Case 1:22-cv-03281-CRC Document 12-1 Filed 01/06/23 Page 1 of 14 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

) 

Plaintiff, ) Civ. No. 22-3281 (CRC) 

) 

v. ) 

) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

The administrative actions under review here have a long and involved history, well 

known to this Court. This case represents the third time plaintiff Citizens for Responsibility and 

Ethics in Washington (“CREW”) has challenged the Federal Election Commission’s 

(“Commission” or “FEC”) actions on an underlying administrative complaint alleging that 

American Action Network (“AAN”), an organization operating as a tax-exempt non-profit under 

section 501(c)(4) of the Internal Revenue Code, violated the Federal Election Campaign Act 

(“FECA” or “Act”) by failing to register with the Commission as a “political committee” and 

comply with the reporting requirements applicable to such groups. Plaintiff’s single-count 

complaint again seeks judicial review pursuant to FECA’s special judicial review provision, 52 

U.S.C. § 30109(a)(8). After a recent round of consideration at the administrative level that was 

spurred by an interest in resolving stale matters, three Commissioners have indicated that the 

matter is not worthy of revisiting substantive votes that took place more than four years ago even 

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if the merits of CREW’s campaign finance allegations were again before the Commission, so a 

remand serves no possible purpose. As detailed below, plaintiff’s complaint should be 

dismissed, because relief available under 52 U.S.C. § 30109(a)(8)(C), a remand to the agency, 

here would not serve a discernible interest and the futility doctrine supports avoiding a third 

round of administrative proceedings. 

BACKGROUND 

I. THE FEC AND FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS 

The FEC is a six-member, independent agency of the United States government with 

“exclusive jurisdiction” to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106, 30107. Congress authorized the Commission to “formulate policy” with 

respect to FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary 

to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate 

possible violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction 

to initiate civil enforcement actions for violations of the Act in the United States district courts. 

Id. §§ 30106(b)(1), 30109(a)(6). 

FECA provides that decisions of the Commission “with respect to the exercise of its 

duties and power under the provisions of th[e] Act shall be made by a majority vote of the 

members of the Commission,” and that certain specified actions require “the affirmative vote of 

4 members of the Commission.” 52 U.S.C. § 30106(c). As explained in greater detail below, the 

decision to open an investigation or take other statutory steps in the process of enforcing against 

an alleged violation of FECA thus requires the assent of at least four Commissioners. 52 U.S.C. 

§§ 30106(c), 30107(a)(6), (9). 

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

alleging a violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing 

the complaint and any response filed by the respondent, the Commission considers whether there 

is “reason to believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). If at least four of 

the FEC’s six Commissioners vote to find such reason to believe, the Commission may 

investigate the alleged violation. Id. §§ 30106(c), 30109(a)(2). 

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

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

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

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

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

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

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

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

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

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

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

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

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

FEC administrative enforcement matters, including remanded matters, are required by 

FECA to be kept confidential until the administrative process is complete. 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 

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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 

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 

The saga that preceded CREW’s complaint seeking judicial review of the Commission’s 

handling of its complaint against AAN spans more than a decade and no fewer than six published 

opinions of this Court. See CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77 (D.D.C. 2016) (first 

remand to FEC); CREW v. FEC (“CREW II”), 299 F. Supp. 3d 83 (D.D.C. 2018) (second remand 

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to FEC); CREW v. AAN, 410 F. Supp. 3d 1 (D.D.C. 2019) (granting in part and denying in part 

AAN’s motion to dismiss private right of action); CREW v. AAN, 415 F. Supp. 3d 143 (D.D.C. 

2019) (denying AAN’s motion for certification of questions for interlocutory appeal); CREW v. 

AAN, 590 F. Supp. 3d 164 (D.D.C.) (granting AAN’s motion for reconsideration and dismissing 

private right of action), appeal filed, 22-7038 (D.C. Cir. 2022).1 

A. CREW’s Original Administrative Complaint against AAN 

More than ten years ago, in June of 2012, plaintiff filed an administrative complaint with 

the Commission alleging that AAN violated FECA’s requirement that groups meeting the 

definition of a “political committee” register as such and file periodic reports about their receipts 

and disbursements. Compl. ¶ 40; see 52 U.S.C. §§ 30103(a), 30104(a)-(b). Under FECA, any 

“committee, club, association, or other group of persons” that receives more than $1,000 in 

“contributions” or makes more than $1,000 in “expenditures” in a calendar year is a “political 

committee.” 52 U.S.C. § 30101(4)(A); 11 C.F.R. § 100.5(a). The Act defines “contribution” 

and “expenditure” to include any payment of money to or by any person “for the purpose of 

influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i). In Buckley v. 

