1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

AMERICAN ACTION NETWORK, 

Intervenor-Defendant. 

 Civil Action No. 1:22-cv-03281 (CRC) 

AMERICAN ACTION NETWORK’S MOTION TO DISMISS 

Pursuant to Federal Rule of Civil Procedure 12, defendant American Action Network 

respectfully moves to dismiss with prejudice plaintiff Citizens for Responsibility and Ethics in 

Washington’s Complaint filed on October 27, 2022 (Dkt. No. 1). A Memorandum of Points and 

Authorities and Proposed Order accompany this Motion. 

Dated: January 6, 2023 

Respectfully submitted, 

By: s/ Stephen J. Obermeier

Stephen J. Obermeier (D.C. Bar No. 979667) 

Caleb P. Burns (D.C. Bar No. 474923)

Jeremy J. Broggi (D.C. Bar No. 1191522) 

WILEY REIN LLP 

2050 M Street, NW 

Washington, DC 20036 

(202) 719-7000

sobermeier@wiley.law

 Counsel for American Action Network 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 1 of 37
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

AMERICAN ACTION NETWORK, 

 Intervenor-Defendant. 

 Civil Action No. 1:22-cv-03281 (CRC) 

AMERICAN ACTION NETWORK’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 2 of 37
-iTABLE OF CONTENTS 

GLOSSARY ................................................................................................................................... ii

TABLE OF AUTHORITIES ......................................................................................................... iii

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

BACKGROUND .............................................................................................................................3

I. The FEC Enforcement Process ................................................................................3

II. The FEC Dismisses CREW’s Administrative Complaint .......................................6

III. CREW Sues The FEC ..............................................................................................7

IV. CREW Sues AAN ....................................................................................................9

V. The Court Dismisses CREW’s Suits As Unreviewable .........................................10

VI. CREW Again Asks The Court To Review The Unreviewable ..............................12

STANDARD OF REVIEW ...........................................................................................................14

ARGUMENT .................................................................................................................................15

I. The Court Should Dismiss Because CREW Lacks Standing ................................15

II. The Court Should Dismiss Because CREW’s Suit Is Time Barred .......................17

A. The FEC Dismissed CREW’s Complaint Years Ago And FECA 

Prohibits Suit After 60 Days. .....................................................................18

B. Contrary To CREW’s Assertion, The FEC’s Decision To Close Its 

File Was Not Another “Dismissal.” ...........................................................19

III. The Court Should Dismiss Because The FEC’s Decision Is Unreviewable ..........22

A. The FEC Exercised Its Prosecutorial Discretion To Dismiss 

CREW’s Claims. ........................................................................................22

B. The FEC’s Prosecutorial Discretion Stops Further Review. .....................23

C. The Single Commissioner Statement Cannot “Disclaim” The FEC’s 

Prosecutorial Discretion. ............................................................................25

CONCLUSION ..............................................................................................................................28

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 3 of 37
-iiGLOSSARY 

AAN American Action Network 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 4 of 37
-iiiTABLE OF AUTHORITIES 

Cases Page(s) 

*AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) .........................................................................................1, 4, 21

Am. Nat. Ins. Co. v. FDIC, 

642 F.3d 1137 (D.C. Cir. 2011) ...............................................................................................15 

Ams. for Prosperity Found. v. Bonta, 

141 S. Ct. 2373 (2021) ...............................................................................................................1 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .................................................................................................................15 

C.G.B. v. Wolf, 

464 F. Supp. 3d 174 (D.D.C. 2020) .........................................................................................27 

Campaign Legal Center v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) .................................................................................................16 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ...................................................................................4, 5, 18, 26 

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) .................................................................................................16 

CREW v. AAN, 

410 F. Supp. 3d 1 (D.D.C. 2019) .......................................................................................10, 18 

CREW v. AAN, 

415 F. Supp. 3d 143 (D.D.C. 2019) .........................................................................................10 

*CREW v. AAN, 

590 F. Supp. 3d 164 (D.D.C. 2022) .....................................................1, 3, 6, 11, 22, 23, 24, 25 

CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016) ...................................................................................7, 9, 18 

CREW v. FEC, 

299 F. Supp. 3d 83 (D.D.C. 2018) ...................................................................................7, 8, 18 

*CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) ...............................................................5, 6, 8, 9, 11, 22, 24, 25 

Authorities upon which we chiefly rely are marked with asterisks.

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 5 of 37
-iv- 

*CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) ...................................................................................1, 6, 11, 22 

*CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) ............................................................................................12, 23 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ...........................................................................................4, 18

FEC v. Akins, 

524 U.S. 11 (1998) .....................................................................................................................6 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................5, 14, 26, 27 

*Heckler v. Chaney, 

470 U.S. 821 (1985) ...............................................................................................................6, 8 

Jordan v. FEC, 

68 F.3d 518 (D.C. Cir. 1995) .......................................................................................18, 19, 22 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) .................................................................................................................15 

*Nat’l Ass’n for Home Care & Hospice, Inc. v. Burwell, 

77 F. Supp. 3d 103 (D.D.C. 2015) ...........................................................................................15 

Nat’l Rifle Ass’n of Am. v. FEC, 

854 F.2d 1330 (D.C. Cir. 1988) .....................................................................................2, 12, 18 

Sekhar v. United States, 

570 U.S. 729 (2013) .................................................................................................................26 

Spannaus v. FEC, 

990 F.2d 643 (D.C. Cir. 1993) .................................................................................................18 

Spokeo, Inc. v. Robins, 

578 U.S. 330 (2016) ...........................................................................................................15, 17 

*TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) .............................................................................................2, 15, 16, 17 

Trichell v. Midland Credit Mgmt., Inc., 

964 F.3d 990 (11th Cir. 2020) .............................................................................................2, 15 

Williams v. Lew, 

819 F.3d 466 (D.C. Cir. 2016) .................................................................................................15 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 6 of 37
-vStatutes, Rules, and Related Materials 

52 U.S.C. § 30106 ......................................................................................................................4, 20 

52 U.S.C. § 30107 ............................................................................................................................4 

52 U.S.C. § 30109 ....................................................................2, 4, 5, 6, 8, 9, 10, 12, 18, 19, 20, 21 

11 C.F.R. § 4.4 ...............................................................................................................................21 

11 C.F.R. § 5.4 ...................................................................................................................12, 19, 21 

Public Records and the Freedom of Information Act, 

45 Fed. Reg. 31291 (FEC, May 13, 1980) ...............................................................................21 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage 

in the Enforcement Process, 

72 Fed. Reg. 12545 (FEC, Mar. 16, 2007) ................................................................................5 

FEC Statements of Reasons 

Statement of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey 

and James E. “Trey” Trainor, III Regarding Concluded Enforcement Matters 

(May 13, 2022), 

https://www.fec.gov/resources/cms-content/documents/Redacted_Statement_

Regarding_Concluded_Matters_13_May_2022_Redacted.pdf .........................................14, 20 

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. 

Cooksey and James E. “Trey” Trainor, III, MUR No. 6589R (May 13, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf. ............................................14, 20 

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

C. Hunter and Matthew S. Petersen, MUR No. 6589 (July 30, 2014), 

https://www.fec.gov/files/legal/murs/6589/14044362004.pdf ..............................................6, 7 

Statement of Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R 

(Sept. 30, 2022) 

https://www.fec.gov/files/legal/murs/6589R/6589R_31.pdf .................3, 13, 20, 21, 25, 26, 27 

Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. FEC & AAN

(Apr. 19, 2018), 

https://www.fec.gov/resources/cms-content/documents/2018-04-19-ELWstatement.pdf ........................................................................................................................9, 27

Supplemental Statement of Reasons of Chairman Allen J. Dickerson, MUR No. 

6589R (Oct. 12, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf .............................................14, 20 

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1 

INTRODUCTION 

For more than a decade, Citizens for Responsibility and Ethics in Washington has 

repeatedly sought to force an ideological opponent, the American Action Network, to “disclose 

the identity of its donors” as the Federal Election Campaign Act requires of a “political 

committee.” Compl. ¶¶ 57, 63. But AAN is not, and never has been, a “political committee.” 

