ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 17, 2018 

NO. 18-5099 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

JOHN DOE 1 AND JOHN DOE 2, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from a Final Judgment of the 

U.S. District Court for the District of Columbia, 

(Honorable Amy Berman Jackson) 

REPLY BRIEF OF PLAINTIFFS-APPELLANTS 

PUBLIC COPY—SEALED MATERIAL DELETED 

William W. Taylor, III 

Carlos Angulo 

Dermot Lynch 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW 

Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

cangulo@zuckerman.com 

dlynch@zuckerman.com 

Counsel for Plaintiff-Appellant 

John Doe 1

Michael Dry 

John P. Elwood 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

jelwood@velaw.com 

Counsel for Plaintiff-Appellant 

John Doe 2

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii 

GLOSSARY ............................................................................................................. vi 

INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................... 1 

ARGUMENT ............................................................................................................. 3 

I. DISCLOSURE OF PLAINTIFFS’ IDENTITIES IS ARBITRARY 

AND CAPRICIOUS AND CONTRARY TO FECA. .................................... 3 

A. Disclosure Conflicts with FECA’s Plain Text. ..................................... 3 

B. The FEC’s Regulations Do Not Authorize Disclosure. ......................10 

II. DISCLOSURE OF PLAINTIFFS’ IDENTITIES IS PROHIBITED 

UNDER THE FEC’S FOIA REGULATIONS AND POLICY. ...................14 

A. Plaintiffs Properly State a “Reverse-FOIA” Claim Under the APA. ..14 

1. FEC Regulations Preclude Disclosure of FOIA-Exempt 

Materials. ...................................................................................15 

2. Disclosure Here Would Be An Unexplained Break from 

Historic Practice. .......................................................................17 

B. The FEC’s Planned Disclosure Is Manifestly Unreasonable. .............18 

III. THE FEC’S INSISTENCE ON NAMING AND SHAMING 

ALLEGED PARTICIPANTS IN THE POLITICAL PROCESS 

OFFENDS THE FIRST AMENDMENT. .....................................................22 

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

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TABLE OF AUTHORITIES 

CASES

Abbott Labs. v. Young, 

920 F.2d 984 (D.C. Cir. 1990) ............................................................................... 9 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) .................................... 6, 16, 18, 19, 22, 23, 24, 25 

Albright v. U.S., 

631 F.2d 915 (D.C. Cir. 1980) .............................................................................25 

AT&T v. FCC, 

582 F.3d 490 (3d Cir. 2009) .................................................................................16 

Baltimore Sun v. U.S. Marshals Serv., 

131 F. Supp. 2d 725 (D. Md. 2001) .....................................................................20 

Buckley v. Valeo, 

424 U.S. 1 (1976) .................................................................................... 24, 25, 26 

Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984) ...........................................................................................3, 9 

Chrysler Corp. v. Brown, 

441 U.S. 281 (1979) ...................................................................................... 14, 15 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

__ F.3d __, No. 17-5049, 2018 WL 2993249 (D.C. Cir. June 15, 2018) ............19 

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 

746 F.3d 1082 (D.C. Cir. 2014) ...........................................................................20 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ............................................................................... 8 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ............................................................................. 8 

Doe v. Reed, 

561 U.S. 186 (2010) .............................................................................................26 

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FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) .............................................................................25 

Fox v. Clinton, 

684 F.3d 67 (D.C. Cir. 2012) ...............................................................................18 

FTC v. Tarriff, 

584 F.3d 1088 (D.C. Cir. 2009) ............................................................................. 7 

Huerta v. Ducote, 

792 F.3d 144 (D.C. Cir. 2015) .............................................................................14 

Jones v. Unknown Agents of FEC, 

613 F.2d 864 (D.C. Cir. 1979) .............................................................................25 

Jurewicz v. Dep’t of Agric., 

741 F.3d 1326 (D.C. Cir. 2014) ...........................................................................19 

Kaiser Found. Hosps. v. Sebelius, 

708 F.3d 226 (D.C. Cir. 2013) .............................................................................14 

Nat’l Envtl. Dev. Ass’ns’ Clean Air Project v. EPA, 

752 F.3d 999 (D.C. Cir. 2014) .............................................................................15 

Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 

71 F.3d 885 (D.C. Cir. 1995) ...........................................................................5, 17 

NLRB v. Local Union No. 638, 

429 U.S. 507 (1977) .............................................................................................21 

Paul v. Davis, 

424 U.S. 693 (1976) .............................................................................................24 

Public Citizen, Inc. v. FERC, 

839 F.3d 1165 (D.C. Cir. 2016) ............................................................................. 8 

Ry. Labor Execs.’ Ass’n v. Nat’l Mediation Bd., 

29 F.3d 655 (D.C. Cir. 1994) ................................................................................. 6 

SafeCard Services, Inc. v. SEC, 

926 F.2d 1197 (D.C. Cir. 1991) ........................................................ 14, 17, 18, 20 

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Sherley v. Sebelius, 

644 F.3d 388 (D.C. Cir. 2011) ............................................................................... 7 

Strickland v. Comm’r, Maine Dep’t of Human Servs., 

48 F.3d 12 (1st Cir. 1995) ...................................................................................... 9 

U.S. Dep’t of Justice v. Reporters Comm., 

489 U.S. 749 (1989) ............................................................................................... 5 

U.S. Dep’t of Justice v. Tax Analysts, 

492 U.S. 136 (1989) ............................................................................................... 3 

Utility Air Regulatory Grp. v. EPA, 

134 S. Ct. 2427 (2014) ........................................................................................... 9 

W. Deptford Energy, LLC v. FERC., 

 766 F.3d 10 (D.C. Cir. 2014) ..............................................................................18 

Washington Post Co. v. United States Department of Justice,

863 F.2d 96 (D.C. Cir. 1988) ...............................................................................22 

STATUTES

5 U.S.C. § 552(a)(2) .................................................................................................16 

5 U.S.C. § 552(b)(7)(C) ............................................................................................. 5 

52 U.S.C. § 30101 ...................................................................................................... 1 