Valeo, however, the Supreme Court limited that statutory definition to “only encompass 

organizations that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” 424 U.S. 1, 79 (1976) (per curiam). Buckley thus 

established that an entity that is not controlled by a candidate must register as a political 

committee only if the group crosses the $1,000 threshold of contributions or expenditures and 

has as its “major purpose” nominating or electing federal candidates. CREW’s 2012 

This Court also granted the Commission’s motion to dismiss CREW’s Administrative 

Procedure Act claim in CREW I. CREW v. FEC, 164 F. Supp. 3d 113 (D.D.C. 2015). 

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administrative complaint alleged that AAN met the major-purpose test in 2009 and 2011. 

(Compl. ¶ 40.) 

The FEC’s Office of the General Counsel issued a First General Counsel’s report in 

2013, recommending that the Commission find reason to believe AAN had violated FECA’s 

registration and reporting requirements for political committees. (Compl ¶ 42.) The 

Commission divided evenly on that question by a 3-3 vote on June 17, 2012, and then voted 

unanimously to close its file. (Id.) The three Commissioners who voted against finding reason 

to believe issued a statement of reasons explaining their votes. Under D.C. Circuit precedent, 

those Commissioners “constitute a controlling group for purposes of the decision” and “their 

rationale necessarily states the agency’s reasons for acting as it did” for purposes of judicial 

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

CREW I controlling Commissioners concluded that AAN did not meet Buckley’s major-purpose 

requirement and additionally cited “prosecutorial discretion” as a basis for declining 

enforcement. (See Compl. ¶ 44.) 

B. Judicial Proceedings in CREW I, No. 14-1419 (D.D.C.), and Proceedings on 

Remand 

CREW sought judicial review of the dismissal, challenging the CREW I controlling 

group’s analysis as contrary to law. Compl. ¶ 45; see CREW I, 209 F. Supp. 3d at 83-84. This 

Court discerned legal errors in the controlling statement of reasons and remanded the matter to 

the FEC with instructions to conform with the Court’s opinion. CREW I, 209 F. Supp. 3d at 93-

95. 

On remand, the Commission again divided evenly on the question whether to find reason 

to believe that AAN had violated FECA’s registration and reporting requirements for political 

committees, with three Commissioners voting in favor of reason to believe and three voting 

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against. (Compl. ¶ 47.) The Commission then voted 5-1 to close the file. (Id.) The three 

Commissioners that voted against making the reason-to-believe finding issued a statement 

explaining their votes, and this Court concluded that the statement conformed with the remand 

order. See also Mem. Op. & Order at 2, CREW v. FEC, No. 14-1419 (CRC) (D.D.C. Apr. 6, 

2017) (Docket No. 74) (denying motion for order to show cause as to why Commission had not 

complied with remand order); Compl. ¶ 47. 

C. Judicial Proceedings in CREW II, No. 16-2255 (D.D.C.), and Proceedings on 

the Second Remand 

CREW filed a second action for judicial review under 52 U.S.C. § 30109(a)(8) on 

November 14, 2016, challenging the CREW II controlling commissioners’ post-remand 

statement of reasons. Compl. ¶ 49; see CREW II, 299 F. Supp. 3d at 90-92. This Court again 

concluded that the controlling statement of reasons contained legal errors and remanded the 

matter to the Commission a second time. CREW II, 299 F. Supp. 3d at 101. 

That time, however, the Commission took no public action within thirty days of the 

Court’s remand order and the agency’s file on AAN remained open. (See Compl. ¶ 52.) As a 

result, on April 23, 2018, CREW availed itself of the private right of action against AAN to 

remedy the FECA violations it had alleged to the Commission pursuant to 52 U.S.C. 

§ 30109(a)(8)(C). (See Compl. ¶ 52.) 

D. CREW’s Private Suit Against AAN and Subsequent 

Commission Action 

AAN moved to dismiss CREW’s private suit, arguing among other things that CREW 

lacked standing under Article III and that the predicate for the lawsuit was erroneous because the 

initial controlling group’s legal reasoning was immune from judicial review because it relied in 

part on prosecutorial discretion. This Court initially rejected those arguments. See CREW v. 

