IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON AND )

NOAH BOOKBINDER )

) Civil Action No. 19-2753

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

)

Defendant. )

)

SUR-REPLY REGARDING DEPARTMENT OF JUSTICE’S

STATEMENT OF INTEREST

In accordance with the Court’s Order, Doc. 14, Plaintiffs Citizens for Responsibility and 

Ethics in Washington (“CREW”) and Noah Bookbinder file this Sur-Reply. 

Plaintiffs brought the above captioned action, pursuant to 52 U.S.C. § 30109(a)(8)(C), 

seeking a judgment that the Federal Election Commission’s (“FEC”) failure to act on the 

Plaintiffs’ administrative complaint was contrary to law. Plaintiffs filed the underlying 

administrative complaint in 2018 and the FEC failed to act on that complaint for more than a 

year prior to this suit, only the final month of which the FEC lacked a quorum. While the FEC 

recently regained the quorum it lacked during the course of this litigation, the return to quorum 

does not affect the present case for both procedural and practical reasons: (1) it comes too late, 

after final judgment and opportunity to appeal; (2) it has no impact on the propriety of a failure 

to act suit under the FECA, and (3) it does nothing to remedy CREW’s ongoing injury incurred 

every moment it lacks information it is rightfully owed. 

First, the return to quorum occurred after the Court entered judgment in this matter and 

all opportunity for appeals expired. See Doc. 9 (entry of judgment on April 9, 2020); FEC Press 

Case 1:19-cv-02753-RCL Document 16 Filed 01/14/21 Page 1 of 5
2

Release, Shana Broussard, Sean Cooksey, Allen Dickerson sworn in as Commissioners (Dec. 18, 

2020), https://bit.ly/3nDIhwY (confirming FEC’s return to quorum). A new fact or a change in 

circumstance that occurs after judgment does not impact a plaintiff’s standing in a case that has 

already reached final judgment. In Citizens for Responsibility and Ethics in Washington v. 

Federal Election Commission, 904 F.3d 1014, 1018 (D.C. Cir. 2018), the D.C. Circuit rejected 

the argument that a FEC dismissal of a complaint on remand after a district court’s judgment 

impacted the plaintiffs’ standing to obtain that judgment. Rather, it stated that such an argument 

“is wrong chronologically since [the FEC action] post-dates the decision under review . . . .” Id. 

If post-judgment FEC action does not affect pre-judgment standing, then the resumption of a 

quorum alone, without action on the underlying administrative complaint, likewise cannot 

disturb the judgment or Plaintiffs standing to seek the already finalized judgment in this matter.

Second, the propriety of a failure to act suit under the FECA does not turn on the FEC’s 

quorum, nor does this Court’s jurisdiction to hear such a claim. As an initial matter, the statue 

that gives rise to this cause of action makes no distinction between suits that arise when the FEC 

has quorum versus those that arise when it lacks quorum. See 52 U.S.C. § 30109(a)(8)(A), (C) 

(“Any party aggrieved by . . . a failure of the 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.”). Courts have heard numerous cases 

involving the FEC’s failure to act, even when it had a quorum, and the FEC has not objected to 

the jurisdiction of the Court to hear such claims.1 See, e.g., Complaint, CREW and Noah 

 1 In recent years, the FEC operated without quorum from September 1, 2019 to December 18, 

2020, with a brief period of quorum in the summer of 2020. See FEC Press Release, FEC 

remains open for business, despite lack of quorum (Sept. 11, 2019), https://bit.ly/3i8unBT; FEC 

Press Release (Dec. 18, 2020), supra; Kate Ackley, FEC set to lose its quorum again, Roll Call, 

June 26, 2020, https://bit.ly/3qcmuy9.

Case 1:19-cv-02753-RCL Document 16 Filed 01/14/21 Page 2 of 5
3

Bookbinder v. FEC, Doc. 1, Case No. 1:18-cv-493 (D.D.C. Mar. 1, 2018) [Conservative 

Solutions]; Complaint, CREW and Noah Bookbinder v. FEC, Doc. 1, Case No. 1:18-cv-1060 

(D.D.C. May 4, 2018) [TH Holdings]; Complaint, CREW and Noah Bookbinder v. FEC, Doc. 1, 

Case No. 1:19-cv-1650 (D.D.C. June 5, 2019) [Freedom Vote].2 Congress permitted plaintiffs to 

sue for a failure to act under the FECA because the FEC’s unique bipartisan structure raised real 

risks of gridlock: risks that have proven true. Even prior to the loss of quorum, administrative 

complaints frequently languish for years on end. “Pervasive delays” undermine the FEC’s ability 

to enforce campaign finance laws. Doc. 1, ¶ 48 (citing In the Matter of American Conservative 