52 U.S.C. § 30109 ..................................................................................... 7, 8, 16, 17 

52 U.S.C. § 30109(a)(12)(A) ..................................................................................... 4 

52 U.S.C. § 30109(a)(4)(A)(ii) .................................................................................. 7 

52 U.S.C. § 30109(a)(4)(B) ....................................................................................... 6 

52 U.S.C. § 30109(a)(4)(B)(i) .................................................................................... 3 

52 U.S.C. § 30109(a)(4)(B)(ii) ......................................................................... 4, 6, 8 

52 U.S.C. § 30109(a)(8)(A) ....................................................................................... 8 

52 U.S.C. § 30116(a)(8) ...........................................................................................23 

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52 U.S.C. 30109(a)(11) .............................................................................................. 7 

52 U.S.C. 30109(a)(2) ................................................................................................ 7 

52 U.S.C. 30109(a)(4)(A)(i) ...................................................................................... 7 

52 U.S.C. 30109(a)(4)(A)(ii) ..................................................................................... 7 

52 U.S.C. 30109(a)(4)(C)(i)(II) ................................................................................. 7 

52 U.S.C. 30109(a)(4)(C)(ii)-(iii) .............................................................................. 7 

52 U.S.C. 30109(a)(5)(C) .......................................................................................... 7 

52 U.S.C. 30109(a)(6)(C) .......................................................................................... 7 

OTHER AUTHORITIES

Black’s Law Dictionary 544 (10th ed. 2014) ............................................................. 7 

OGC Enforcement Manual 32 § 3.2.3 (June 2013) .................................................11 

Webster’s Third New Int’l Dictionary 616 (3d ed. 1971) .......................................... 7 

REGULATIONS

11 C.F.R. § 111.17(b) ..............................................................................................12 

11 C.F.R. § 111.3(a) .................................................................................................10 

11 C.F.R. § 111.9(b) ................................................................................................12 

11 C.F.R. 111.20 ......................................................................................................13 

11 C.F.R. 111.20(a) ............................................................................... 10, 12, 13, 14 

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GLOSSARY 

APA Administrative Procedure Act 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

FOIA Freedom of Information Act 

MUR Matter Under Review 

OGC Office of the General Counsel of the Federal Election 

Commission 

PAC Political Action Committee 

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INTRODUCTION AND SUMMARY OF THE ARGUMENT 

If the Federal Election Commission is right, it can brush with the taint of 

illegality any person it deems – in its unreviewable discretion – “integral” to its 

decision-making regarding whether someone else violated the law. Opp. 16. It can 

do so by bypassing the basic processes – including notice and a chance to be heard 

– normally accorded those accused of civil and criminal violations. It can thereby 

name and shame that person for serious offenses (here, money laundering) without 

ever bothering to make a finding that the person actually engaged in wrongdoing. 

That cannot be the law. The FEC’s Opposition can only maintain that it is by 

ignoring or misconstruing the regulatory, statutory, and constitutional provisions 

that constrain the Commission’s actions and, in this case, prohibit its disclosure of 

Plaintiffs’ names. The Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30101 

et seq., and its implementing regulations, the FEC regulations and implementing 

policy, and the First Amendment each independently prohibit disclosure. 

First, FECA was enacted against a backdrop presumption that investigatory 

materials are not disclosed, yet Congress authorized their disclosure in only two 

circumstances, neither present here. The FEC’s regulations authorizing disclosure 

make clear that they apply only when formal adversarial proceedings are terminated 

by majority vote, and the Commissioners’ contemporaneous statements make plain 

that they voted not to even commence proceedings. FEC regulations only authorize 

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disclosing “the basis” for Commission actions; that Plaintiffs’ names were in no way 

“the basis” for the FEC’s actions is confirmed by the fact that the conciliation 

agreement (which “set forth the basis of the Commission’s final determination in 

MUR 6920,” Opp. 35) never mentions Plaintiffs’ names. 

Second, the FEC has a longstanding policy of not releasing investigatory 

materials that are exempt from FOIA, consistent with Commission rules requiring 

nondisclosure. The FEC’s unreasoned departure from those rules and its historic 

practice is the very definition of action that is arbitrary and capricious or contrary to 

law. 

Third, Plaintiffs have a compelling interest in nondisclosure of FEC 

investigative files that allegedly document political associations, given that the 

Commission never concluded that Plaintiffs were the source of the funds or made a 

reportable “contribution” under FECA, and because the disclosure implicates them 

in unproven allegations that they are money launderers who “got away with” 

violating the law. JA215. 

This Court should reverse. 

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ARGUMENT 

I. Disclosure of Plaintiffs’ Identities Is Arbitrary and Capricious and 

Contrary to FECA.

A. Disclosure Conflicts with FECA’s Plain Text. 

The FEC contends that Congress “explicitly left a gap for the agency to fill,” 

Opp. 20 (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-44 (1984)), 

arguing that the absence of an explicit prohibition on disclosing investigative 

information represents “Congressional silence in FECA” about prohibiting 

disclosures, id. at 18, leaving it within the FEC’s discretion to decide what 

information to publish and what to keep confidential. The Commission argues that 

conclusion is supported by FECA provisions “specifically barring” other 

disclosures, Opp. 20, together with what it characterizes as Congress’s “general 

philosophy of full agency disclosure” embodied in another piece of legislation 

entirely – the Freedom of Information Act, see Opp. 19 (quoting U.S. Dep’t of 

Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)). That is incorrect. Congress has 

spoken clearly and directly on the subject of disclosure of investigative information 

by authorizing only two kinds of disclosures and leaving no gap for the FEC to fill. 

Br. 32. 

The two provisions the FEC cites fall far short of supporting the conclusion 

that “when Congress intended to prohibit the FEC from disclosing” information, it 

“did so explicitly.” Opp. 19. First, § 30109(a)(4)(B)(i), for example, is simply a 

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limitation on the disclosure explicitly authorized by its neighboring subsection, 

§ 30109(a)(4)(B)(ii), which allows the FEC to disclose two – and only two – items: 

(1) “any conciliation agreement signed by both the Commission and the respondent” 

and (2) FEC “determination[s] that a person has not violated [election laws].” 

Subsection (i) simply underscores the narrowness of that authorization, providing 

that “[n]o action by the Commission or any person, and no information derived, in 

connection with any conciliation attempt . . . may be made public . . . without the 

written consent of the respondent.” That limitation, pertaining to a neighboring 

disclosure provision, falls short of suggesting Congress intended to allow all other 

disclosures. 