Therefore, its donor information is secured by the “privacy of association and belief guaranteed 

by the First Amendment.” AFL-CIO v. FEC, 333 F.3d 168, 177 (D.C. Cir. 2003) (quoting Buckley 

v. Valeo, 424 U.S. 1, 64 (1976)); see Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2381 

(2021) (protecting under First Amendment “confidentiality of donors’ information”). CREW is 

not entitled to obtain it. 

This suit—CREW’s fourth seeking AAN’s donor information—is a shameless collateral 

attack on this Court’s order in CREW v. AAN, 590 F. Supp. 3d 164 (D.D.C. 2022) (“AAN III”). 

There, the Court dismissed CREW’s lawsuit because the Federal Election Commission had already 

declined to pursue CREW’s allegations through an exercise of its unreviewable prosecutorial 

discretion. As the Court explained, the D.C. Circuit in New Models unequivocally “held that an 

FEC dismissal of an administrative complaint ‘that rests even in part on prosecutorial discretion 

cannot be subject to judicial review.’” Id. at 173; see CREW v. FEC, 993 F.3d 880 (D.C. Cir. 

2021) (“New Models”), en banc reh’g denied, 55 F.4th 918 (D.C. Cir. 2022). And because the 

FEC’s initial 2014 dismissal of CREW’s complaint invoked its prosecutorial discretion and hence 

should never have been subject to judicial review, CREW’s subsequent suit arising out of a second 

dismissal produced by a remand to the agency that never should have happened “must” be 

“dismiss[ed].” AAN III, 590 F. Supp. 3d at 175. 

Rather than pursue its appeal from the Court’s decision immediately, CREW put it on ice 

while it tried unsuccessfully to overturn New Models. Although CREW’s effort failed and its 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 8 of 37
2 

original appeal remains pending, CREW filed this additional action again seeking AAN’s 

confidential donor information based on the same allegations the FEC already declined to pursue. 

But the jurisdictional hurdles that blocked CREW’s third suit are even higher than before and block 

this fourth suit as well. 

First, CREW lacks standing. As before, CREW asserts it is injured because FECA 

supposedly requires AAN to disclose information that AAN has not disclosed. Compl. ¶¶ 10–12. 

But the Supreme Court has now clarified that “[a]n ‘asserted informational injury that causes no 

adverse effects cannot satisfy Article III,’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 

(2021) (quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020) 

(Katsas, J., sitting by designation)), and CREW’s conclusory allegations fail to plead factual 

content explaining how the absence of AAN’s more-than-a-decade-old donor information 

supposedly hindered CREW’s activities. Under the Supreme Court’s most recent teaching, 

CREW’s failure to allege how the supposed information deficit hindered its activities is fatal to its 

claim. 

Second, this action is untimely. FECA demands suit on an FEC dismissal “within 60 days 

after the date of the dismissal.” 52 U.S.C. § 30109(a)(8)(A), (B); see Nat’l Rifle Ass’n of Am. v. 

FEC, 854 F.2d 1330, 1334 (D.C. Cir. 1988) (“This limitations period is ‘jurisdictional and 

unalterable.’”). Here, the dismissals were years ago. The Complaint tries to solve this problem 

by asserting that the FEC’s recent vote to close its investigative file was a “dismissal.” Compl. 

¶¶ 1, 62; see Compl. ¶ 53. But the Complaint cites no legal support for that novel position, and 

there is none. Even the lone Commissioner that supports CREW’s lawsuit appears to acknowledge 

that treating a file closure as a dismissal would contradict “[t]he D.C. Circuit’s jurisprudence 

regarding the dismissal of Commission enforcement complaints.” Compl. Ex. 5 (Statement of 

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3 

Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 2 (Sept. 30, 2022)). The 

Commissioner believes that D.C. Circuit precedent is wrong. But her opinion has no bearing on 

whether that precedent binds this Court, which it obviously does. Furthermore, the text of FECA 

and the history of the Commission’s non-statutory file closure procedure confirm that the D.C. 

Circuit’s jurisprudence is correct. 

Third, even if there had been yet another dismissal, this action would be unreviewable for 

the same reasons as CREW’s last one: It is merely CREW’s latest effort to pursue allegations the 

FEC dismissed in an exercise of its unreviewable prosecutorial discretion years ago, as this Court 

held in AAN III. There, this Court recognized that the FEC’s initial dismissal decision “preclude[d] 

judicial review” of CREW’s citizen suit notwithstanding CREW’s allegation that a subsequent 

FEC dismissal decision “did not mention prosecutorial discretion at all,” AAN III, 590 F. Supp. 3d 

at 173, 174 n.7, as the agency never should have been forced to engage in any additional 

proceedings on this matter after it invoked prosecutorial discretion back in 2014. For similar 

reasons, the FEC’s initial dismissal would preclude judicial review here even if, as the Complaint 

wrongly alleges, the FEC’s file closure was a “new” dismissal for reasons somehow controlled by 

the opinion of a single commissioner that garnered no support from her fellow commissioners. 

For all these reasons, the Court should dismiss the Complaint.1

BACKGROUND 

I. THE FEC ENFORCEMENT PROCESS 

The Federal Election Commission is a six-member body charged with enforcing the 

Federal Election Campaign Act. By law, “[n]o more than 3 members of the Commission . . . may 

1

 CREW’s suit also fails on the merits because AAN is not, and never has been, a “political 

committee.” Furthermore, AAN expressly reserves its right to seek dismissal for failure to state a 

claim. See Fed. R. Civ. P. 12(b)(6), 12(h)(2). 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 10 of 37
4 

be affiliated with the same political party.” 52 U.S.C. § 30106(a)(1). In addition, “the affirmative 

vote of 4 members of the Commission shall be required,” 52 U.S.C. § 30106(c), for the 

Commission “to initiate,” “defend,” “or appeal any civil action,” 52 U.S.C. § 30107(a)(6), or “to 

conduct investigations,” 52 U.S.C. § 30107(a)(9). 

The bipartisan structure of the Commission reflects its sensitive role. “Unique among 

federal administrative agencies, the Federal Election Commission has as its sole purpose the 

regulation of core constitutionally protected activity—‘the behavior of individuals and groups only 

insofar as they act, speak and associate for political purposes.’” AFL-CIO, 333 F.3d at 170 

(quoting FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)). 

Wary of enabling partisan and ideological actors to chill political speech and association they 

oppose, the authors of FECA sought to guarantee at least a minimal level of bipartisanship before 

allowing the government to intrude into protected First Amendment activities. Without at least 

one vote by a Commissioner from the other party, there is no enforcement action. 

As relevant here, enforcement may begin when a person who believes a FECA violation 

has occurred files an administrative complaint. 52 U.S.C. § 30109(a)(1). “If the Commission, 

upon receiving a complaint . . . determines, by an affirmative vote of 4 of its members, that it has 

reason to believe” a violation has been or will be committed, then “[t]he Commission shall make 

an investigation of such alleged violation.” 52 U.S.C. § 30109(a)(2). Because FECA requires four 

votes to initiate enforcement, a complaint that fails to garner four votes—including as a result of 

an evenly divided or “deadlocked” Commission—must be dismissed. Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) (per R.B. Ginsburg, J.) 

(recognizing the possibility of “dismissal by deadlock”); see Common Cause v. FEC, 842 F.2d 

436, 449 (D.C. Cir. 1988) (same). 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 11 of 37
5 

The FEC often issues a statement of reasons after it votes. When the agency dismisses, the 

statement may indicate the dismissal is based on legal reasons or that “[t]he Commission has 

exercised its prosecutorial discretion.” Statement of Policy Regarding Commission Action in 

Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545, 12545–46 (FEC, Mar. 