Union, et al., Statement of Reasons of Comm’r Ellen L. Weintraub, MUR 6920 (Dec. 19, 2017), 

http://bit.ly/2CDnumJ.); see generally id. ¶ 49-57 (detailing extensive and widespread delays at 

the FEC, including dozens of cases where activity at issue is beyond the statute of limitations and 

one case which, as of May 1, 2019, had an FEC Office of General Counsel’s report pending for 

over 1,665 days). Indeed, the very complaint that was at issue before this Court was first filed in 

2018, more than a year before the FEC lost quorum, yet the FEC still did not act on it and there 

is no indication the FEC’s restored quorum intends to act promptly now. 

For its part, DOJ does not contend that the restoration of quorum has any impact on this 

Court’s prior judgment. Rather. DOJ confines its Reply to arguing that Plaintiffs always lacked 

standing because their informational injury arose from the FEC’s failure to act rather than 

outright dismissal of their administrative complaint. 

 2 In Conservative Solutions and TH Holdings, FEC mooted the case by acting while the lawsuit 

was pending, and in Freedom Vote, the parties settled. In none of the cases did the FEC dispute 

standing.

Case 1:19-cv-02753-RCL Document 16 Filed 01/14/21 Page 3 of 5
4

Contrary to the DOJ’s assertion, and in line with FEC’s prior practice in defending failure 

to act cases, whether a suit arises due to the FEC’s failure to act or dismissal of a complaint is a 

distinction without a difference for purposes of Plaintiffs’ Article III injury. Either way, as 

detailed in Plaintiffs’ Response, Doc. 13 at 9, the injury occurred because Plaintiffs “did not get 

[the information] the statute entitled [them] to receive.” Zivotofsky ex rel. Ari Z. v. Sec’y of State, 

444 F.3d 614, 617–18 (D.C. Cir. 2006.) Whether through dismissal of a complaint or prolonged 

failure to act on a complaint, the FEC deprived Plaintiffs of the information to which they are 

entitled, causing injury.3 The FEC’s restoration of quorum has not remedied Plaintiffs’ injury.

Furthermore, CREW has an independent basis for standing due to the injury to its 

programmatic activities. Common Cause v FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (citing 

Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see Doc. 13 at 11-13 (detailing 

programmatic standing argument). These injuries are clearly plead in the Complaint. Doc. 1 at 

¶¶ 5-10 (discussing CREW’s programmatic activities). 

Accordingly, should the Court consider DOJ’s statement despite its severe untimeliness, 

Plaintiffs respectfully request that the Court find that Plaintiffs had standing, rendering the Court 

within its jurisdiction to enter the final judgment that issued more than nine months ago.

 3 Without explicitly stating as such, DOJ appears to be attempting to make a causation argument: 

the “important question here is whether Plaintiffs have articulated harm arising from the delay 

itself.” Doc. 15 at 2 (emphasis in original). This argument, made for the first time in Reply, does 

not withstand logical scrutiny. Plaintiffs’ informational injury is caused by the continuing failure 

to receive the information that they are entitled to have, due to the FEC’s failure to take action on 

the pending administrative complaint. Doc. 1, ¶ 57 (detailing impact on CREW of FEC’s 

continued delay). Informational injury is caused by the FEC’s failure to act just as assuredly as a 

FOIA plaintiff’s informational injury is caused by an agency’s failure to respond to a FOIA 

request. See CREW v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013) (“[I]f the agency has not issued 

its ‘determination’” on plaintiff’s FOIA request “within the required time period, the requester 

may bring suit directly in federal district court without exhausting administrative appeal 

remedies.”); Payne Enter., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“[S]tale 

information is of little value.”); Doc. 13 at 9. 

Case 1:19-cv-02753-RCL Document 16 Filed 01/14/21 Page 4 of 5
5

Respectfully submitted,

/s/ Laura C. Beckerman 

Laura C. Beckerman

(D.C. Bar No. 1008120)

Stuart McPhail

(D.C. Bar No. 1032529)

Citizens for Responsibility and Ethics

 in Washington

1101 K Street, N.W., Suite 201

Washington, DC 20005

Phone: (202) 408-5565

Fax: (202) 588-5020

lbeckerman@citizensforethics.org

Case 1:19-cv-02753-RCL Document 16 Filed 01/14/21 Page 5 of 5