Nor does § 30109(a)(12)(A) support the FEC’s argument. That provision does 

not just “prohibit the FEC from disclosing certain information.” Opp. 19. Rather, it 

prohibits “any person” from making public “[a]ny notification or investigation made 

under this section” without the permission of the person who is the subject of the 

notification or investigation. 52 U.S.C. § 30109(a)(12)(A) (emphasis added). The 

section’s narrow focus thus does not support the proposition that Congress specified 

all instances in which the FEC would be prohibited from making disclosures. While 

§ 30109(a)(12)(A) prohibits the Commission from making disclosures in the 

investigatory context, that is understandable to avoid giving rise by negative 

implication to the conclusion that such disclosures are permitted. 

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Nor can it be inferred from FOIA that Congress intended investigatory 

materials to be freely disclosable. Congress broadly exempted from disclosure 

“records or information compiled for law enforcement purposes” whose release 

“could reasonably be expected to constitute an unwarranted invasion of personal 

privacy.” 5 U.S.C. § 552(b)(7)(C). It has long been understood that “disclosure of 

the identities of private citizens mentioned in law enforcement files constitutes an 

unwarranted invasion of privacy and is thus exempt” from disclosure. Nation 

Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995). 

Thus, far from considering the statute against a “philosophy of full agency 

disclosure,” Opp. 19, the more appropriate background rule is that FOIA generally 

does not authorize disclosure of investigative material. The FEC fails to 

acknowledge that “disclosure of records regarding private citizens” compiled for 

law-enforcement investigations, “identifiable by name, is not what the framers of 

the FOIA had in mind.” U.S. Dep’t of Justice v. Reporters Comm., 489 U.S. 749, 

765 (1989). “It is reasonable to presume that Congress legislated with an 

understanding of this . . . point of view.” Id. at 767. Nothing in the text of FECA – 

which authorizes disclosure in only two circumstances, irrelevant here – reflects an 

intent to depart from that background understanding of nondisclosure. See Br. 34 

(collecting authorities). Courts cannot “presume a delegation of power absent an 

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express withholding of power.” Ry. Labor Execs.’ Ass’n v. Nat’l Mediation Bd., 29 

F.3d 655, 671 (D.C. Cir. 1994) (en banc). 

The FEC’s contention that “this Court confirmed in AFL-CIO [v. FEC] that 

the FEC may make disclosures of exactly the type at issue here,” Opp. 20, does not 

survive even cursory review. As explained in Plaintiffs’ brief, Br. 34 n.8, that 

passage addressed a First Amendment argument and simply explained that “deterring 

future violations and promoting Commission accountability” were governmental 

interests that “may well justify releasing more information than” the disclosures 

authorized by § 30109(a)(4)(B). AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 

2003). The decision invalidated an FEC regulation authorizing broad disclosure of 

investigative materials, id. at 170; it did not address, or decide, whether the FEC has 

authority to read the statute to permit more disclosure than is specifically authorized. 

The FEC further contends that disclosure of Plaintiffs’ names is authorized by 

FECA’s language providing that “[i]f the Commission makes a determination that a 

person has not violated this Act . . . the Commission shall make public such 

determination.” 52 U.S.C. § 30109(a)(4)(B)(ii). The FEC contends that language is 

ambiguous, encompassing both situations in which the Commission simply fails to 

act, as well as entirely different agency actions, such as dismissing “case[s] for a 

variety of reasons, such as prosecutorial discretion.” Opp. 23-24. 

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There is no basis for concluding that the phrase “The Commission makes a 

determination” encompasses mere failures to act. As the District Court explained, 

“the record reflects that the Commission did not make any ‘determination’ that 

plaintiffs had not violated [FECA]; it simply did not vote to find reason to believe 

that they had.” JA266-67. “[W]ords of statutes or regulations must be given 

their ordinary, contemporary, common meaning.” FTC v. Tarriff, 584 F.3d 1088, 

1090 (D.C. Cir. 2009) (internal quotation marks and citation omitted). In the legal 

context, a “determination” is “[t]he act of deciding something officially; esp. a final 

decision by . . . [an] administrative agency.” Black’s Law Dictionary 544 (10th ed. 

2014); Webster’s Third New Int’l Dictionary 616 (3d ed. 1971) (“resolving of a 

question by argument or reasoning”). Tellingly, every other appearance of a form of 

the word “determination” in § 30109 involves formal Commission action – typically 

by majority vote.1 Indeed, the immediately preceding subparagraph uses the word 

“determination” to mean a Commission decision “by an affirmative vote of 4 of its 

members.” 52 U.S.C. § 30109(a)(4)(A)(ii), (i). The established “presumption that a 

given term is used to mean the same thing throughout a statute” is especially 

compelling where, as here, the word is given that meaning in the very same 

subsection. Cf. Sherley v. Sebelius, 644 F.3d 388, 402 (D.C. Cir. 2011) (Henderson, 

1 See 52 U.S.C. § 30109(a)(2); § 30109(a)(4)(A)(i); § 30109(a)(4)(A)(ii); 

§ 30109(a)(4)(C)(i)(II); § 30109(a)(4)(C)(ii)-(iii); § 30109(a)(5)(C); 

§ 30109(a)(6)(C); § 30109(a)(11). 

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J., dissenting) (presumption “at its most vigorous when a term is repeated within a 

given sentence”). That conclusion is reinforced by the fact the statute specifies it is 

“the Commission” that acts, and the verb “makes” suggests purposeful, concerted 

action. 

While the FEC argues that a “determination” encompasses deadlocks, see

Opp. 23-24, its authorities do not hold that failure to decide constitutes a 

“determination” under § 30109, much less under its disclosure provisions. Instead, 

they stand for the very different proposition that a Commission deadlock is subject 

to judicial review.2 Those cases undercut the FEC’s argument. Rather than relying 

on any ambiguity in the word “determination,” those cases relied on a specific 

provision authorizing judicial review for those aggrieved by an order “dismissing a 

complaint . . . or by a failure of the Commission to act.” Public Citizen, Inc. v. FERC, 

839 F.3d 1165, 1170 (D.C. Cir. 2016) (quoting 52 U.S.C. § 30109(a)(8)(A)); 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) 

(same). 