16, 2007). Where the dismissal results from a divided vote, the D.C. Circuit requires “a statement 

of reasons by the declining-to-go-ahead Commissioners at the time when [the] deadlock vote 

results in an order of dismissal.” Common Cause, 842 F.2d at 449. “Since those Commissioners 

constitute a controlling group for purposes of the decision, their rationale necessarily states the 

agency’s reasons for acting as it did.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 

1476 (D.C. Cir. 1992). 

FECA authorizes a complainant “aggrieved” by a Commission dismissal to file a petition 

in federal district court and empowers the reviewing court to “declare that the dismissal of the 

complaint . . . is contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (C). “FECA’s ‘contrary to law’ 

formulation,” the D.C. Circuit has explained, “reflects [Administrative Procedure Act] 

§ 706(2)(A), which requires the court to ‘hold unlawful and set aside agency action’ that is 

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” CREW v. 

FEC, 892 F.3d 434, 437 (D.C. Cir. 2018) (“CHGO”) (citations omitted). If the Commission fails 

to conform with a judicial declaration that a dismissal is contrary to law, FECA authorizes the 

complainant to bring “a civil action to remedy the violation involved in the original complaint.” 

52 U.S.C. § 30109(a)(8)(C). 

Consistent with the Administrative Procedure Act and settled principles of administrative 

law, FECA does not authorize judicial review of dismissals based on enforcement discretion. “The 

Supreme Court has recognized that federal administrative agencies in general, and the Federal 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 12 of 37
6 

Election Commission in particular, have unreviewable prosecutorial discretion to determine 

whether to bring an enforcement action.” CHGO, 892 F.3d at 438 (citations omitted); see Heckler 

v. Chaney, 470 U.S. 821, 831 (1985); FEC v. Akins, 524 U.S. 11, 25 (1998). Accordingly, the 

D.C. Circuit has confirmed that a Commission dismissal “that rests even in part on prosecutorial 

discretion cannot be subject to judicial review.” New Models, 993 F.3d at 884. 

II. THE FEC DISMISSES CREW’S ADMINISTRATIVE COMPLAINT 

In 2012, CREW filed an administrative complaint with the FEC alleging that AAN should 

have registered as a political committee and disclosed its donors from mid-2009 to mid-2011. 

CREW sought an FEC “investigation into these allegations,” a declaration that AAN “violated the 

FECA and applicable FEC regulations,” and “sanctions appropriate to these violations.” Original 

Admin. Compl. at 8, In re Am. Action Network, MUR No. 6589 (filed June 7, 2012), 

https://www.fec.gov/files/legal/murs/6589/14044361739.pdf.2 

The FEC deadlocked. Three Commissioners found no reason to believe that AAN violated 

FECA and voted to dismiss CREW’s administrative complaint; three Commissioners voted to 

commence an investigation. Without the requisite affirmative vote of four Commissioners to 

proceed, see 52 U.S.C. § 30109(a)(2), the Commissioners voting to dismiss controlled the 

outcome, and their statement of reasons served as the basis for the agency’s dismissal of CREW’s 

administrative complaint. 

2

 According to the Complaint, “[o]n April 11, 2018, CREW filed an amended complaint with the 

FEC substituting complainant Melanie Sloan with complainant Noah Bookbinder and substituting 

new allegations specific to Mr. Bookbinder, but otherwise repeating the allegations in CREW’s 

original 2012 complaint.” Compl. ¶ 50; see Compl. Ex. 1. It does not appear that the FEC 

docketed that filing, see FEC, MUR No. 6589R, https://www.fec.gov/data/legal/matter-underreview/6589R/, and this Court has treated the 2012 complaint as operative even after the date of 

the supposed amendment, e.g., AAN III, 590 F. Supp. 3d at 166. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 13 of 37
7 

Under their reasoning, the Commission concluded AAN was not a “political committee” 

as that term is used in FECA because AAN did not have as its “major purpose” the nomination or 

election of federal candidates. See Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. Petersen at 27, MUR No. 6589 (July 30, 2014), 

https://www.fec.gov/files/legal/murs/6589/14044362004.pdf. The Commission also determined 

that it would dismiss CREW’s allegations “in exercise of [its] prosecutorial discretion.” Id.

III. CREW SUES THE FEC 

CREW sought review of the FEC’s dismissal in this Court. The Commission argued, 

among other things, that its dismissal was “justified by the Commission’s broad prosecutorial 

discretion” and was not judicially reviewable. FEC Mem. Supp. Summ. J. at 49, CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016) (No. 14-cv-01419), Dkt. No. 36; see id. at 50 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985)). 

This Court held the FEC’s dismissal “contrary to law.” CREW v. FEC, 209 F. Supp. 3d 

77, 95 (D.D.C. 2016) (“CREW I”), appeal dismissed, Nos. 16-5300, 16-5343, 2017 WL 4957233 

(D.C. Cir. Apr. 4, 2017). The Court remanded with instructions for the FEC to conduct, within 30 

days, a more particularized review of AAN’s advertisements, namely, those that qualified as 

electioneering communications as defined by FECA. See ibid. AAN appealed, but the D.C. 

Circuit dismissed the appeal because “[t]he district court order remanding the case to the Federal 

Election Commission [was] not a final, appealable order.” 2017 WL 4957233, at *1. 

On remand, the FEC deadlocked and dismissed for a second time. Consistent with the 

Court’s decision, the three controlling Commissioners did not “categorically exclude AAN’s 

electioneering communications from its major-purpose calculation.” CREW v. FEC, 299 F. Supp. 

3d 83, 90 (D.D.C. 2018) (“CREW II”), appeal dismissed, No. 18-5136, 2018 WL 5115542 (D.C. 

Cir. Sept. 19, 2018). Instead, they followed the Court’s command and conducted a fact-specific 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 14 of 37
8 

review of the twenty disputed AAN electioneering communications in an analysis that used the 

Court’s standard, weighed various factors, and recharacterized four electioneering 

communications as indicative of a major purpose to nominate or elect candidates. Nevertheless, 

the Court again found that the FEC’s dismissal was “contrary to law,” and remanded with 

instructions for the FEC to conform within 30 days to the Court’s new standard. Id. at 101. The 

Court also authorized a citizen suit, stating that “[i]f the FEC does not timely conform with the 

Court's declaration, CREW may bring ‘a civil action to remedy the violation involved in the 

original complaint.’” Id. (citing 52 U.S.C. § 30109(a)(8)(C)). AAN noticed its appeal. 

Soon after AAN noticed its appeal, the D.C. Circuit issued its decision in CHGO, another 

case arising from an FEC deadlock on an administrative complaint filed by CREW alleging that a 

nonprofit organization should have registered as a political committee. There, the D.C. Circuit 

held that the FEC’s dismissal of CREW’s administrative complaint was an unreviewable exercise 

of prosecutorial discretion and, further, that “[n]othing in [FECA] overcomes the presumption 

against judicial review” articulated in Heckler v. Chaney, 470 U.S. 821 (1985). CHGO, 892 F.3d 

at 439. The D.C. Circuit explained that it made no difference whether the controlling 

Commissioners had paired their exercise of enforcement discretion with substantive legal 

reasoning because “[t]he law of this circuit ‘rejects the notion of carving reviewable legal rulings 

out from the middle of non-reviewable actions.’” Id. at 441–42 (citations omitted). The D.C. 

Circuit also held that a “court may not authorize a citizen suit” when “the Commission exercises 

its prosecutorial discretion to decline an enforcement action” because such authorization 

“necessarily” would require the court to “subject the Commission’s exercise of discretion to 

judicial review, which it cannot do.” Id. at 439–40. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 15 of 37
9 

AAN moved the D.C. Circuit for summary reversal based on CHGO. AAN argued that 

the D.C. Circuit’s determination that “[n]othing in [FECA] overcomes the presumption against 

judicial review,” id. at 439, required reversal of this Court’s contrary conclusion that “FECA’s 

express provision for the judicial review of the FEC’s dismissal decisions . . . is just such a 

rebuttal,” CREW I, 209 F. Supp. 3d at 88 n.7. See AAN Mot. Summ. Rev. at 1–2, CREW v. FEC, 

No. 18-5136 (D.C. Cir. June 25, 2018), Doc. No. 1737659. In addition, AAN argued that this 

Court’s preemptive authorization of a citizen suit was contrary to CHGO’s holding that a district 

court “may not authorize a citizen suit” when the FEC declines enforcement based on prosecutorial 

discretion. CHGO, 892 F.3d at 440; see also AAN Mot. Summ. Rev. at 9, 13. The D.C. Circuit 

dismissed the appeal without reaching the merits because “[t]he district court orders remanding 

the action to the Federal Election Commission [were] not final, appealable orders.” 2018 WL 

5115542, at *1. 

