Heritage Action filed a notice of appeal of Judge 

Kelly’s judgment after moving to intervene for the purpose of appeal or 

reconsideration. 

STANDING 

72. Heritage Action has standing to challenge Defendants’ concealment 

policy, including their failures to send the requisite notifications of the Commission’s 

terminating action in MUR 7516 to Heritage Action and release the voting records 

and any statement of reasons. 

73. Defendants’ concealment policy has injured Heritage Action because 

that policy wrongfully exposed Heritage Action to a direct civil lawsuit pursuant to 

52 U.S.C. § 30109(a)(8)(C). Had Defendants sent the required notifications and 

publicly released the voting records and any statement of reasons in MUR 7516, the 

public record at the time of Judge Kelly’s March 25, 2022 order would have shown 

that the Commission did not “fail ... to act” on CLC’s administrative complaint 

against Heritage Action in MUR 7516. Id. Moreover, the public record would have 

disproven any allegation that the Commission had not “conform[ed]” to Judge Kelly’s 

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March 25, 2022 order—a necessary precondition for CLC to file a direct civil suit 

against Heritage Action. Id. 

74. Heritage Action is also suffering informational injury as a result of 

Defendants’ concealment policy. Heritage Action is deprived of information that it is 

entitled to receive under the APA, FECA, FEC regulations, and D.C. Circuit 

precedent. The denial of this information causes Heritage Action to suffer the type 

of harm the disclosure provisions are meant to prevent, because Heritage Action is 

denied information regarding its continued exposure to enforcement actions and civil 

liability and information highly relevant to defending ongoing legal action. 

75. Heritage Action’s injuries are redressable by the Court because a 

favorable ruling vacating the concealment policy and ordering the Commission to 

notify Heritage Action of the Commission’s terminating action in MUR 7516 and 

release its voting records and any statement of reasons would provide Heritage Action 

with the information that it seeks. Information demonstrating that the Commission 

acted on CLC’s administrative complaint against Heritage Action on April 6, 2021, 

will allow Heritage Action to obtain dismissal of CLC’s direct civil suit because the 

voting records and statement of reasons will show that the Commission did not 

“fail[] ... to act” on CLC’s complaint and that there was no lack of “conform[ity]” with 

Judge Kelly’s March 25, 2022 order. Id. 

FINAL AGENCY ACTION 

76. The FEC is an “agency” under the APA. 5 U.S.C. § 551(1). 

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77. Defendants’ concealment policy is a final, reviewable “agency action for 

which there is no other adequate remedy in a court.” Id. §§ 551(13), 704. This policy 

represents the consummation of the Defendants’ decision-making process to conceal 

the FEC’s voting records and statements of reasons when four Commissioners do not 

vote in favor of initiating an enforcement action by refusing to administratively close 

the file. 

78. Defendants’ concealment policy affects Heritage Action’s legal rights 

and obligations because the Defendants applied the concealment policy in MUR 7516, 

which has resulted in Heritage Action’s wrongful exposure to a direct civil lawsuit 

pursuant to 52 U.S.C. § 30109(a)(8)(C) and Heritage Action being denied access to 

the voting records and any statement of reasons in MUR 7516 that it is entitled to 

receive under the APA, FECA, FEC regulations, and D.C. Circuit precedent. 

CLAIMS FOR RELIEF 

Count I—Violation of Administrative Procedure Act 

Agency Action Contrary To Law 

79. Heritage Action incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

80. A court must “hold unlawful and set aside agency action ... found to 

be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A). 

81. Defendants’ concealment policy is contrary to law. 

82. The APA requires that “[p]rompt notice shall be given of the denial ... of 

a written application, petition, or other request of an interested person made in 

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connection with any agency proceeding,” and “the notice shall be accompanied by a 

brief statement of the grounds for denial.” 5 U.S.C. § 555(e). 

83. In addition, FECA and FEC regulations require Defendants to notify a 

respondent in an enforcement matter that proceedings have terminated and then to 

publicly release the Commission’s voting records. 52 U.S.C. § 30109(a)(4)(B)(ii); 11 

C.F.R. §§ 111.9(b), 111.20(a). 