More outlandish still is the FEC’s argument, Opp. 24, that 

§ 30109(a)(4)(B)(ii) authorizes the Commission to disclose a host of other 

2

 Indeed, this Court has emphasized the narrowness of its decisions, writing that 

FECA “clearly requires that for any official Commission decision there must be at 

least a 4-2 majority vote.” Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. 

Cir. 1988). 

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determinations and case dispositions having nothing to do with whether a “person 

has not violated” the law. The Commission’s argument is devoid of reasoning; it 

simply notes that “[t]he Commission may not proceed for a variety of reasons” 

besides determining that a person did not violate the law, and therefore posits that 

the law must authorize such disclosures. Id. But the FEC identifies nothing 

ambiguous about the phrase “a person has not violated [federal election law].” And 

“an agency may not rewrite clear statutory terms to suit its own sense of how the 

statute should operate.” Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 

(2014). 

Put simply, FECA’s use of “determination” is not ambiguous and does not 

even colorably encompass the FEC’s failure to find Plaintiffs violated FECA. This 

Court should not countenance the FEC’s attempts to manufacture ambiguity, as 

“Chevron does not suggest that courts are to search statutes, overturning linguistic 

rocks and brush, in the hope of discovering some arguable ambiguity . . . .” Abbott 

Labs. v. Young, 920 F.2d 984, 994–95 (D.C. Cir. 1990) (Edwards, J., dissenting). To 

the contrary, “it is only when a court cannot discern” congressional intent using 

ordinary tools of statutory construction that “the Chevron inquiry moves into its 

second stage.” Strickland v. Comm’r, Maine Dep’t of Human Servs., 48 F.3d 12, 17 

(1st Cir. 1995). 

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B. The FEC’s Regulations Do Not Authorize Disclosure. 

Plaintiffs’ opening brief identified “at least three reasons” – each independent 

– that “no reasonable reading of § 111.20(a) could authorize the disclosure of 

Plaintiffs’ names.” Br. 36. Although the FEC offers a welter of arguments, none 

survives scrutiny. 

1. As Plaintiffs’ argued, § 111.20(a) only applies when the “proceedings” 

the Commission “otherwise terminates” are formal adversarial proceedings, and the 

regulation does not authorize disclosure because the FEC never initiated such 

proceedings. See Br. 36. The FEC argues it actually initiated such proceedings, 

because Plaintiffs’ case was an internally-generated matter which, it claims, did not 

require adversary process before a reason-to-believe vote, and the inconclusive vote 

terminated Plaintiffs’ “proceedings.” Opp. 37-38. The FEC’s argument is hard to 

square with the regulations themselves, which provide that “internally-generated” 

matters are contemplated for “information ascertained by the Commission in the 

normal course of carrying out its supervisory responsibilities,” Opp. 37 (quoting 11 

C.F.R. § 111.3(a)) (emphasis added), and this information was not obtained in that 

way (i.e., by examining regularly filed reports), but through investigation of a 

complaint-generated MUR. The Office of General Counsel’s (“OGC”) own 

enforcement manual explicitly says that if parties “are not named in the complaint 

or submission, but other sources make it apparent that they should be named as 

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respondents, [OGC] will send a pre-RTB letter that encloses the complaint or 

submission and details the respondent’s potential liability.” OGC Enforcement 

Manual 32 § 3.2.3 (June 2013). 

But the Court need not take Plaintiffs’ word for it that the FEC’s current 

position is a post-hoc rationalization; it simply has to review how the Commissioners 

characterized matters. Commissioners Hunter and Goodman make clear that the 

Commission did not contemplate nonadversarial proceedings; their 

contemporaneous Statement of Reasons makes clear that the Commission “voted to 

proceed to enforce the Act against . . . ACU, Now or Never PAC, and GI, LLC – 

but” because of the inconclusive vote did not “add the fourth organization, [John 

Doe 2], as a Respondent.” JA207 [SOR1] (emphasis added). The FEC is simply 

wrong that Plaintiffs were already subject to “proceedings.” Had the Commissioners 

commenced proceedings, the Commission would have “provided [a John Doe] 

notice of the Complaint and notice that it had been substituted as a named 

Respondent, and afforded . . . an opportunity to respond,” including a statutory 15-

day-period to prepare a response to the General Counsel’s recommendation, and 

thirty days for conciliation efforts. Id. at 209 & n.10; id. at 210. The fact Plaintiffs 

never received that process represents compelling proof the inconclusive vote kept 

the Commission from ever commencing “proceedings” against Plaintiffs as part of 

MUR 6920. This understanding is confirmed by the fact the FEC never “advise[d] 

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. . . [the Does] by letter” of the vote, as would be required had the Commission 

actually “terminate[d] its proceedings.” 11 C.F.R. § 111.9(b); see Br. 38. 

2. Because each of the other actions whose disclosure § 111.20(a) 

authorizes all require the affirmative vote of at least four Commissioners, its 

“otherwise terminates” language can only be read to apply to situations where the 

Commission acts by majority vote, not when it fails to proceed through inaction. 

That reading is confirmed by a neighboring provision addressing notice 

requirements that applies when “the Commission finds no probable cause to believe 

or otherwise orders a termination of Commission proceedings.” 11 C.F.R. 

§ 111.17(b) (emphasis added). The FEC barely addresses the issue, saying in a 

footnote only that this “reasoning has been squarely rejected by this Court.” Opp. 38 

n.9. This Court has done nothing of the sort; as noted above, the FEC relies on cases 

addressing whether deadlocked matters are subject to judicial review. Reading the 

disclosure provision not to extend to identifying information about those who are the 

subject of inconclusive votes protects the privacy interests of those investigated for 

violations who are neither found to have committed a violation nor have been 

affirmatively cleared of wrongdoing; for those charged or cleared, there is both a 

strong interest in letting the public know about the Commission’s actions and a 

reduced legitimate expectation of privacy in the information. But persons who are 

the subject of inconclusive votes have a justifiable interest in nondisclosure of 

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information implicating them in an investigation when the Commission has not 

concluded they have done anything wrong, and the Commission has a diminished 

accountability interest when it has not acted. While those aggrieved can sue to 

challenge inaction, under the Commission’s own regulations, they are not entitled to 

release of the names of those about whom the Commission has reached no 

conclusions. 