Meanwhile, the FEC did not act within 30 days following the Court’s remand. In a public 

statement, then-FEC Vice Chair Ellen L. Weintraub—one of the non-controlling Commissioners 

who opposed dismissal in the FEC’s prior deadlocked votes—announced she would “[b]reak 

glass” and deprive the FEC of the quorum necessary to take any action conforming with this 

Court’s order. Compl. Ex. 2 (Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. 

FEC & AAN (Apr. 19, 2018)). The intentional effect was to enable CREW to bring a citizen suit 

pursuant to 52 U.S.C. § 30109(a)(8)(C). Ibid. Ordinarily, a single Commissioner’s nonparticipation would not defeat a quorum, but in this case, that was possible because the FEC had 

only four seated Commissioners, the bare statutory minimum needed for the FEC to act. 

IV. CREW SUES AAN 

CREW accepted Commissioner Weintraub’s invitation and sued AAN directly. CREW 

improperly expanded its allegations beyond what it claimed in its original administrative 

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10 

complaint, requesting a declaration that AAN became a political committee in 2009 or 2010 and 

remained one thereafter. Following a brief stay to determine the appealability of CREW II, AAN 

filed a motion to dismiss. AAN argued, among other things, that the FEC’s dismissal decision 

was not reviewable in light of the D.C. Circuit’s CHGO decision because it included an exercise 

of prosecutorial discretion, and that the Court lacked jurisdiction to consider conduct beyond that 

alleged in CREW’s original administrative complaint under the plain language of 52 U.S.C. 

§ 30109(a)(8)(C). 

The Court denied AAN’s motion in large part, allowing CREW to proceed on all time 

periods alleged in CREW’s original administrative complaint, i.e., from mid-2009 to mid-2011. 

With respect to reviewability, the Court did “not read CHGO to preclude judicial review” because, 

in the Court’s view, the controlling Commissioners’ “two references to prosecutorial discretion 

[were] tethered to their legal reasoning.” CREW v. AAN, 410 F. Supp. 3d 1, 15, 18 (D.D.C. 2019) 

(“AAN I”). In denying AAN’s subsequent motion for certification of an interlocutory appeal, the 

Court reiterated its position that “[w]hen the FEC’s invocation of prosecutorial discretion is based 

on legal analysis, [that invocation] does not preclude judicial review under CHGO.” CREW v. 

AAN, 415 F. Supp. 3d 143, 146–47 (D.D.C. 2019) (“AAN II”). Following these decisions, the 

parties entered fact discovery. AAN produced, subject to the Court’s protective order, thousands 

of confidential and highly confidential documents. 

V. THE COURT DISMISSES CREW’S SUITS AS UNREVIEWABLE 

While discovery was ongoing, the D.C. Circuit issued its decision in New Models, yet 

another case arising from an FEC deadlock on an administrative complaint filed by CREW 

alleging that a nonprofit organization should have registered as a political committee. In New 

Models, CREW made the exact same argument to the D.C. Circuit that it made to this Court: 

CHGO was not controlling “because the Commission’s statement of reasons in this case featured 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 17 of 37
11 

only a brief mention of prosecutorial discretion alongside a robust statutory analysis, whereas the 

statement of reasons in [CHGO] rested exclusively on prosecutorial discretion.” New Models, 993 

F.3d at 883. 

The D.C. Circuit rejected CREW’s argument. The court confirmed that a district court 

cannot review an FEC dismissal decision that is based even in part on prosecutorial discretion. 

New Models, 993 F.3d at 882 (citing CHGO, 892 F.3d 434). And the D.C. Circuit expressly held 

that it “matters[ ] not whether legal interpretation underlay the decision” to dismiss because any 

“Commission decision that rests even in part on prosecutorial discretion cannot be subject to 

judicial review.” Id. at 884, 886 n.4. Where that discretion is invoked, a court “cannot . . . review 

the legal analysis that accompanied the Commission’s exercise of prosecutorial discretion” no 

matter how brief the invocation and “irrespective of the length of [the] legal analysis.” Id. at 887. 

The D.C. Circuit also rejected the idea that FECA’s provision authorizing review of whether 

agency action is “contrary to law” is somehow different from the Administrative Procedure Act’s 

provision authorizing review of whether agency action is “not in accordance with law.” Id. at 892. 

Based on New Models, AAN sought reconsideration of the Court’s order denying 

dismissal. The D.C. Circuit’s decision expressly made clear that district courts cannot review FEC 

decisions that rest even in part on prosecutorial discretion, and “[t]his case,” AAN argued, “is 

indistinguishable from New Models.” AAN Mem. Supp. Recon. at 9, AAN III (No. 18-cv-00945), 

Dkt. 59-1. 

The Court agreed, acknowledging that “AAN is correct that the [D.C. Circuit’s] subsequent 

ruling in New Models precludes judicial review of that dismissal.” AAN III, 590 F. Supp. 3d at 

173. The Court further held that because the first dismissal was unreviewable, “the Court lacked 

the power to issue the remand order that resulted in the second [dismissal],” as well as CREW’s 

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12 

“citizen suit” filed thereafter. Id. at 167, 174 n.7. Because “CREW’s challenge to the FEC’s 

dismissal of its administrative complaint is not subject to judicial review,” the Court “grant[ed] 

AAN’s motion for reconsideration and dismiss[ed] th[e] suit.” Id. at 175. 

CREW appealed. At CREW’s request, the appeal was held in abeyance while CREW 

sought en banc rehearing of New Models. Compl. ¶ 52. The D.C. Circuit denied rehearing, CREW 

v. FEC, 55 F.4th 918 (D.C. Cir. 2022) (“New Models II”), confirming New Models is the law of 

this Circuit. 

VI. CREW AGAIN ASKS THE COURT TO REVIEW THE UNREVIEWABLE 

On August 29, 2022, the FEC voted five-to-one to take the administrative step of closing 

the investigative file it first opened when CREW filed its administrative complaint in June 2012. 

Compl. Ex. 3 (Certification, MUR No. 6589R (Aug. 29, 2022)). Under the Commission’s rules, 

the “vote[ ] to close such an enforcement file” authorized agency staff to notify AAN that any nonexempt investigatory materials would be “placed on the public record of the Agency.” 11 C.F.R. 

§ 5.4(a)(4). Finally, after ten years of proceedings launched by an ideological opponent, AAN 

would be free to engage in its protected First Amendment activities without threat of further 

harassment from CREW. 

But it was not to be. On October 27, 2022, CREW filed this suit—its fourth seeking a 

court order that would declare AAN a “political committee” based on activity that occurred over 

ten years ago and force it to “disclose the identity of its donors.” Compl. ¶¶ 57, 63. The Complaint 

largely echoed the previous allegations. CREW, however, apparently recognized a fundamental 

problem: FECA requires an aggrieved party to petition the court “within 60 days after” “a dismissal 

of a complaint by the Commission,” 52 U.S.C. § 30109(a)(8)(A), (B); see Nat’l Rifle Ass’n of Am., 

854 F.2d at 1334 (“This limitations period is ‘jurisdictional and unalterable.’”), and, in this 

proceeding, the FEC dismissed CREW’s complaint years ago. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 19 of 37
13 

The Complaint attempts to solve this fundamental jurisdictional problem by claiming that 

the Commission’s vote to close its enforcement file was another “dismissal.” Compl. ¶¶ 1, 62; see

Compl. ¶ 53. But the Commission has never equated an investigative file closure with a 

“dismissal,” the official record of the file closure in this proceeding does not label it as such, see 

Compl. Ex. 3 (Certification, MUR No. 6589R (Aug. 29, 2022)), and no court dismissing a 

challenge to an FEC dismissal as untimely has ever considered relevant the date at which the 

agency closed its investigative file. 