84. Further, D.C. Circuit precedent requires Defendants to issue a 

statement of reasons when the Commission splits on its reason-to-believe vote and 

fails to garner four votes to initiate an enforcement action based on the complaint so 

that any reviewing court may determine the basis for the Commission’s action. 

DCCC, 831 F.2d at 1135. 

85. Defendants have adopted and adhered to a new concealment policy 

whereby the Commission does not administratively close enforcement matters in 

which fewer than four Commissioners voted against finding reason to believe a 

violation occurred for the purpose of concealing the Commission’s terminating action, 

its voting records, and statements of reasons. 

86. Defendants adhered to this new concealment policy in its action on 

CLC’s administrative complaint against Heritage Action in MUR 7516. 

87. This concealment policy is “not in accordance with” the APA, FECA, 

FEC regulations, and D.C. Circuit precedent. 5 U.S.C. § 706(2)(A). 

88. This Court should hold unlawful and set aside Defendants’ concealment 

policy and issue an order compelling Defendants to comply with the APA, FECA, FEC 

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regulations, and D.C. Circuit precedent by notifying Heritage Action of the 

Commission’s terminating action in MUR 7516 and releasing the Commission’s 

voting records and any statement of reasons. 

Count II—Violation of Administrative Procedure Act 

Arbitrary and Capricious Agency Action 

89. Heritage Action incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

90. A court must “hold unlawful and set aside agency action ... found to 

be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A). 

91. An agency acts arbitrarily and capriciously in violation of the APA when 

it fails to comply with its own regulations. 

92. The FEC’s own regulations require Defendants to notify a respondent in 

an enforcement matter when proceedings have terminated and then to publicly 

release the Commission’s voting records. 11 C.F.R. §§ 111.9(b), 111.20(a). 

93. Defendants acted arbitrarily and capriciously by failing to comply with 

the FEC’s regulations because they have not notified Heritage Action of the 

Commission’s terminating action on CLC’s administrative complaint in MUR 7516, 

nor has the Commission publicly released its voting records, even though MUR 7516 

has been terminated. 

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94. This Court should issue an order compelling the Defendants to comply 

with the FEC’s own regulations by notifying Heritage Action of the Commission’s 

terminating action in MUR 7516 and releasing the Commission’s voting records. 

Count III—Violation of Administrative Procedure Act 

Arbitrary and Capricious Agency Action 

95. Heritage Action incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

96. A court must “hold unlawful and set aside agency action ... found to 

be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A). 

97. Defendants had a longstanding policy and practice of administratively 

closing the file in an enforcement matter upon a split vote failing to find reason to 

believe a violation occurred and initiate an enforcement action based on the 

complaint, causing the General Counsel to notify the parties of the Commission’s 

terminating action and publicly release the voting records and any statement of 

reasons. 

98. Defendants acted arbitrarily and capriciously in MUR 7516 because 

Defendants have, without acknowledgment or explanation, departed from its 

longstanding policy and practice by adopting a new concealment policy of refusing to 

administratively close the file in an enforcement matter upon split votes failing to 

find reason to believe a violation occurred and initiate an enforcement action based 

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on the complaint for the purpose of concealing the Commission’s terminating action, 

its voting records, and any statement of reasons. 

99. Defendants acted arbitrarily and capriciously by treating MUR 7516 

differently than similarly situated enforcement matters in which Defendants 

administratively closed the file upon split votes failing to find reason to believe a 

violation occurred and initiate an enforcement action based on the complaint, because 

Defendants adhered to its new concealment policy in MUR 7516, but Defendants did 

not adhere to that policy in similarly situated enforcement matters. 

100. This Court should hold unlawful and set aside Defendants’ concealment 

policy and issue an order compelling Defendants to comply with its longstanding 

policy and precedent. 

Count IV—Violation of Administrative Procedure Act 

Agency Action Unlawfully Withheld or Unreasonably Delayed 

101. Heritage Action incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

102. A court “shall ... compel agency action unlawfully withheld or 

unreasonably delayed.” 5 U.S.C. § 706(1). 

103. Defendants have “unlawfully withheld or unreasonably delayed” notice 

of the Commission’s terminating action in MUR 7516 and release of its voting records 

and any statement of reasons. Id. 