3. There is no basis for reading § 111.20 to authorize disclosure of 

Plaintiffs’ names in connection with MUR 6920. As noted in Plaintiffs’ brief, Br. 

39, § 111.20(a) authorizes the Commission, if it finds no reason to believe or no 

probable cause or “otherwise terminates its proceedings,” only to “make public such 

action and the basis therefor.” 11 C.F.R. § 111.20(a). The FEC makes little effort to 

argue that the regulatory text itself permits disclosing the Plaintiffs’ identities, and 

never attempts to establish that Plaintiffs’ names were part of “the basis” of the 

FEC’s action in MUR 6920. Indeed, the FEC states that “the conciliation agreement 

set forth the basis of the Commission’s final determination in MUR 6920.” Opp. 35. 

Because it is undisputed that plaintiffs were “not named in the conciliation 

agreement,” id. at 36, the FEC can hardly maintain that Plaintiffs’ names were “the 

basis” for the FEC’s action. 

The best the FEC can manage is stating that “disclosure of these individuals’ 

roles . . . furthers the public’s knowledge of, and ability to assess the agency’s actions 

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14 

taken, on MUR 6920,” id. at 35, because Plaintiffs allegedly played a role “in the 

factual circumstances” underlying MUR 6920, id. at 36. Because that expansive 

interpretation far exceeds § 111.20(a)’s targeted provision for disclosure of the 

agency’s termination of proceedings and “basis therefor,” that “atextual 

interpretation[] . . . deserve[s] no judicial deference.” Huerta v. Ducote, 792 F.3d 

144, 154 (D.C. Cir. 2015); Kaiser Found. Hosps. v. Sebelius, 708 F.3d 226, 231 

(D.C. Cir. 2013) (similar). 

II. Disclosure of Plaintiffs’ Identities Is Prohibited Under the FEC’s FOIA 

Regulations and Policy. 

Disclosure of Plaintiffs’ identities also would violate the Administrative 

Procedure Act (“APA”) (Br. 20-30). Because the FEC has adopted FOIA 

exemptions as mandatory bars to disclosure in its regulations and Disclosure Policy, 

because the Commission has historically withheld FOIA-exempt investigative 

materials from disclosure, and because SafeCard Services, Inc. v. SEC, 926 F.2d 

1197, 1205-06 (D.C. Cir. 1991), determined that the balancing of public and private 

interests always favors non-disclosure, the disclosure of Plaintiffs’ identities violates 

the APA. 

A. Plaintiffs Properly State a “Reverse-FOIA” Claim Under the APA. 

The FEC first observes, Opp. 38-40, that under Chrysler Corp. v. Brown, 441 

U.S. 281 (1979), FOIA exemptions are not themselves mandatory bars to disclosure, 

id. at 293, and allow agencies to voluntarily withhold materials from disclosure, id.

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15 

at 292-94. While true, that is irrelevant. Plaintiffs are not pursuing a freestanding 

claim under FOIA, but a “claim under the APA for agency action that is arbitrary 

and capricious or contrary to law.” Br. 23. Chrysler reaffirms an agency “decision 

to disclose [information] is reviewable agency action” under the APA. 441 U.S. at 

318. As plaintiffs have explained, the FEC’s action is “arbitrary and capricious or 

contrary to law” because the Commission’s action contravenes its own regulations, 

inexplicably departs from historical practice, and strikes a balance that conflicts with 

this Court’s precedents. 

1. FEC Regulations Preclude Disclosure of FOIA-Exempt 

Materials. 

The FEC regulation governing “[a]vailability of records,” 11 C.F.R. § 5.4, 

expressly provides for disclosure of “non-exempt . . . investigatory materials,” id.

§ 5.4(a)(4) (emphasis added). This regulation, on its face, therefore contemplates 

non-disclosure of exempt investigatory materials. Accord 11 C.F.R. § 4.5(a)(7)(iii) 

(no request shall be denied under FOIA unless record contains, inter alia, 

information subject to Exemption (7)(C)). The FEC’s regulations establish that the 

FEC will not disclose information exempted under FOIA. Because the FEC’s action 

“fails to comply with its own regulations,” it must “be set aside as arbitrary and 

capricious.” Nat’l Envtl. Dev. Ass’ns’ Clean Air Project v. EPA, 

752 F.3d 999, 1009 (D.C. Cir. 2014); AT&T v. FCC, 582 F.3d 490, 495 n.2 (3d Cir. 

2009) (recognizing agency can make FOIA exemption mandatory through 

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16 

regulation, which makes disclosure of FOIA-exempt materials APA violation), rev’d 

on other grounds, 562 U.S. 397 (2011). 

The FEC’s efforts to dismiss the impact of its own regulations, Opp. 41, fail. 

First, it asserts that § 5.4(a)(4) is entitled to no weight because this Court found the 

agency’s implementation of it insufficiently protective of First Amendment interests 

in AFL-CIO, 333 F.3d at 179. The regulation, however, has not been repealed. And 

it cannot be that AFL-CIO’s directive that the FEC increase protections against 

unwarranted disclosures reduced protections found on the face of the FEC’s 

regulations. Lastly, while the FEC points to the current disclosure policy adopted in 

response to AFL-CIO, that very policy “does not alter any existing regulation or 

policy requiring or permitting the Commission to redact documents.” Disclosure of 

Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702, 50,704 (Aug. 2, 2016). 

Second, the FEC claims § 5.4(a)(4) protects only “non-exempt 52 U.S.C. 

§ 30109 investigatory materials,” Opp. 41, but does not use the “non-exempt” 

modifier for “Opinions of Commissioners” or “General Counsel Reports.” But while 

the FEC asserts FOIA has a “mandatory disclosure requirement” for opinions, Opp. 

43, it concedes that FOIA permits redaction of “identifying details” from opinions 

to prevent an “unwarranted invasion of personal privacy,” Opp. 44 (quoting 5 U.S.C. 

