IN THE

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

(ORAL ARGUMENT NOT YET SCHEDULED)

No. 20-5159

CAMPAIGN LEGAL CENTER,

 Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

 Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

BRIEF OF AMICUS CURIAE

GEO CORRECTIONS HOLDINGS, INC.

IN SUPPORT OF APPELLEE

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjt.law

Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

15405 John Marshall Hwy.

Haymarket, VA 20169

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Amicus Curiae GEO Corrections Holdings, Inc.

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 1 of 34
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

 Pursuant to Circuit Rule 28(a)(1), amicus curiae Geo Corrections Holdings, 

Inc. hereby certifies as follows: 

(A) Parties and Amici 

All parties, intervenors, and amici appearing before the district court and in 

this court are listed in Brief for Appellees the Federal Election Commission. 

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 

26.1, amicus curiae GEO Corrections Holdings, Inc. makes the following 

disclosures: 

GEO Corrections Holdings is a wholly owned subsidiary of the GEO Group, 

Inc. The GEO Group, Inc. is a publicly traded corporation and has no parent 

company. The Vanguard Group and BlackRock Fund Advisors own ten percent 

(10%) or more of The GEO Group, Inc.’s stock. 

(B) Rulings Under Review

References to the ruling at issue appear in the Brief for Appellees the 

Federal Election Commission. 

(C) Related Cases 

Amicus is not aware of any related cases at this time. 

 

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TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i 

TABLE OF CONTENTS .......................................................................................... ii 

TABLE OF AUTHORITIES .................................................................................... iv 

CERTIFICATE OF COUNSEL REGARDING AUTHORITY TO FILE ............ vii 

GLOSSARY ........................................................................................................... viii 

IDENTITY AND INTEREST OF AMICUS CURIAE ............................................. 1 

REQUEST TO PARTICIPATE IN ORAL ARGUMENT ........................................ 2 

SUMMARY OF ARGUMENT ................................................................................. 3 

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

I. APPELLANT LACKS ARTICLE III STANDING. ................................ 3 

A. Overview of FEC Enforcement Process. .......................................... 4 

B. Any Action Brought Under Section 30109(a)(8)(A) Requires 

a Showing of Constitutional Standing. ............................................. 5 

1. Common Cause Controls This Matter. ..................................... 8 

2. American Rivers Did Not Overrule Common Cause and 

the Agency Petition Cases Cited by CLC Are Irrelevant 

Here. ........................................................................................ 11 

C. CLC Has Not Alleged an Informational Injury Sufficient to 

Establish Standing. .......................................................................... 15 

1. CLC Does Not Seek Campaign Finance “Information” 

Described in Akins. ................................................................. 15 

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2. The FEC’s Enforcement Process Documents Described 

by CLC Are Not Required to Be Disclosed by Statute. ......... 20 

CONCLUSION ........................................................................................................ 22 

CERTIFICATE OF COMPLIANCE ....................................................................... 24 

CERTIFICATE OF SERVICE ................................................................................ 25 

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TABLE OF AUTHORITIES 

CASES 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ................................................... 21 

Allen v. Wright, 468 U.S. 737 (1984) ........................................................................ 4 

Alliance for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004) .................. 5, 10 

American Hosp. Ass'n. v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) ......................... 22 

In re American Rivers & Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 

2004) .......................................................................................................... 11, 12 

Campaign Legal Ctr. v. FEC, 2020 U.S. Dist. LEXIS 92402 (D.D.C. May 

26, 2020) (App. at A15) ............................................................................... 5, 11 

Campaign Legal Ctr. v. FEC, 2020 U.S. Dist. LEXIS 98646 (D.D.C. June 4, 

2020) ................................................................................................................ 16 

Citizens for Responsibility & Ethics v. Am. Action Network, 410 F. Supp. 3d 

1 (D.D.C. 2019) ............................................................................................... 16 

Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337 (D.C. 