That is not the only threshold reviewability problem the Complaint tries to solve. 

Recognizing that New Models would bar review even if the Complaint were timely, the Complaint 

alleges that Commissioner Weintraub’s statement of reasons explaining why she dissented from 

the ministerial decision to close the investigative file, which was joined by no other commissioner, 

somehow retroactively converted her into the “the ‘controlling commissioner’” for purposes of the 

Commission’s 2018 failure to act. Compl. ¶¶ 55–56. Because that solo dissent “unequivocally 

disclaims prosecutorial discretion” as a basis for dismissals that occurred years ago, CREW claims 

that it may now obtain the judicial review that this Court has already squarely held foreclosed. 

Compl. ¶¶ 55–56. 

The Complaint borrows these theories from Commissioner Weintraub herself—that is, 

from the same Commissioner who voted against dismissal in 2014 and 2016, deprived the FEC of 

its quorum in 2018, and dissented from the FEC’s file closure vote in 2022. Although 

Commissioner Weintraub has never voted to end this matter, her statement purports to be the 

FEC’s “controlling statement of reasons” explaining a “dismissal.” Compl. Ex. 5 (Statement of 

Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 7–8 (Sept. 30, 2022)). In 

reality, her statement is a dissent. Rather than attempt to justify the Commission’s result, the 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 20 of 37
14 

statement claims that the Commission’s actual actions and reasoning are “firmly contrary to law.” 

Id. at 8. Its self-described purpose is to help “CREW’s . . . lawsuit . . . succeed.” Id. at 13. The 

statement does not “make judicial review a meaningful exercise” by explaining “the agency’s 

reasons for acting as it did.” Nat’l Republican Senatorial Comm., 966 F.2d at 1476. Instead, it 

expressly thumbs its nose both at the reasons the agency itself articulated and at the D.C. Circuit’s 

conclusion that the agency’s actions are not reviewable. 

Tellingly, no other Commissioner joined the statement, and three Commissioners wrote 

separately to explain why the statement is wrong. Grounding their reasoning in statutory text and 

D.C. Circuit precedent, these Commissioners explained that “a dismissal, as a substantive 

enforcement decision, exists in an entirely different category from customary, non-statutory 

administrative acts such as closing the file.” Statement of Chairman Allen J. Dickerson and 

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

Enforcement Matters, at 3 (May 13, 2022), https://www.fec.gov/resources/cmscontent/documents/Redacted_Statement_Regarding_Concluded_Matters_13_May_2022_Redact

ed.pdf. And they explained that Commissioner Weintraub’s contrary view “cannot be reconciled 

with our enabling statute.” Statement of Reasons of Chairman Allen J. Dickerson and 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, MUR No. 6589R, at 4 (May 

13, 2022), https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf; see also Supplemental 

Statement of Reasons of Chairman Allen J. Dickerson, MUR No. 6589R (Oct. 12, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf. 

STANDARD OF REVIEW 

The Court should dismiss the Complaint for lack of subject matter jurisdiction. “In 

response to a motion to dismiss a complaint for lack of subject matter jurisdiction under Federal 

Rule of Civil Procedure 12(b)(1), the plaintiff must prove by a preponderance of the evidence that 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 21 of 37
15 

the Court has jurisdiction.” Nat’l Ass’n for Home Care & Hospice, Inc. v. Burwell, 77 F. Supp. 

3d 103, 107 (D.D.C. 2015) (Cooper, J.). 

The court “assume[s] the truth of all material factual allegations in the complaint.” Am. 

Nat. Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). But the court will “not assume the 

truth of legal conclusions,” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (citing Arpaio v. 

Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)), nor “accept ‘threadbare recitals of a cause of action’s 

elements, supported by mere conclusory statements,’” ibid. (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 663 (2009)). 

ARGUMENT 

I. THE COURT SHOULD DISMISS BECAUSE CREW LACKS STANDING 

To establish Article III standing, “[t]he plaintiff must have (1) suffered an injury in fact, 

(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 

“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). 

CREW asserts it is injured because FECA requires AAN to disclose information that AAN 

has not disclosed. Compl. ¶¶ 10–12. But CREW has not plausibly pled “that the alleged 

information deficit hindered” its activities, TransUnion, 141 S. Ct. at 2214, and the Supreme Court 

recently clarified that “[a]n ‘asserted informational injury that causes no adverse effects cannot 

satisfy Article III,’” ibid. (quoting Trichell, 964 F.3d at 1004). 

The closest CREW comes to identifying any actual adverse effects is its general allegation 

that “CREW needs . . . reports required by the FECA” to “assess whether an individual, candidate, 

political committee, or other regulated entity is complying with federal campaign finance law.” 

Compl. ¶ 10. But that general description of CREW’s activities does not explain how it is harmed 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 22 of 37
16 

from an inability to make such assessments. The injury to CREW cannot stem from its desire to 

assess anyone else’s legal compliance because the Supreme Court and D.C. Circuit have both made 

clear that “the public interest that private entities comply with the law cannot ‘be converted into 

an individual right by a statute that denominates it as such.’” TransUnion, 141 S. Ct. at 2206 

(quoting Lujan, 504 U.S. at 576–77); see Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 

1997) (“To hold that a plaintiff can establish injury in fact merely by alleging that he has been 

deprived of the knowledge as to whether a violation of the law has occurred would be tantamount 

to recognizing a justiciable interest in the enforcement of the law.”). 

CREW’s other alleged harms are even more conclusory. According to the Complaint, 

“CREW is hindered in its programmatic activity” when a regulated entity “fails to disclose” 

required information and “when the FEC fails to properly administer the FECA’s reporting 

requirements.” Compl. ¶¶ 10–11. But here again, the Complaint contains no actual factual 

allegations that purport to show how CREW’s programmatic activities are hindered when someone 

else does not file disclosure reports, or when CREW is dissatisfied with the FEC’s administration 

of FECA. CREW’s “threadbare recitals” of informational injury are “not entitled to the 

assumption of truth.” Iqbal, 556 U.S. at 678–79. Thus, CREW has not plausibly alleged 

“programmatic” harm. 

If that were not enough, CREW’s own allegations provide additional “reason to doubt their 

claim that the information would help them.” Campaign Legal Center v. FEC, 952 F.3d 352, 356 

(D.C. Cir. 2020). According to the Complaint, “CREW is committed to protecting the right of 

citizens to be informed about the activities of government officials” and “reducing the influence 

of money in politics.” Compl. ¶ 8. But the Complaint seeks the identity of AAN’s donors for 

activities that took place mid-2009 to mid-2011. Compl. ¶¶ 30, 57, 63. If “overnight is a long 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 23 of 37
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time in politics” and “a week is forever,” see M.J. Lee, Dan Rather: Mitt has ‘good chance’, 

Politico (Apr. 30, 2012), https://www.politico.com/story/2012/04/dan-rather-mitt-has-goodchance-075736 (capitalization altered), a decade must be eternity or more. As CREW never 

explains how obtaining AAN’s more-than-a-decade-old donor list will help it fulfill its supposed 

mission today, there is substantial reason to doubt that AAN’s information will help CREW. 

Perhaps anticipating the fundamental problems with its Complaint, CREW brazenly 

suggests that ordinary Article III pleading requirements do not apply to “violations of the FECA 

that require accurate disclosure of contribution information and the filing of public reports by 

political committees.” Compl. ¶ 12 (citing Campaign Legal Center, 952 F.3d at 356). But the 

Supreme Court rejected a similar argument in TransUnion, explaining that an “informational 

injury” defined by federal statute becomes cognizable under Article III only where the plaintiff 

“identifie[s] . . . downstream consequences from failing to receive the required information.” 141 

S. Ct. at 2214 (quotation marks omitted); see Spokeo, 578 U.S. at 339 (“Congress cannot erase 

Article III’s standing requirements”). Because CREW has not plausibly alleged any downstream 

consequences arising from its failure to obtain AAN’s information, the Complaint must be 

dismissed. 