§ 552(a)(2)) – which this Court has held results “categorically” from disclosing 

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17 

identifying information in law-enforcement files. See Nation Magazine, 71 F.3d at 

896 (“SafeCard directs . . . redact[ion]”). Moreover, the FEC identifies no basis for 

concluding that identifying information ceases to be “52 U.S.C. § 30109 

investigatory material[]” the minute it is incorporated in a General Counsel report or 

Commissioner statement. Otherwise, protections against disclosure of exempted 

materials would be easily circumvented. 

2. Disclosure Here Would Be An Unexplained Break from 

Historic Practice. 

The FEC’s Disclosure Policy confirms that its historic – and current – practice 

is not to disclose FOIA-exempted materials. The Policy, which the FEC concedes 

“govern[s]” its affirmative disclosure obligations, Opp. 41, makes clear the 

Commission’s consistent historical practice has been to disclose certain records 

related to a case “minus those materials exempt from disclosure under the FECA or 

under [FOIA].” 81 Fed. Reg. at 50,702 (citing 11 C.F.R. § 5.4(a)(4)). The FEC took 

pains to explain that the Policy in no way “alter[ed] any existing regulation or policy 

requiring or permitting the Commission to redact documents, including those 

covered by this policy, to comply with,” inter alia, FOIA. Id. at 50,704. Though 

Plaintiffs highlighted that the FEC’s proposed disclosure inexplicably departs from 

that longstanding practice, see Br. 23, the FEC fails to justify its departure. 

“‘[G]loss[ing] over or swerv[ing] from prior precedents without discussion,’” is “the 

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18 

very essence of unreasoned and arbitrary decisionmaking.” W. Deptford Energy, 

LLC v. FERC., 766 F.3d 10, 22 (D.C. Cir. 2014) (alterations in original). 

B. The FEC’s Planned Disclosure Is Manifestly Unreasonable. 

The FEC’s disclosure of Plaintiffs’ identities would violate the APA for the 

additional reason that the FEC cannot provide any “coherent explanation for [this] 

decision” and is therefore “arbitrary and capricious for want of reasoned 

decisionmaking.” Fox v. Clinton, 684 F.3d 67, 69 (D.C. Cir. 2012). The Disclosure 

Policy, as mandated by AFL-CIO, requires it to balance “consideration of the 

Commission’s interest in promoting its own accountability and in deterring future 

violations” against “consideration of the respondent’s interest in the privacy of 

association and belief guaranteed by the First Amendment.” 81 Fed. Reg. at 50,703. 

However, where, as here, the information to be disclosed is the identity of 

persons named in FEC enforcement files, this Court has already decided in cases 

such as SafeCard that the balance conclusively tips in favor of the “substantial” 

privacy interest of targets and witnesses in law enforcement investigations, while the 

Commission’s interest in disclosure is “insubstantial”; accordingly, disclosure is 

“categorical[ly]” barred absent “compelling evidence” (which does not exist here) 

that disclosure would confirm or refute allegations of illegal agency activity. 

SafeCard, 926 F.2d at 1205-06. This assessment applies no less to the FEC’s 

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19 

Disclosure Policy, which expressly adopts and adheres to FOIA principles, than to 

determinations under FOIA itself. 

The FEC’s “conclusory [and] unsupported” statements fall far short of what 

is necessary to support the FEC’s policy. Jurewicz v. Dep’t of Agric., 741 F.3d 1326, 

1331 (D.C. Cir. 2014). To begin with, the FEC overstates its interests, repeating ad 

nauseum that disclosure supports interests in “accountability and deterrence.” Opp. 

53; accord id. at 55, 56, 57. But the Commission offers no explanation of the 

deterrence interest served when it never found Plaintiffs engaged in any wrongdoing. 

See Br. 54 (noting AFL-CIO, 333 F.3d at 178, questioned “how releasing 

investigatory files will deter future violations in cases where . . . the respondents 

have been cleared of wrongdoing”). 

The FEC’s stated “accountability” interest is wildly overbroad; its claim that 

“the public must have access to the identities of persons” “to confirm the FEC’s 

nonpartisan enforcement of FECA,” Opp. 29, would justify disclosing the name of 

every person even tangentially involved in any investigation, to confirm that the 

Commissioners did not favor them in enforcement decisions.3 In the past, this Court 

has not permitted those seeking disclosure of identifying information to invoke 

3

 To the extent the FEC asserts that its judicial review provision supports its 

accountability interest, Opp. 27-29, that interest is not applicable here as the FEC 

concedes that such review is not available with respect to Plaintiffs. Opp. 27 n.6; see 

Citizens for Responsibility & Ethics in Wash. v. FEC, __ F.3d __, No. 17-5049, 2018 

WL 2993249, at *5 (D.C. Cir. June 15, 2018). 

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20 

accountability interests in the absence of compelling evidence to assume improper 

favoritism. SafeCard, 926 F.3d at 1206 (exception to categorical rule where 

disclosure necessary to address “compelling evidence” of illegal activity). The vast 

majority of the cases the FEC cites, Opp. at 30-31, involve the very different 

situation where individuals affirmatively attempted to influence government action, 

rather than simply being the subjects of investigation. The FEC’s own authorities 

say that the privacy interests of those who “voluntarily choose” to interface with the 

government “differ[] substantially from” those who became involved “in law 

enforcement investigations due to forces beyond their control.” Baltimore Sun v. 

U.S. Marshals Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001). In the sole case the 

FEC cites involving the subject of an investigation, the subject himself had already 

publicly disclosed the fact of the investigation, and this Court nevertheless held that 

it was appropriate to redact “the names and identifying information of private 

citizens mentioned in law enforcement files.” Citizens for Responsibility & Ethics in 

Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1091-92, 1094 (D.C. Cir. 2014). 

The Commission’s attempt to minimize Plaintiffs’ privacy interests is 

likewise wanting, foreclosed by SafeCard’s unambiguous determination that 

disclosure of the very information at issue here – identifying information in law 

enforcement files – implicates “substantial” privacy interests for both the Trust and 

Trustee. The FEC’s principal response with respect to the Trust is not to dispute the 

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21 

legal validity of its arguments, but to state that it has not introduced evidence to 

demonstrate “that disclosing John Doe 2’s name would cause ‘a substantial risk of 

identifying its trustee.’” Opp. 46. But given how utterly dismissive the FEC and 

District Court were of the idea that disclosure of a Trust’s name could implicate any

privacy interests, which precluded Plaintiffs from presenting facts before the 

Commission and District Court as to this connection, Plaintiffs should be allowed 

the opportunity to present evidence under a legal rule that recognizes the privacy 

interests of persons who might be implicated in disclosing the Trust’s name. Cf. 