Cir. 2007) ........................................................................................................... 9 

Citizens for Responsibility & Ethics in Wash. v. FEC, 799 F. Supp. 2d 78 

(D.D.C. 2011) .................................................................................................... 6 

Citizens for Responsibility & Ethics v. FEC, 267 F. Supp. 3d 50 (D.D.C. 

2017) ................................................................................................................ 19 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997)3, 5, 6, 7, 8, 9, 10, 11, 15, 19

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................. 4 

Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) ................................ 4 

FEC v. Akins, 524 U.S. 11 (1998) ............................................. 10, 15, 16, 17, 18, 22 

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FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ........................................................... 4 

Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 2020) ........... 6, 10, 17 

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) ................................. 14 

Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002) .................................................... 14 

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ....6, 7, 9, 10, 11, 16 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................ 4, 7, 8, 13, 14

Massachusetts v. EPA, 549 U.S. 497 (2007) ............................................................. 7 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) ............................................. 11, 15, 19 

Pacific Gas & Elec. Co. v. Federal Power. Comm'n, 506 F.2d 33 (D.C. Cir. 

1974) ................................................................................................................ 22 

Raines v. Byrd, 521 U.S. 811 (1997) ......................................................................... 3 

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ......................................... 3 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ......................................................... 9 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) ....................................................... 9 

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013) ................................................ 19 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) .................................. 17, 18, 19 

Zivotofsky ex rel. Ari Z. v. Sec'y of State, 444 F.3d 614 (D.C. Cir. 2006) ... 12, 13, 14 

STATUTES AND RULES

11 C.F.R. § 111.20 ................................................................................................... 20 

52 U.S.C. § 30109(a) ........................ 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 20, 21 

Fed. R. App. P. 29(a)(4)(E) ........................................................................................ 1 

D.C. Circuit R. 29(b) .................................................................................................. 1 

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OTHER AUTHORITIES 

FEC Statement of Policy, Disclosure of Certain Documents in Enforcement 

and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016) ................................. 21 

FEC Statement of Policy Regarding Placing First General Counsel's Reports 

on the Public Record, 74 Fed. Reg. 66,132 (Dec. 14, 2009) ........................... 21 

 

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CERTIFICATE OF COUNSEL REGARDING AUTHORITY TO FILE 

Pursuant to FRAP 29(a)(2), all parties have consented to the filing of this 

brief. Pursuant to D.C. Circuit Rule 29(d), counsel for amicus curiae GEO 

Corrections Holdings certifies that it is not aware of any other non-government 

amicus briefs addressing the subject matter of this brief. GEO Corrections 

Holdings is the subject of the underlying administrative complaint filed by the 

Campaign Legal Center with the Federal Election Commission. As such, amicus 

curiae is particularly well-suited to provide the Court important context and 

arguments on these subjects, which will assist it in resolving this case.

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GLOSSARY

CLC means the Campaign Legal Center.

FEC means the Federal Election Commission. 

FECA means Federal Election Campaign Act.

GCH means GEO Corrections Holdings, Inc.

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IDENTITY AND INTEREST OF AMICUS CURIAE 

GCH submits this brief in support of Appellee the Federal Election 

Commission.1

GCH has a strong interest in this case as it is the subject of the underlying 

administrative complaint filed with the Federal Election Commission. GCH seeks 

to ensure that all issues raised in this matter receive a full and fair hearing before 

this Court. 

 

 

1

 Pursuant to Fed. R. App. P. 29(a)(4)(E) & D.C. Circuit R. 29(b), amicus curiae

states that no counsel for a party authored this brief in whole or in part, and no 

party or counsel for a party contributed money intended to fund the preparation or 

submission of this brief. No person other than amicus curiae contributed money 

intended to fund the preparation or submission of this brief. 

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REQUEST TO PARTICIPATE IN ORAL ARGUMENT

Amicus hereby requests leave to be heard at oral argument to protect its 

interests as the party whom Appellant’s underlying complaint falsely accused of 

FECA violations. A timely motion to this effect will be filed pursuant to Circuit 

Rule 34(e). 