II. THE COURT SHOULD DISMISS BECAUSE CREW’S SUIT IS TIME BARRED 

This action is untimely. The Complaint asserts the Commission’s recent vote to close its 

file was a “dismissal.” Compl. ¶¶ 1, 62; see Compl. ¶ 53. In reality, the FEC dismissed CREW’s 

complaint in 2014 and, on remand, in 2016. There is no support for CREW’s novel argument that 

the agency’s recent decision to take the ministerial act of closing the file was another “dismissal.” 

Because any challenge to the agency’s actual dismissals was long ago time-barred—as CREW 

itself knows since it brought timely actions challenging those dismissals years ago—the Court 

should dismiss the Complaint for lack of subject matter jurisdiction. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 24 of 37
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A. The FEC Dismissed CREW’s Complaint Years Ago And FECA Prohibits Suit 

After 60 Days. 

The time for CREW to seek review of the FEC’s dismissal of its administrative complaint 

ran long ago. FECA provides that a party aggrieved by “a dismissal of a complaint by the 

Commission” must petition the court for review “within 60 days after the date of the dismissal.” 

52 U.S.C. § 30109(a)(8)(A), (B). “This limitations period is ‘jurisdictional and unalterable.’” Nat’l 

Rifle Ass’n of Am., 854 F.2d at 1334; see also Spannaus v. FEC, 990 F.2d 643, 644 (D.C. Cir. 

1993). Accordingly, “a petitioner’s failure to comply with the 60-day limit in [FECA] divests the 

district court of jurisdiction.” Jordan v. FEC, 68 F.3d 518, 518–19 (D.C. Cir. 1995). 

In this case, the Commission first dismissed CREW’s complaint “in June 2014.” CREW I, 

209 F. Supp. 3d at 83. As required by the text of FECA and D.C. Circuit precedent, this Court 

recognized that when “the Commissioners deadlocked 3-3 . . . on whether to commence an 

investigation,” the Commission had dismissed the complaint. Ibid.; accord Democratic Cong. 

Campaign Comm., 831 F.2d at 1133; Common Cause, 842 F.2d at 449. Recognizing the time-bar, 

CREW brought suit within 60 days. 

On remand from this Court’s first review, “the Commission again dismissed CREW’s 

complaint in a deadlocked decision,” CREW II, 299 F. Supp. 3d at 86, this time in October 2016, 

Certification, MUR No. 6589R (Oct. 18, 2016), 

https://www.fec.gov/files/legal/murs/6589/16044401006.pdf. Cognizant again of the time-bar, 

CREW timely sued again, and this Court again concluded the agency had acted contrary to law 

and again remanded the complaint to the agency, ordering it to act within thirty days. 

The FEC did not “dismiss[ ] again.” AAN I, 410 F. Supp. 3d at 25. “[H]ad the complaint 

been dismissed again,” CREW would have sued the FEC again and “the saga would have 

continued.” Ibid. Instead, “[t]he agency failed to act” and CREW “invoked FECA’s citizen-suit 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 25 of 37
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provision to sue AAN directly.” Id. at 7, 25; see 52 U.S.C. § 30109(a)(8)(C). This Court 

ultimately dismissed CREW’s citizen suit, and CREW’s appeal “is currently being held in 

abeyance.” Compl. ¶ 52. 

The history is long, but the lesson is short. The FEC first dismissed CREW’s complaint in 

2014 and, following this Court’s remand, the FEC dismissed CREW’s complaint again in 2016. 

These were the only times the agency dismissed the complaint. Because the statutory deadline to 

challenge the FEC’s dismissals ran long ago, CREW’s untimely effort to challenge those 

dismissals yet again “must be dismissed for lack of jurisdiction.” Jordan, 68 F.3d at 519. 

B. Contrary To CREW’s Assertion, The FEC’s Decision To Close Its File Was 

Not Another “Dismissal.” 

Seeking to evade this jurisdictional hurdle, the Complaint falsely alleges that “the FEC 

once again voted to dismiss” “[o]n August 29, 2022.” Compl. ¶ 53; see Compl. ¶¶ 1, 62. In reality, 

the Commission voted at that time only to “[c]lose the file” and “[s]end the appropriate letter” 

notifying AAN that any non-exempt investigatory materials would be placed on the public docket 

within 30 days. Compl. Ex. 3 (Certification, MUR No. 6589R (Aug. 29, 2022)); see 11 C.F.R. 

§ 5.4(a)(4). 

Prior to this proceeding, no one has ever suggested file closure is a “dismissal.” In fact, 

years of litigation proceeded in this Court—and continues to proceed at the D.C. Circuit—based 

on the understanding that the requisite dismissals occurred long ago. The Complaint cites no 

judicial opinion, scholarly writing, or other authority that supports its brazen claim to the contrary. 

Indeed, the position is so far outside the mainstream that the FEC Chair felt compelled to address 

the issue again in a supplemental statement explaining, in no uncertain terms, that “[c]losing the 

file is a convenient, ministerial act, not a dismissal of a matter on its merits,” and that any assertions 

to the contrary are “without legal support of any kind.” Supplemental Statement of Reasons of 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 26 of 37
20 

Chairman Allen J. Dickerson, MUR No. 6589R, at 1 (Oct. 12, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf. 

It appears the sole adherent to the Complaint’s view is the Commissioner that urged CREW 

to file this lawsuit. Putting aside the naked political nature of her actions—contrary to the 

bipartisan structure of the agency—even her statement makes no real effort to justify the position,3

instead appearing to acknowledge that equating file closure with dismissal contradicts “[t]he D.C. 

Circuit’s jurisprudence regarding the dismissal of Commission enforcement complaints.” Compl. 

Ex. 5 (Statement of Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 2 (Sept. 

30, 2022)). And rather than try to distinguish D.C. Circuit precedent, the statement just repeatedly 

disparages binding Circuit authority as “woefully misplaced,” “damag[ing],” and even as “science 

fiction.” Ibid. (emphasis removed). 

Of course, it is not for this Court to decide the wisdom of D.C. Circuit precedent. But even 

if it were, the Circuit’s view is the correct one. FECA, as has been explained, requires four 

Commissioners to find “reason to believe” a violation has occurred to initiate enforcement. 52 

U.S.C. § 30109(a)(2); see also 52 U.S.C. § 30106(c). By contrast, the text of FECA is completely 

3

 Apparently, Commissioner Weintraub first attempted to equate file closure with dismissal at an 

FEC open meeting held April 22, 2022. Her comment prompted three Commissioners to issue a 

statement explaining why “it is wrong to conflate the declination to proceed with enforcement and 

the attendant issuance of a statement of reasons with the nominal act of file closure.” Statement 

of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, 

III Regarding Concluded Enforcement Matters, at 2 (May 13, 2022), 

https://www.fec.gov/resources/cms-content/documents/Redacted_Statement_Regarding_Conclu

ded_Matters_13_May_2022_Redacted.pdf. Grounding their reasoning in statutory text and D.C. 

Circuit precedent, these Commissioners explained that “a dismissal, as a substantive enforcement 

decision, exists in an entirely different category from customary, non-statutory administrative acts 

such as closing the file.” Id. at 3; see also Statement of Chairman Allen J. Dickerson and 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, MUR No. 6589R (May 13, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf. Despite their reasoning having been 

available, Commissioner Weintraub’s statement does not purport to refute it. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 27 of 37
21 

silent with respect to file closure and attaches no significance to that non-statutory act. 