104. Under the APA, the FEC has a ministerial and non-discretionary duty 

to “to conclude a matter presented to it.” Id. § 555(b). In addition, the FEC has a 

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ministerial and non-discretionary duty to give “[p]rompt notice ... of the denial ... of 

a written application, petition, or other request of an interested person made in 

connection with any agency proceeding,” and “the notice shall be accompanied by a 

brief statement of the grounds for denial.” Id. § 555(e). 

105. Under FECA and the FEC’s regulations, the FEC has a ministerial and 

non-discretionary duty to notify the respondent and publicly release the voting 

records within 30 days of such notice when the FEC terminates an enforcement 

proceeding. 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. §§ 111.9(b), 111.20(a). 

106. Under D.C. Circuit precedent, when fewer than four Commissioners 

vote to find reason to believe and initiate an enforcement action based on the 

complaint, the FEC has a ministerial and non-discretionary duty to release the 

statements of reasons of the Commissioners voting against enforcement so that any 

reviewing court may determine the basis for the Commission’s action. DCCC, 831 

F.2d at 1135. 

107. Although the FEC terminated the agency proceeding in MUR 7516 over 

a year ago, Defendants have not taken these ministerial steps that they are required 

to take because they have not notified Heritage Action of the Commission’s 

terminating action or released its voting records and any statement of reasons. 

108. Defendants’ failure to comply with its obligations constitutes agency 

action “unlawfully withheld” and “unreasonably delayed.” 

109. This Court should issue an order compelling Defendants to comply with 

the APA, FECA, FEC regulations, and D.C. Circuit precedent by notifying Heritage 

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Action of the Commission’s terminating action in MUR 7516 and releasing its voting 

records and any statement of reasons. 

Count V—Mandamus 

The Defendants Are Subject to Mandamus 

110. Heritage Action incorporates by reference the allegations contained in 

the previous paragraphs as though set forth fully herein. 

111. The Court has authority over “any action in the nature of mandamus to 

compel an officer or employee of the United States or any agency thereof to perform 

a duty owed to the plaintiff.” 28 U.S.C. § 1361. 

112. Defendants are clearly obligated to comply with federal law, including 

the APA, FECA, FEC regulations, and D.C. Circuit precedent. 

113. As set forth above, Defendants are clearly not in compliance with the 

law because, although the Commission terminated proceedings against Heritage 

Action more than one year ago, Defendants have not notified Heritage Action of the 

Commission’s terminating action or publicly released the matter records. 

114. Mandamus is appropriate to the extent that Heritage Action has no 

adequate alternative remedy against Defendants. 

115. This Court should issue an order compelling Defendants to comply with 

the law by notifying Heritage Action of the Commission’s terminating action in MUR 

7516 and releasing its voting records and any statement of reasons. 

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PRAYER FOR RELIEF 

Wherefore, Plaintiff prays for the following relief: 

a. A declaration, order, and judgment holding that Defendants violated the 

APA, FECA, FEC regulations, and D.C. Circuit precedent by failing to notify Heritage 

Action of the Commission’s terminating action in MUR 7516 and by failing to publicly 

release the Commission’s voting records and any statement of reasons; 

b. An order setting aside Defendants’ new concealment policy of refusing 

to administratively close an enforcement matter file after the Commission fails to 

garner four votes to initiate an enforcement action based on the complaint for the 

purpose of concealing the Commission’s voting records and statements of reasons; 

c. An order compelling Defendants to issue the required notification to 

Heritage Action of the Commission’s terminating action in MUR 7516 and publicly 

release the voting records and any statement of reasons; 

d. An injunction requiring Defendants to issue the required notifications 

to complainants and respondents and to publicly release Commission’s voting records 

and statements of reasons in any enforcement matter after the Commission fails to 

garner four votes to initiate an enforcement action based on the complaint; 

e. An award of all costs and attorneys’ fees pursuant to any applicable 

statute or authority; and 

f. Any other relief this Court deems just and proper. 

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Dated: May 20, 2022 Respectfully submitted, 

s/ Brett A. Shumate 

Brett A. Shumate 

(D.C. Bar No. 974673) 

E. Stewart Crosland 

(D.C. Bar No. 1005353) 

Brinton Lucas 

(D.C. Bar No. 1015185) 

Stephen J. Kenny 

(D.C. Bar No. 1027711) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

Counsel for Plaintiff 

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