 

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SUMMARY OF ARGUMENT

The statutory provision of the Federal Election Campaign Act (“FECA”) at 

issue in this matter does not automatically confer standing. Common Cause v. 

FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). Instead, the Campaign Legal Center 

(“CLC”) must, just like all Plaintiffs, demonstrate Article III standing. Id. CLC 

urges this Court to depart from Common Cause and declare that CLC has a 

statutory cause of action under Section 30109(a)(8)(A) because that provision 

“confer[s] rights the deprivation of which constitute[s] an injury sufficient to 

satisfy Article III standing requirements.” Appellant’s Br. at 8. In the alternative, 

CLC seeks to rewrite this Court’s standing jurisprudence by expanding the scope 

of “informational standing” as previously conceived by the Supreme Court and this 

Circuit. There is no basis for CLC’s proposed wholesale revision to this area of 

law, and the Court should affirm the District Court’s ruling. 

ARGUMENT

I. APPELLANT LACKS ARTICLE III STANDING.

“No principle is more fundamental to the judiciary’s proper role in our 

system of government than the constitutional limitation of federal-court 

jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 

(1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)). 

“Article III standing . . . enforces the Constitution’s case-or-controversy 

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requirement.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting 

Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Article III 

standing “is an essential and unchanging part of the case-or-controversy 

requirement . . . .” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992)). Because of this fact, “[a] plaintiff must allege personal injury fairly 

traceable to the defendant's allegedly unlawful conduct [that is] likely to be 

redressed by the requested relief.” Id. (quoting Allen v. Wright, 468 U.S. 737, 751 

(1984)). As the District Court’s ruling affirmed, CLC is unable to show any 

personal injury that is fairly traceable to the FEC. 

A. Overview of FEC Enforcement Process. 

The FECA sets forth two limited situations in which administrative 

complainants may challenge the FEC’s handling of their complaints: 

Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . or by a failure of the Commission to 

act on such complaint during the 120-day period beginning on the 

date the complaint is filed, may file a petition with the United States 

District Court for the District of Columbia.” 

52 U.S.C. § 30109(a)(8)(A) (emphasis added). This 120-day period for a nonaction lawsuit is a jurisdictional threshold before which suit may not be brought, 

and not a timetable within which the Commission must resolve an administrative 

complaint. See FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986) (rejecting 

contention that FECA requires “the Commission to act within 120 days or within 

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an election cycle”). After a petition is filed, “the court may declare that the 

dismissal of the complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 days.” 52 U.S.C. § 

30109(a)(8)(C). If the Commission fails to conform within that time period, “the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.” Id. 

B. Any Action Brought Under Section 30109(a)(8)(A) Requires a 

Showing of Constitutional Standing. 

CLC contends that Section 30109(a)(8)(A) contains two distinct “causes of 

action,” one to challenge agency dismissals and one to challenge agency inaction, 

and that this Court should limit its holding in Common Cause to dismissal actions 

and declare that agency inaction suits are subject to entirely different standards. 

See generally Appellant’s Br. As the district court recognized, however, there is 

no basis for applying two separate standing rules to Section 30109(a)(8)(A), 

depending on the type of challenge brought: “Common Cause did not distinguish 

between challenges to action and challenges to inaction; it stated unambiguously 

that § 30109(a)(8)(A)–which governs both types of challenges–does not confer 

standing.” Campaign Legal Ctr. v. FEC, 2020 U.S. Dist. LEXIS 92402, *3 

(D.D.C. May 26, 2020) (App. at A15). At least two other district court judges in 

this Circuit have reached the same conclusion, and a third assumed that separate 

Article III standing must be demonstrated. See Alliance for Democracy v. FEC, 

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335 F. Supp. 2d 39 (D.D.C. 2004); Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 

(D.D.C. 2003); Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 

2020). 