NLRB v. Local Union No. 638, 429 U.S. 507, 522 n.9 (1977) (“When an 

administrative agency has made an error of law, the duty of the Court is to correct 

the error of law . . . , and, after doing so to remand the case to the (agency) so as to 

afford it the opportunity of examining the evidence and finding the facts . . . .” 

(internal quotation marks omitted)). 

More baseless still is the FEC’s effort to characterize the Trustee’s identity –

quintessential personal information – as insubstantial because it is mere 

“[i]nformation relating to business judgments and relationships.” Opp. 47. It is 

nothing of the sort. Information revealing that a person has been identified in a law 

enforcement investigation does not become less sensitive or damaging simply 

because the individual was acting as the agent of another person (or company). 

Indeed, the very case the Commission relies on, Washington Post Co. v. United 

USCA Case #18-5099 Document #1738741 Filed: 07/02/2018 Page 28 of 38
22 

States Department of Justice, in discussing the privacy interests of company 

employees, wrote that “the protection accorded reputation would generally shield 

material when disclosure would show that an individual was the target of a law 

enforcement investigation.” 863 F.2d 96, 101 (D.C. Cir. 1988). The notion that the 

Trustee’s privacy interests are diminished because he was acting as the agent for 

another, Opp. 48-49, if anything, supports the conclusion that the FEC’s interests in 

discussing a mere “agent” could fully be met by referring to Doe 1 as “the Trustee” 

or pseudonymously. 

III. The FEC’s Insistence on Naming and Shaming Alleged Participants in 

the Political Process Offends the First Amendment. 

The District Court’s order must be reversed because the First Amendment 

interest Plaintiffs assert is no different than the one this Court recognized in AFLCIO: the right not to be identified in connection with the disclosure of the FEC’s file 

involving its investigation into protected First Amendment activity where there has 

been no finding of any FECA violation. That privacy interest is especially acute 

where, as here, an FEC Commissioner has publicly alleged Plaintiffs engaged in 

unlawful conduct, specifically that “these guys laundered their millions thru 4 orgs” 

and “got away with [it].” JA215. The FEC’s intended disclosure of Plaintiffs’ 

identities not only exceeds its lawful authority; its efforts to name and shame 

Plaintiffs in connection with alleged political activity contravene vital First 

Amendment interests. Like the District Court, the FEC tries to portray these 

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23 

fundamental interests as a supposed “right []to make an anonymous political 

contribution.”4 Opp. 51. Plaintiffs have never asserted any such right.5 Because the 

FEC both failed to determine that Plaintiffs were the “original source” of the funds, 

and failed to determine whether any such transfer constituted a reportable event, 

Plaintiffs are situated no differently than the challengers in AFL-CIO. This Court 

recognized in AFL-CIO that the First Amendment is implicated when the FEC seeks 

to identify persons and disclose alleged political activity, because such disclosure 

4

 Amicus makes the same error. Much of amicus’s brief merely rehashes points 

already raised by the FEC. But see Cir. R. 29(a). Amicus’s only other point stems 

from a faulty legal premise: the entity that transferred funds to Government Integrity, 

LLC was required to be reported to the FEC, even if that entity was a mere conduit. 

The sole authority amicus cites for this proposition is the instructions to FEC Form 

3X. Amicus Br. 4 n.2. Even if the instructions for a form can create legal obligations 

in addition to those imposed by statute and regulation (and amicus cites no authority 

supporting this dubious proposition), the portion of the form amicus cites pertains to 

“earmarked contributions.” Tellingly, amicus fails to cite the section of FECA and 

the regulation that govern earmarking, because these provisions are clear that 

earmarking rules only apply to contributions to authorized candidate committees, 

not Super PACs. See 52 U.S.C. § 30116(a)(8); 11 C.F.R. § 110.6; First General 

Counsel’s Report at 6 n.20, MUR 6930 (Michel) (Nov. 19, 2015), 

https://tinyurl.com/y997rc9a (recognizing that “neither the earmarking provision of 

the Act nor the Commission’s implementing regulation reaches contributions made 

to independent-expenditure-only political committees,” i.e., Super PACs). 

Accordingly, there is no provision in FECA or the FEC’s regulations that requires 

reporting a mere conduit, and the entire legal premise of amicus’s argument (which 

notably does not apply to the Trustee) is baseless. 

5

OCVGTKCN WPFGT UGCN FGNGVGF

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24 

chills the political participation of those named, who were not found to have 

committed any FECA violation. 333 F.3d at 176-78. This is precisely the right at 

issue here: the FEC seeks to disclose Plaintiffs’ identities in order to reveal their 

alleged involvement in what the FEC acknowledges was political activity,6 without 

any finding that FECA would have required Plaintiffs to be identified or that 

Plaintiffs had violated the law. Thus, as in AFL-CIO, the disclosure here implicates 

Plaintiffs’ right to privacy of political association and belief, which is protected by 

the First Amendment.

The FEC is simply incorrect in apparently assuming that the First Amendment 

only protects disclosure where “political giving is not at issue.” Opp. 51. Political 

giving is at issue. The entire point of the FEC’s intended disclosure is so it can make 

public the allegation that Plaintiffs were involved or participated in a contribution, 

even though it has not found that Plaintiffs themselves were “contributors” within 

the meaning of FECA. 

Plaintiffs do not assert some “generalized constitutional right to informational 

privacy.” Opp. 51. Plaintiffs invoke the very same “privacy of association and 

belief” interest that was at issue in AFL-CIO. And far from being “tenuous at best,” 

id. at 50, the Supreme Court recognized in Buckley v. Valeo that “compelled 

6 Because Plaintiffs’ alleged conduct is unquestionably protected by the First 

Amendment, Paul v. Davis, 424 U.S. 693 (1976) – a case involving disclosure of 

unprotected activity (shoplifting) – is entirely inapposite.