AAN, 410 F. Supp. 3d at 15-20. After that decision, however, the D.C. Circuit provided 

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clarification that a controlling statement of reasons that relies in part on prosecutorial discretion 

is not judicially reviewable, even if the controlling group also relies on interpretations of FECA 

that would be otherwise judicially reviewable. See CREW v. FEC, 993 F.3d 880 (D.C. Cir. 

2021) (“New Models”), pet. for reh’g en banc denied, 2022 WL 17578942 (D.C. Cir. Dec. 12, 

2022) (per curiam). Following that decision, this Court granted AAN’s motion for 

reconsideration and dismissed CREW’s private suit, concluding that the reference in the original 

controlling statement to prosecutorial discretion made that dismissal judicially unreviewable and 

therefore deprived CREW of the predicate contrary-to-law finding on which the right of action 

was based. CREW v. AAN, 590 F. Supp. 3d 164 (D.D.C. 2022). CREW’s appeal of that decision 

is pending at the D.C. Circuit. See CREW v. AAN, No. 22-7038 (D.C. Cir.).2 

On August 29, 2022, the Commission voted to close its file on the AAN matter that had 

followed CREW II and the second remand. (Compl. ¶ 53.) That action resulted in the first 

public disclosure, pursuant to FEC policy, of the Commission’s handling of the AAN matter 

after this Court’s second remand order. (See id. ¶¶ 53-54.) That record revealed that on May 10, 

2018, shortly after CREW filed its private suit against AAN, the Commission held a series of 

votes on the underlying administrative complaint. (See Compl. ¶¶ 52, 54; id. Exh. 4.) Several 

votes to find reason to believe that AAN had violated FECA’s political committee provisions 

failed by a vote of 3-0, with Commissioner Weintraub abstaining from the vote. (See Compl. ¶ 

54; Id. Exh. 4.)3

 A subsequent vote to close the file also failed by a vote of 3-1. 

2 American Action Network has conferred with counsel for the Commission about its 

planned motion for intervention and will be bringing to the Court’s attention the application of 

the holding in CREW v. AAN to this case. 

3 At the time of the May 2018 votes, the Commission had only four sitting members. 

(See Compl. ¶ 54.) 

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As the Commissioner that through her abstention deprived the agency of the fourth vote 

required to find reason to believe, Commissioner Weintraub issued a statement of reasons on 

September 30, 2022, which provides a controlling rationale for the agency’s actions. See Compl. 

¶¶ 55-60; id. Exh. 5; see also New Models, 993 F.3d at 883 n.3.4

 While the effect of 

Commissioner Weintraub’s vote was to prevent the Commission from proceeding with further 

enforcement, her statement incorporated prior statements that analyzed CREW’s administrative 

complaint, supported enforcement, and noted record evidence that AAN had used “at least 

62.5%” of its total spending to support “federal campaign activity” in 2010 (Compl. Exh. 6 at 5). 

The statement also referenced this Court’s decision in CREW I that called for reassessment of 

AAN’s electioneering communications because “‘many or even most’” of those communications 

“‘indicate a campaign-related purpose,’” (id. Exh. 7 at 3-4 (quoting CREW I, 209 F. Supp. 3d at 

93)). The controlling statement concluded that based on “the facts before the Commission [and] 

the law governing this activity . . . the Commission’s dismissal of this matter was contrary to 

law.” (See Compl. ¶¶ 55-60; id. Exh. 5; see also id. Exh. 2 (Statement of Vice Chair Ellen L. 

Weintraub Regarding CREW v. FEC & American Action Network (Apr. 19, 2018); id. Exh. 6 

(Statement of Reasons of Vice Chair Ann M. Ravel, Commissioner Steven T. Walther, and 

Commissioner Ellen L. Weintraub, MURs 6538 & 6589 (July 30, 2014); id. Exh. 7 (Statement of 

Reasons of Commissioners Ann M. Ravel and Ellen L. Weintraub, MUR 6589R (Dec. 5, 2016).) 

The closure of the Commission’s file on the AAN matter also revealed that the 

Commission had taken a vote on closing the file on January 11, 2022, after additional departures 

The Commission is unaware of any previous case in which a single abstaining 

Commissioner caused the FEC to lack the required four votes to find reason to believe and 

pursue further enforcement proceedings. As that abstention caused the Commission to “fail[] to 

muster four votes in favor of initiating an enforcement proceeding,” CREW v. FEC, 892 F.3d 

434, 437 (D.C. Cir. 2018), the explanation for that abstention has controlling weight. 