That Appellant has a procedural right to sue under 52 U.S.C. 

§ 30109(a)(8)(A) does not mean that Appellant has Article III standing to sue. 

This Court previously held that a party filing suit under Section 30109(a)(8)(A) 

must make a separate showing of Article III standing: 

Section [30109](a)(8)(A) does not confer standing; it confers a

right to sue upon parties who otherwise already have 

standing. As in Lujan, absent the ability to demonstrate a “discrete 

injury” flowing from the alleged violation of FECA, Common Cause 

cannot establish standing merely by asserting that the FEC failed to 

process its complaint in accordance with law. To hold otherwise 

would be to recognize a justiciable interest in having the Executive 

Branch act in a lawful manner. This, the Supreme Court held in

Lujan, is not a legally cognizable interest for purposes of standing. 

 

Common Cause, 108 F.3d at 419 (emphasis added); see also Citizens for 

Responsibility & Ethics in Wash. v. FEC, 799 F. Supp. 2d 78, 85 (D.D.C. 2011) 

(“Having the right to file an administrative complaint with the FEC does not 

necessarily give Plaintiffs standing to seek judicial review of the disposition of that 

complaint in this Court.”). 

 CLC, however, argues that it has suffered an “injury in fact” because 

“Congress granted administrative complainants the right to have the FEC act on 

their complaints and authorized suit when the FEC fails to act after a period of 120 

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days.” Appellant’s Br. at 9-10. No court has ever held that an FEC administrative 

complainant has an individualized “right to have the FEC act on their complaint,” 

and in fact, CLC’s position has been repeatedly rejected. See, e.g., Judicial Watch, 

293 F. Supp. 2d at 48 (Plaintiff “believes that the Commission’s delay in acting on 

his administrative complaint is also an injury in fact, separate from informational 

injury. The Court finds no basis in the law for this position.”). This Court has long 

held that a plaintiff who sues under Section 30109(a)(8)(A) must demonstrate an 

“injury in fact” separate and distinct from the statutory “procedural” injury that 

CLC describes. Common Cause, 108 F.3d at 419; see also Judicial Watch, Inc., 

293 F. Supp. 2d at 48. In fact, CLC’s substantive statutory right to sue theory 

would run afoul of Lujan by permitting any administrative complainant to claim 

standing to see that “the Laws be faithfully executed.” See Lujan, 504 U.S. at 557; 

see also Massachusetts v. EPA, 549 U.S. 497, 516-517 (2007) (courts will not 

“entertain citizen suits to vindicate the public’s nonconcrete interest in the proper 

administration of the laws”) (quoting Lujan, 504 U.S. at 581 (1992) (Kennedy, J., 

concurring)). CLC’s alleged basis for Article III standing has been roundly 

rejected by both this Court, Common Cause, 108 F.3d at 419, and the Supreme 

Court, Lujan, 504 U.S. at 573. 

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Therefore, the District Court properly applied binding precedent when 

holding that CLC lacked a “concrete or particularized” injury and therefore lacked 

Article III standing. App. A14-15. 

 1. Common Cause Controls This Matter. 

CLC seeks to relitigate Common Cause and makes exactly the same 

arguments that this Court previously rejected. In Common Cause, plaintiffappellant argued that Section 30109(a)(8)(A) contained: 

[A] statutory promise to the complainant that the FEC [will] act on a 

complaint in a reasonable period of time and [will] do so in a manner 

not contrary to law. When the FEC violates the complainant’s right to 

a prompt and lawful resolution of the complaint, the Commission

deprives the complainant of a statutorily promised benefit that is 

personal to the complainant. 

