Case 1:22-cv-03281-CRC Document 18 Filed 02/10/23 Page 1 of 5 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

) 

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

) 

v. ) 

) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

) 

Defendant, ) 

)

 and ) 

) 

AMERICAN ACTION NETWORK, ) 

) 

Intervenor-Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S REPLY IN 

SUPPORT OF ITS MOTION TO DISMISS 

The Federal Election Commission (“Commission” or “FEC”) demonstrated in its 

Motion to Dismiss (Docket No. 12) that a remand to the agency, under 52 U.S.C 

§ 30109(a)(8)(C), would serve no discernible interest and that the futility doctrine supports 

avoiding a third round of administrative proceedings. In its Opposition (Docket No. 16), 

plaintiff argues the merits of the administrative matter and argues that a remand would provide 

further opportunity for Commission review. (Opp. at 15-19.) But plaintiff fails to grapple with 

statements by three Commissioners who have indicated they will not vote to revisit the merits of 

votes that took place more than four years ago. (Id.) In this long-pending matter, where there is 

an ample record of the views of a sufficient number of decision makers to control the outcome, 

the FEC has properly invoked the futility doctrine. The FEC’s motion to dismiss should be 

granted. 
Case 1:22-cv-03281-CRC Document 18 Filed 02/10/23 Page 2 of 5 

ARGUMENT 

The Commission’s opening brief explained that a remand in this case would serve no 

purpose because a sufficient number of Commissioners to prevent further agency enforcement 

steps has indicated they do not plan to revisit the merits of this case. In response, CREW 

primarily argues that, were this Court to remand to the Commission and the Commission again 

decline to find reason to believe, “that would merely demonstrate a failure to conform.” (Opp. at 

16.) That argument ignores the long line of cases establishing that administrative agencies in 

general, and the Commission in particular, are entitled to “reach the same result for a different 

reason.” FEC v. Akins, 524 U.S. 11, 25 (1998); see also Nat’l Treasury Emp. Union v. Fed. 

Labor Relations Auth., 30 F.3d 1510, 1514 (D.C. Cir. 1994) (“[W]e frequently remand matters to 

agencies while leaving open the possibility that the agencies can reach exactly the same result as 

long as they rely on the correct view of a law that they previously misinterpreted, or as long as 

they explain themselves better or develop better evidence for their position.”). 

That is precisely what happened after this Court’s original remand order in CREW I. The 

Commission dismissed again in a decision that was “free of the legal errors identified in this 

Court’s” remand order. Mem. Op. & Order at 5, CREW v. FEC, No. 19-cv-1419 (CRC) (Docket 

No. 74) (Apr. 6, 2017). This Court correctly rejected CREW’s argument that the Commission 

had failed to conform to the remand order, and as a result no private right to suit attached at that 

point. Id. CREW points to this Court’s second remand to the FEC to assert that a failure to find 

reason to believe demonstrates a failure to conform (Opp. at 16), but there the Commission took 

no public action on the remand at all (See Compl. ¶ 52). Here, however, a sufficient number of 

Commissioners have explained in writing precisely their approach to this matter. CREW is 

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therefore incorrect to assert that any failure to find reason to believe on any remand would 

automatically result in it gaining a private right to sue. (See Opp. at 16-18.) 

CREW’s other arguments against futility similarly misinterpret relevant case law. 

CREW argues that the Supreme Court’s conclusion in Akins contradicts the FEC’s position here 

(Opp. at 15), but that decision involved an administrative complainant’s Article III standing to 

seek judicial review, which the Commission has not here challenged. There, the Court 

concluded that an administrative complainant’s injury was traceable to the Commission’s 

dismissal decision even though it was “possible” for the Commission to reach the same result for 

a different reason because the Court could not “know that the FEC would have exercised its 

prosecutorial discretion in this way.” Akins, 524 U.S. at 25. While the Akins Court could only 

guess at what the Commission might do on a remand based on argument from counsel, there is 

no need for similar speculation here. This Court already knows the views of a sufficient number 

of Commissioners to control the agency’s consideration of this matter because those 

Commissioners have themselves explained their thinking on the record. 

CREW claims a lack of on-point authority for the FEC’s position in this case, but 

concedes that futility may properly be invoked where the agency decision makers “provided an 

adequate alternative lawful basis for its actions.” (Opp. at 17.) That is precisely what has 

occurred here. The other authority cited by the FEC illustrates the well-established doctrine in a 

range of factual contexts. (See Mot. at 17 (citing Nat’l Parks Conservation Ass’n v. United 

States, 177 F. Supp. 3d 1, 35-36 n.10 (D.D.C. 2016) (matter pending more than six years); NLRB 

v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (action agency would take on remand 

already clear); Keats v. Sebelius, No. 13-1524, 2019 WL 1778047, at *7 (D.D.C. Apr. 23, 2019) 

(action on remand preordained).) 

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CREW also argues that the decision in FEC v. Legi-Tech, 75 F.3d 704, 706 (D.C. Cir. 

1996) does not support the FEC’s motion to dismiss because the ratified administrative decision 

in that case that authorized the enforcement action there “could not be reexamined.” (Opp. at 

18.) Plaintiff’s claim is at odds with the court’s analysis in Legi-Tech, where the court reasoned 

that “forcing the Commission to start at the beginning of the administrative process, given 

human nature, promises no more detached and ‘pure’ consideration of the merits of the case than 

the Commission’s ratification decision” to bring suit. Id. at 709. The court’s rationale was not 

rooted in a conclusion that suit was legally required, rather it was rooted in its conclusion that a 

Commission that authorized suit, then ratified that decision a second time, was unlikely to reach 

a different conclusion in its consideration of the merits if that matter was once again back before 

it on remand. That is also the case here. This Court should reach the same conclusion as the 

court in Legi-Tech: credit the explanations of Commissioners in the record and not require a 

third round of agency review with no practical chance of agency enforcement. 

Nor does CREW’s assertion that the FEC has “abdicated any attempt to apply the law to 

AAN” (Opp. at 19) suggest that a remand is appropriate here. It is true that agency exercises of 

prosecutorial discretion may be reviewed if the “agency has consciously and expressly adopted a 

general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” 

Heckler v. Chaney, 470 U.S. 821, 883 n.4 (1985) (internal quotation marks omitted). But CREW 

fails to establish how an agency could abdicate its general statutory responsibilities in the context 

of a single enforcement matter. And in any event, the D.C. Circuit has observed that “the 

Commission routinely enforces the election law violations alleged in CREW’s administrative 

complaint,” including FECA’s political committee provisions. CREW v. FEC, 892 F.3d 434, 

440 n.9 (D.C. Cir. 2018). 

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CONCLUSION 

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

to state a claim on which relief can be granted. 

 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 

February 10, 2023 

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