Accordingly, the answer to the Commissioner’s gripe that “the D.C. Circuit has focused on the 

Commission’s split reason-to-believe votes” to mark dismissal when, she believes, it should have 

considered the vote “to close the file,” Compl. Ex. 5 (Statement of Reasons of Commissioner Ellen 

L. Weintraub, MUR No. 6589R, at 2–3 (Sept. 30, 2022) (parenthetical omitted)), is simply that 

FECA’s text directs that result. It is not the D.C. Circuit that has given pride-of-place to the 

Commission’s “reason to believe” votes, but FECA itself. 

In addition to the statutory text, the history of the FEC’s file closure procedure is 

instructive. FECA directs the Commission to keep investigatory materials confidential. See 52 

U.S.C. § 30109(a)(12). The Freedom of Information Act, on the other hand, generally requires 

that agency records be publicly disclosed. In 1980, the Commission adopted a regulation “that 

reconciles FECA with the Freedom of Information Act.” AFL-CIO, 333 F.3d at 171; see Public 

Records and the Freedom of Information Act, 45 Fed. Reg. 31291 (FEC, May 13, 1980). Pursuant 

to that rule, all 

non-exempt 52 U.S.C. 30109 investigatory materials shall be placed on the public 

record of the Agency no later than 30 days from the date on which all respondents 

are notified that the Commission has voted to close such an enforcement file. 

11 C.F.R. § 5.4(a)(4) (emphasis added); see 11 C.F.R. § 4.4(a)(4) (parallel codification). There 

are no other references to file closure in the Commission’s regulations, and none in FECA itself. 

Accordingly, this history of the FEC’s non-statutory file closure procedure shows that it is merely 

an administrative function to demarcate the “public release of all investigatory file materials not 

exempted by the Freedom of Information Act,” AFL-CIO, 333 F.3d at 170, and not to serve as a 

shadow dismissal procedure. 

In sum, the Complaint intentionally confuses the clear distinction between the 

Commission’s substantive “reason to believe” vote, required by FECA, and the ministerial vote to 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 28 of 37
22 

close the file under the Commission’s administrative regulations. Because the Commission’s 

substantive votes (and thus its actual dismissals) occurred far outside the time FECA allows for 

seeking judicial review, the Complaint “must be dismissed for lack of jurisdiction.” Jordan, 68 

F.3d at 519. 

III. THE COURT SHOULD DISMISS BECAUSE THE FEC’S DECISION IS 

UNREVIEWABLE 

Even if CREW’s suit were not long ago time-barred, it would still have to be dismissed 

because it is yet another effort to obtain review of an FEC decision to dismiss a complaint in an 

exercise of its unreviewable prosecutorial discretion, which this Court already held unreviewable 

in AAN III. Just as the FEC’s 2014 dismissal precluded review of CREW’s citizen suit, it would 

preclude judicial review here even if there were some new dismissal. CREW cannot avoid that 

fact by claiming that a lone commissioner’s solo dissent somehow retroactively vitiates the 

reasoning that the FEC actually embraced years ago. 

A. The FEC Exercised Its Prosecutorial Discretion To Dismiss CREW’s Claims. 

This Court dismissed CREW’s citizen suit against AAN because D.C. Circuit precedent 

unambiguously required that result. In New Models, the D.C. Circuit squarely held that “a 

Commission decision that rests even in part on prosecutorial discretion cannot be subject to judicial 

review.” AAN III, 590 F. Supp. 3d at 174 (quoting New Models, 993 F.3d at 884); see also CHGO, 

892 F.3d at 442 (“The law of this circuit ‘rejects the notion of carving reviewable legal rulings out 

from the middle of non-reviewable actions.’”). 

The FEC’s dismissal in this matter is on all fours with New Models. There, just like here, 

the controlling Commissioners’ statement of reasons when CREW’s complaint was initially 

dismissed back in 2014 included a “robust analysis” of the legal reasons for their decision and 

“made only passing reference to prosecutorial discretion.” 993 F.3d at 886. There, just like here, 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 29 of 37
23 

CREW argued that the legal analysis sufficed to distinguish the case from CHGO, reasoning that 

“the Commission’s statement of reasons in this case featured only a brief mention of prosecutorial 

discretion alongside a robust statutory analysis, whereas the statement of reasons in [CHGO] rested 

exclusively on prosecutorial discretion.” Id. at 883. And the D.C. Circuit squarely rejected 

CREW’s argument, concluding that it “matters[ ] not whether legal interpretation underlay the 

decision” to dismiss because any “Commission decision that rests even in part on prosecutorial 

discretion cannot be subject to judicial review” no matter how brief the FEC’s invocation of 

discretion and “irrespective of the length of its legal analysis.” Id. at 884, 886 n.4, 887. 

“Faced with these parallel circumstances,” this Court held that its review of CREW’s 

citizen suit had been unambiguously foreclosed “in New Models.” AAN III, 590 F. Supp. 3d at 

174. That was the required result. Even CREW subsequently acknowledged the similarities, citing 

this Court’s dismissal of its citizen suit as a reason to overturn New Models. Notice Supp. 

Authority at 2, New Models II (No. 19-5161), Doc. #1937809. The judges that would have 

reversed New Models agreed, describing this litigation and that one as “almost identical” and 

explaining that, under New Models, this Court “had no choice but to dismiss CREW’s [citizen] 

suit” because the FEC had invoked enforcement discretion in its original dismissal. New 

Models II, 55 F.4th at __, 2022 WL 17578942, at *10 (Millett, J., joined by Pillard, J., dissenting 

from the denial of rehearing en banc). 

B. The FEC’s Prosecutorial Discretion Stops Further Review. 

For the same reasons, the D.C. Circuit’s New Models decision would eliminate the 

foundation for CREW’s fourth lawsuit and preclude judicial review of the allegations even if it 

were not time-barred. It is undisputed that, in 2014, the FEC relied on its prosecutorial discretion 

when it elected not to pursue CREW’s allegations against AAN. Compl. ¶ 44. Because this suit 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 30 of 37
24 

seeks to pursue allegations that have already been dismissed through an exercise of the FEC’s 

unreviewable prosecutorial discretion, it fails for the same reason as the citizen suit. 

The Complaint contends otherwise, asserting this suit will not examine the FEC’s 

enforcement discretion but only the more recent statement authored by “Commissioner 

Weintraub.” Compl. ¶¶ 55–60. For reasons that are explained below, the Complaint is wrong to 

assert that “Commissioner Weintraub . . . now speaks for ‘the Commission’ in this case.” Compl. 

¶ 55. But even that were true, the case would remain unreviewable because the Commission 

invoked its prosecutorial discretion when it issued “the initial statement” explaining dismissal in 

2014. AAN III, 590 F. Supp. 3d at 174 n.7. 

Indeed, that was this Court’s holding in AAN III. There, just like here, CREW argued its 

suit should continue notwithstanding New Models because the Commission’s initial statement of 

reasons had been “superseded” by a second statement that “never invoked prosecutorial 

discretion.” CREW Mem. Opp’n Recon. at 7, 15, AAN III (No. 1:18-cv-00945), Dkt. No. 62.4

 

And the Court rejected that argument, explaining that “if the passing reference to prosecutorial 

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

the Court lacked the power to issue the remand order that resulted in the second statement.” AAN 

III, 590 F. Supp. 3d at 174 n.7. Because “the Commissioners never would have issued a second 

statement” without the erroneous remand, it made no difference whether the “second statement 

did not mention prosecutorial discretion at all.” Ibid. Either way, the citizen suit “must” be 

dismissed. Id. at 175. Accord CHGO, 892 F.3d at 439–40 (holding a “court may not authorize a 

4

 In fact, the FEC’s second statement of reasons “incorporated by reference” its prior invocation 

of discretion—as even CREW now appears to acknowledge. Compl. ¶ 52. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 31 of 37
25 

citizen suit” when “the Commission exercises its prosecutorial discretion to decline an 

enforcement action”).