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and appointments increased the Commission membership to a full slate of six. See Certification, 

MUR 6589R (American Action Network) (Jan. 11, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_26.pdf. That vote was evenly divided, 3-3. 

Id. Commissioners Dickerson, Cooksey, and Trainor placed into the file a statement explaining 

that the matter had been placed on the agenda “with an eye toward resolving stale matters and 

ensuring responsible use of agency resources” and that they voted in favor of closing the file in 

the matter but took “no position on the merits of” the prior Commission votes that had failed to 

find reason to believe against AAN. See Statement of Reasons of Chairman Allen J. Dickerson 

and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, MUR 6589R (American 

Action Network) (May 13, 2022) (“Dickerson, et al. Statement”) at 3, 6, 

https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf.5 

CREW filed this lawsuit seeking judicial review of the Commission’s latest dismissal 

after the second remand. 

ARGUMENT 

I. STANDARD OF REVIEW 

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

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

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

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

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

Commissioner Dickerson also separately issued a statement responding to some of the 

points made in Commissioner Weintraub’s September 2022 statement of reasons. Supplemental 

Statement of Reasons of Chairman Allen J. Dickerson, MUR 6589R (American Action Network) 

(Oct. 12, 2022), https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. THIS COURT SHOULD NOT ORDER A FUTILE REMAND 

In this case the Court should dismiss this action because three Commissioners have 

indicated the matter is stale and agency resources should be conserved rather than dedicated to 

considering afresh whether to pursue the administrative matter after a vote to do so failed more 

than four years ago. A remand would serve no purpose other than necessitating yet another 

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round of administrative proceedings, but the outcome of agency consideration of enforcement is 

preordained. 

This was an anomalous administrative matter for many reasons, including that over three 

and a half years passed between the last substantive vote on whether the matter should be 

pursued and the Commission’s vote to close the file. In the interim, five new Commissioners 

have been seated. After the matter had been identified as stale and called up for resolution, three 

of those new Commissioners, who did not participate in that last substantive vote, filed the 

statement explaining their reasoning for not considering moving forward in the recent period and 

being in favor of closing the matter. See Dickerson, et al. Statement. There are thus 

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

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

potential enforcement matter. 

Even assuming an agency has made an error, a remand is not required when the “remand 

would be futile.” Fogg v. Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001). Here, three 

Commissioners — a sufficient number to vote down any reason to believe vote on remand — 

have released a statement explaining that they “took no position on the merits of” the prior 

Commission votes that had failed to find reason to believe against AAN, but they opposed 

revisiting that decision and instead voted in favor of closing the file after the matter had been 

called up “with an eye toward resolving stale matters and ensuring responsible use of agency 

resources.” Dickerson, et al. Statement at 3; see also id. at 6 (explaining that the three 

commissioners have no intention of reevaluating the previous split vote on reason to believe in 

this matter that “predate[d] our service on the Commission”). 

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In light of those statements, any remand to the agency would only needlessly prolong this 

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

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

doubt that the” three current Commissioners issuing those statements “would simply reaffirm” 

their nonenforcement reasoning. NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982). 

Because the “outcome of a new administrative proceeding is preordained,” this Court “may 

forego the futile gesture of remand to the agency.” Keats v. Sebelius, No. 13-1524, 2019 WL 

1778047, at *7 (D.D.C. Apr. 23, 2019) (internal quotation marks omitted) (finding remand likely 

futile where intervening events made obvious how agency would handle a required review that 

may have been missed). 

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

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

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

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

administrative process from beginning. Id. at 709. The same is true here. The approach of three 

current Commissioners to the passage of more than four years since the last substantive vote, and 

more than a decade since the conduct giving rise to the complaint in this matter, means that the 

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

Accordingly, the district court should forego “the futile gesture of remand to the agency.” Keats, 

2019 WL 1778047 at *7 (citations omitted). 

CONCLUSION 

For all the foregoing reasons, the Court should dismiss plaintiff’s complaint because it 

fails to state a claim on which relief can be granted. 

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 Respectfully submitted, 

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

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

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

Assistant General Counsel 

jsiler@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

January 6, 2023 

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