Common Cause, 108 F.3d at 418 (internal quotations omitted). This Court rejected 

this argument and concluded that “Appellant’s asserted injury parallels the 

‘procedural injury’ the Supreme Court held insufficient in Lujan,” and “[a]s in 

Lujan, absent the ability to demonstrate a ‘discrete injury’ flowing from the alleged 

violation of FECA, Common Cause cannot establish standing merely by asserting 

that the FEC failed to process its complaint in accordance with law.” Id. at 418-19. 

As Common Cause makes clear, Section 30109(a)(8)(A) does not confer 

standing for either a dismissal or an inaction claim. The Common Cause Court

applied the Supreme Court’s decision in Lujan to find the provision did not, in and 

of itself, confer standing. Id. There have been no subsequent developments that 

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suggest the outcome should be different now. See, e.g., Citizens for Responsibility 

& Ethics in Wash. v. FEC, 475 F.3d 337, 340-341 (D.C. Cir. 2007) (“Given the 

precedent established in Common Cause and the lack of any meaningful distinction 

between that case and this one, we must hold that CREW lacks standing.”); see 

also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (“Robins could not, for 

example, allege a bare procedural violation, divorced from any concrete harm, and 

satisfy the injury-in-fact requirement of Article III.”). This Court should decline 

CLC’s invitation to overrule or distinguish Common Cause. 

While arising less frequently than dismissal lawsuits brought under Section 

30109(a)(8)(A), district courts have applied this Court’s Common Cause holding in 

at least four matters involving an administrative complainant’s “inaction” or 

“delay” claim.2

 First, in Judicial Watch, the district court specifically rejected 

plaintiff’s argument “that the Commission’s delay in responding to his claim is, in 

and of itself, an injury in fact,” and required the showing of a separate 

informational injury sufficient for Article III standing purposes. Judicial Watch, 

293 F. Supp. 2d at 48. The court found “that plaintiffs have suffered only 

procedural injury as a result of the Commission’s failure to meet the 120-day 

 

22 In a fifth case, the Fifth Circuit considered an “inaction” or “unreasonable delay” 

claim brought by the subject of an administrative complaint (i.e., the administrative 

respondent). See Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) (dismissed for 

lack of jurisdiction). The Fifth Circuit noted that “we have considerable doubt that 

Stockman has satisfied his burden of demonstrating standing to challenge the 

FEC’s delay” and cited this Court’s decision in Common Cause. Id. at 150-151. 

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deadline” and that plaintiff “has not demonstrated informational injury,” meaning 

the plaintiff “failed to satisfy the Article III standing requirement.” Id. 

Second, in Alliance for Democracy v. FEC, the district court explained that 

“under Article III, it is not enough for Alliance to allege that it was injured because 

the Commission unlawfully delayed the investigation; plaintiffs must show a 

‘discrete injury flowing from’ such alleged delay.” 335 F. Supp. 2d at 48 (quoting 

Common Cause, 108 F.3d at 418). 

Third, in Free Speech for People v. FEC, the district court required the 

plaintiffs to demonstrate Article III standing and found that “[p]laintiff does not 

seek any presently unknown information that is otherwise subject to disclosure 

under FECA,” and plaintiff “therefore lacks standing to sue.” 442 F. Supp. 3d. at 

345. And finally, in the present matter, the district court concluded that Common 

Cause controlled and found that Plaintiffs lacked standing. 

In order to reach the outcome urged by CLC, this Court would not only have 

to overrule its decision in Common Cause, but it would also have to disregard the 

Supreme Court’s decision in FEC v. Akins. Akins was decided one year after 

Common Cause and the Supreme Court’s decision affirmed that Section 

30109(a)(8)(A) lawsuits require the plaintiff to demonstrate Article III standing. 

See FEC v. Akins, 524 U.S. 11, 21 (1998) (finding that the Article III “‘injury in 

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fact’ that respondents have suffered consists of their inability to obtain 

information”). 

2. American Rivers Did Not Overrule Common Cause and the 

Agency Petition Cases Cited by CLC Are Irrelevant Here. 