The same is true here. CREW again claims the FEC’s invocation of discretion has been 

“superseded” by a later statement—this time, the statement issued by a single commissioner in 

2022, purportedly explaining why the Commission failed to act in 2018. Compl. Ex. 5 (Statement 

of Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 6, 8 (Sept. 30, 2022)). And, 

like before, CREW claims that the later statement overcomes the Commission’s original 

invocation of discretion. Compl. ¶¶ 56, 64. However, CREW does not, and cannot, dispute that, 

like before, both the 2018 non-action and Commissioner Weintraub’s latest new statement of 

reasons “never would have issued” but for the prior remands. AAN III, 590 F. Supp. 3d at 174 n.7. 

In short, it makes no difference whether the 2022 decision was a yet another dismissal. 

Just as the Commission’s “initial statement” invoking its prosecutorial discretion barred CREW’s 

subsequent citizen suit even if “the second statement did not mention prosecutorial discretion at 

all,” ibid., the same initial statement precludes review here. This suit pursues the same allegations 

as the citizen suit and all prior suits. Because the Commission already dismissed the allegations 

through an exercise of its prosecutorial discretion, this case “necessarily” would require the court 

to “subject the Commission’s exercise of discretion to judicial review, which it cannot do.” 

CHGO, 892 F.3d at 439–40. 

C. The Single Commissioner Statement Cannot “Disclaim” The FEC’s 

Prosecutorial Discretion. 

Nothing in Commission Weintraub’s 2022 statement of reasons provides any basis to 

disturb that conclusion. 

To begin with, the statement does not purport to explain the Commission’s August 2022 

decision to close the file—the supposed basis of jurisdiction here—but to give “the rationale for 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 32 of 37
26 

the Commission’s May 10, 2018, [reason-to-believe] votes.” Compl. Ex. 5 (Statement of Reasons 

of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 7 (Sept. 30, 2022)). The Complaint 

agrees, but then seeks to invoke this Court’s jurisdiction based upon the Commission’s vote to 

close the file. Compl. ¶ 53. The Complaint cannot have it both ways. Either the statement controls 

the 2018 vote, in which case CREW’s suit is untimely, or it provides the views of a single 

commissioner regarding the 2022 ministerial act of closing the file, which is not subject to judicial 

review. Either way, it provides no basis for judicial review of anything. 

CREW’s contrary theory rests on the premises not only that the 2022 action is a dismissal 

(which it is not, see Section II, supra), but that Commissioner Weintraub’s statement somehow 

single-handedly retroactively altered the basis for the FEC’s previous dismissals of CREW’s 

complaint. That “sounds absurd, because it is.” Sekhar v. United States, 570 U.S. 729, 738 (2013). 

Commission Weintraub’s single-commissioner statement is not “controlling” as to long-ago 

decisions from which its author dissented, and Commissioner Weintraub cannot unilaterally 

declare herself to “speak[] for ‘the Commission’” as to all actions ever taken “in this case.” Compl. 

¶¶ 54–55. As the D.C. Circuit has explained, the FEC must issue “a statement of reasons by the 

declining-to-go-ahead Commissioners at the time when a deadlock vote results in an order of 

dismissal.” Common Cause, 842 F.2d at 449 (emphasis added). “Since those Commissioners 

constitute a controlling group for purposes of the decision, their rationale necessarily states the 

agency’s reasons for acting as it did.” Nat’l Republican Senatorial Comm., 966 F.2d at 1476. 

Here, the supposedly controlling statement not only was issued by a Commissioner who repeatedly 

voted against the action in question, but was issued years after the Commission’s substantive vote. 

See Compl. ¶¶ 53–54. That is not a controlling statement; it is just a dissenting Commissioner’s 

attempt to rewrite history. 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 33 of 37
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The substance of the supposedly controlling statement confirms as much. The D.C. Circuit 

requires a statement of reasons to provide “the agency’s reasons for acting as it did” and “make 

judicial review a meaningful exercise.” Nat’l Republican Senatorial Comm., 966 F.2d at 1476. 

The statement here, by contrast, does not purport to justify the Commission’s decision to dismiss 

CREW’s complaint; it instead condemns that decision as “firmly contrary to law.” Compl. Ex. 5 

(Statement of Reasons of Commissioner Ellen L. Weintraub, MUR No. 6589R, at 8, 13 (Sept. 30, 

2022)). The statement is effectively a dissent, written by a Commissioner that voted against the 

result she supposedly controls. Its avowed purpose is to help “[CREW’s] lawsuit” against the 

Commission “succeed.” Ibid. (emphasis added). If controlling, the statement would be the 

regulatory equivalent of a boxer taking a dive. The thought that it does control for purposes of 

judicial review is thus self-evidently ridiculous. 

Indeed, while it ultimately makes no difference since the Commission’s non-action in 2018 

was not a judicially reviewable dismissal, the Complaint is not even correct to claim that 

Commissioner Weintraub controlled the result in 2018. When, in April 2018, Commissioner 

Weintraub refused to vote, she announced that she was “breaking the glass” to “[p]lac[e] this 

matter in CREW’s hands.” Compl. Ex. 2 (Statement of Vice Chair Ellen L. Weintraub Regarding 

CREW v. FEC & AAN, at 1 (Apr. 19, 2018)). For the next several years, CREW subjected AAN 

to invasive and burdensome discovery of its confidential, highly confidential, and First 

Amendment privileged information. If, as the Complaint alleges (¶¶ 54–55), Commissioner 

Weintraub had seized control a month later in May 2018, then CREW’s citizen suit would have 

been moot almost as soon as it was filed, as there would have been some actual agency action to 

review. At a minimum, one would have expected the Commission to inform the Court its 

jurisdiction was now in question. See C.G.B. v. Wolf, 464 F. Supp. 3d 174, 190 (D.D.C. 2020) 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 34 of 37
28 

(Cooper, J.) (noting the presumption of good faith afforded agency officials). Instead, no one ever 

notified the Court, and CREW’s citizen suit was allowed to proceed on the theory that the 

Commission had not acted at all. The simplest explanation for what would otherwise be a stunning 

failure of candor is that, in May 2018, no one—not even Commissioner Weintraub—believed that 

the situation had changed, and that the agency was now taking some sort of affirmative action that 

she controlled. That theory was invented after the fact in order to aid CREW in mounting this 

blatant collateral attack on the Court’s dismissal of CREW’s citizen suit. The Court should not 

indulge it. 

CONCLUSION 

 For the reasons stated above, the Court should dismiss this case. 

Respectfully submitted, 

By: s/ Stephen J. Obermeier 

Stephen J. Obermeier (D.C. Bar No. 979667) 

Caleb P. Burns (D.C. Bar No. 474923) 

Jeremy J. Broggi (D.C. Bar No. 1191522) 

WILEY REIN LLP 

2050 M Street, NW 

Washington, DC 20036 

(202) 719-7000 

sobermeier@wiley.law 

Dated: January 6, 2023 Counsel for American Action Network

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 35 of 37
1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

AMERICAN ACTION NETWORK, 

 Intervenor-Defendant. 

 Civil Action No. 1:22-cv-03281 (CRC) 

[PROPOSED] ORDER GRANTING 

AMERICAN ACTION NETWORK’S MOTION TO DISMISS 

Upon consideration of American Action Network’s Motion to Dismiss, it is hereby 

ORDERED that the Motion to Dismiss is GRANTED. It is further 

ORDERED that the Complaint is DISMISSED WITH PREJUDICE in its entirety. 

This constitutes a final appealable order. 

SO ORDERED this day of 2023. 

 

 CHRISTOPHER R. COOPER 

 United States District Judge 

 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 36 of 37
2 

LOCAL RULE 7(k) CERTIFICATION: 

NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDER UPON ENTRY 

In accordance with Local Civil Rule 7(k), the following attorneys are entitled to be notified 

of the proposed order’s entry: 

Stuart C. McPhail 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

1331 F Street NW 

Suite 900 

Washington, DC 20004 

Greg J. Mueller 

FEDERAL ELECTION COMMISSION 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Stephen J. Obermeier 

Jeremy J. Broggi 

WILEY REIN LLP 

2050 M Street, NW 

Washington, DC 20036 

(202) 719-7000 

Case 1:22-cv-03281-CRC Document 15 Filed 01/09/23 Page 37 of 37