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25 

disclosure, in itself, can seriously infringe on privacy of association and belief 

guaranteed by the First Amendment.” 424 U.S. 1, 64 (1976) (per curiam). The 

Supreme Court articulated this principle with respect to protected political activity 

generally, including contributions and expenditures. Id.; cf. FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981) (“The subject matter 

which the FEC oversees . . . relates to the behavior of individuals and groups only 

insofar as they act, speak and associate for political purposes.”) (emphasis omitted); 

Albright v. U.S., 631 F.2d 915, 919 (D.C. Cir. 1980) (“the penumbra of privacy can 

be invaded, under certain circumstances, by the mere inquiry of government into an 

individual’s exercise of First Amendment rights”); Jones v. Unknown Agents of 

FEC, 613 F.2d 864, 874 (D.C. Cir. 1979) (“compelled disclosure of an individual’s 

affiliation with an organization may, standing alone, constitute a serious intrusion 

on the first amendment right to privacy of association”). As these cases recognize, 

Buckley and its progeny stand for the proposition that intruding upon the core interest 

in privacy of political belief and association triggers exacting First Amendment 

scrutiny.7 See Br. 46; accord Opp. 50. 

7

 Plaintiffs need not demonstrate harassment from disclosure of their identities in 

order to require the FEC to articulate a sufficient justification to overcome their First 

Amendment rights any more than the persons in AFL-CIO did. The chilling effect 

on political participation resulting from the FEC’s compelled disclosure is sufficient. 

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26 

The parties agree: the FEC must demonstrate a “‘substantial relation’ 

between” its accountability and deterrence interests “and the information . . . to be 

disclosed.” Buckley, 424 U.S. at 64; see Opp. 50 (citing Doe v. Reed, 561 U.S. 186, 

196 (2010)). As discussed above, disclosing Plaintiffs’ names does nothing to further 

the FEC’s interest in its accountability. Nor can it advance any legitimate interest in 

deterring conduct the FEC never found to be wrongful. 

The FEC argues that disclosure is necessary to “provid[e] the regulated 

community with a full picture of the actions that led to” the conciliation agreement 

in MUR 6920. Opp. 56. However, the Commission has never explained why 

disclosure of Plaintiffs’ identities is necessary to provide “a complete picture of the 

actions and relationships” in MUR 6920, id., when simply identifying Plaintiffs as 

“the Trust” and “Trustee” provides “a full picture of the actions” and gives the 

regulated community the information it needs to conform its conduct to FECA’s 

requirements.8 In the absence of any such relation, let alone a substantial relation, 

the FEC’s asserted deterrence interest is plainly insufficient. 

The FEC tries to minimize Plaintiffs’ interest in nondisclosure by 

downplaying the risk of harassment, blandly describing the Commissioner’s views 

8

 For this reason, the FEC cannot rely on its assertion that its Disclosure Policy 

requires disclosure of documents that played a critical role in the resolution of a 

matter. Opp. 50. Plaintiffs have never asserted that the FEC is required to withhold 

any documents, only that, as required by the Disclosure Policy, it redact them to 

accommodate Plaintiffs’ First Amendment rights. 

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27 

as stating “that appellants appeared to have violated FECA.” Opp. 54. It is telling 

that the FEC’s refuses to acknowledge the inflammatory rhetoric the Commissioner 

actually used and sent to her many thousands of followers, who redistributed it more 

than seven hundred times: Plaintiffs not only “laundered their millions thru 4 orgs” 

and “got away with [it],” but “STILL [are] suing @FEC to censor our reports.” 

JA215. The FEC does not deny that, in the absence of any finding of wrongdoing, 

Plaintiffs have been accused by a government official responsible for regulating 

political activity of being money launderers who got away with violating the law. 

The FEC now seeks to ensure that two parties against which it never commenced 

adversary proceedings, and which it never found to have engaged in wrongdoing, 

are identified as money launderers. That is the Commission’s so-called “deterrence” 

interest: a warning to citizens who are considering participating in the political 

process that they can be publicly labeled as criminals in the absence of any actual 

finding of wrongdoing, and without ever being given notice or an opportunity to be 

heard. This cannot be a sufficient interest to overcome the First Amendment rights 

Plaintiffs assert. 

The FEC’s insistence on disclosing Plaintiffs’ identities, ostensibly to deter 

persons from engaging in political activity the FEC never found violated FECA, can 

only be seen as a punitive measure. The FEC’s assertion of its interests must be 

viewed as an attempt to salvage an admittedly “irregular” enforcement process, 

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28 

JA207 n.2, which calls into question how substantial its asserted interests are. The 

FEC should not be permitted to accomplish through disclosures, tweets, and 

statements what it chose not to do through the congressionally-mandated 

enforcement process. If the FEC wishes to tar Plaintiffs with the brush of illegality, 

it should have completed that process, which was entirely within the FEC’s control 

given that two and a half years passed from the time the complaint was filed to its 

vote in MUR 6920. 

CONCLUSION 

For the reasons stated above, Plaintiffs respectfully assert that this Court 

should reverse the judgment of the District Court. 

Respectfully Submitted, 

/s/ William W. Taylor, III 

William W. Taylor, III 

Carlos Angulo 

Dermot Lynch 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 

wtaylor@zuckerman.com 

dlynch@zuckerman.com 

Counsel for Plaintiff-Appellant John Doe 1

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29 

/s/ Michael Dry 

Michael Dry 

John P. Elwood 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

jelwood@velaw.com 

Counsel for Plaintiff-Appellant John Doe 2

USCA Case #18-5099 Document #1738741 Filed: 07/02/2018 Page 36 of 38
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF 

APPELLATE PROCEDURE 32(a) 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 6,494 words, excluding 

the parts of the brief exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

/s/ William W. Taylor, III 

Counsel for John Doe 1 

/s/ Michael Dry 

Counsel for John Doe 2 

USCA Case #18-5099 Document #1738741 Filed: 07/02/2018 Page 37 of 38
CERTIFICATE OF SERVICE 

Pursuant to D.C. Circuit Local Rule 25(c), I hereby certify that on this 2nd 

day of July, 2018, I electronically filed the foregoing Reply Brief of PlaintiffsAppellants with the Court by using the CM/ECF system. All parties to the case have 

been served through the CM/ECF system. 

s/ William W. Taylor, III 

Counsel for John Doe 1 

/s/ Michael Dry 

Counsel for John Doe 2 

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