Common Cause has not been overruled. Before the District Court, CLC 

argued that Common Cause no longer controls because it was effectively overruled 

or superseded by this Court’s decision in In re American Rivers & Idaho Rivers 

United, 372 F.3d 413 (D.C. Cir. 2004). The District Court rejected this argument, 

noting that “American Rivers, in which Article III standing was uncontested, 

provides no basis for such a departure” from Common Cause and Judicial Watch. 

2020 U.S. Dist. LEXIS 92402 at *4 n.1 (App. A15). Indeed, this Court relied upon 

and applied Common Cause’s holding in Section 30109(a)(8)(A) cases that arose 

well after American Rivers. See, e.g., Nader v. FEC, 725 F.3d 226, 228 (D.C. Cir. 

2013). 

American Rivers was not a standing case; it involved an agency petition, a 

motion for a writ of mandamus — “an extraordinary remedy reserved for 

extraordinary circumstances” — and the reviewability of agency action under the 

APA. 372 F.3d at 418. Specifically, the Federal Energy Regulatory Commission 

(“FERC”) failed to act on a petition for more than six years and then argued “that it 

is not obligated to address a petition filed under one of its own regulations 

allowing requests for discretionary action.” Id. This Court found FERC’s 

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argument to be “without merit” and determined that “FERC is obligated under the 

APA to respond to the 1997 petition,” and made clear that “we are reviewing 

[FERC’s] failure to give [petitioners] any answer for more than six years.” Id. at 

418, 419. The present matter does not involve a petition for rulemaking, nor is it 

governed by the APA’s review provisions. The district court correctly found that 

“52 U.S.C. § 30109(a)(8)(A) provides the exclusive mechanism for judicial 

review, thus precluding review under the APA.” A15-16. Whether the APA 

obligates FERC to respond to a petition within six years is of no relevance to the 

question of standing under Section 30109(a)(8)(A). 

Now, CLC seeks to analogize FECA’s administrative complainant 

provisions to the Freedom of Information Act (FOIA) whereby any person “whose 

request for specific information has been denied has standing to bring an action.” 

Appellant’s Br. at 14 (quoting Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 

614, 617 (D.C. Cir. 2006)). CLC claims that the Supreme Court and this Court 

have held that both FECA and FOIA “grant[] an entitlement to information the 

deprivation of which constitutes an injury sufficient to satisfy Article III standing.” 

Id. According to CLC, the “information” that the FEC produces in the course of 

considering an administrative complaint (i.e., the materials that document the 

FEC’s process of enforcing the law) is no different than the information sought by 

FOIA requestors. Id. at 9. CLC’s analogy is inapt. 

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As this Court described FOIA in Zivotofsky, “[a]nyone whose request for 

specific information has been denied has standing to bring an action.” Zivotofsky, 

444 F.3d at 617. An administrative complainant under FECA does not file a 

“request for specific information.” See id. Rather, under Section 30109(a)(8)(A), a 

complainant urges the FEC to exercise its enforcement powers. This Court 

recognized in Zivotofsky that Lujan held that citizen-suit provisions “could not 

bestow standing on plaintiffs who claimed no ‘particularized’ injury, but only a 

generalized interest shared by all citizens in the proper administration of the law.” 

Id. at 618. 

The Zivotofsky matter, as cited by CLC in support of its position, involved a

question of whether an individual born in the city of Jerusalem had a right to have 

“Israel” printed as their place of birth on a passport. Id. at 615. This Court held 

that Congress had created an “individual right” to have Israel listed on a personal 

passport and that standing existed because the violation of that individual right 

affected the plaintiff in a personal and individual way. Id. at 618-19. Here, 

however, the FEC’s consideration of CLC’s administrative complaint does not 

affect CLC in an individualized manner; the timely enforcement of the law by the 

FEC is a generalized interest that everyone shares. CLC is in no way uniquely 

positioned. As this Court has previously held, CLC may bring suit under Section 

30109(a)(8)(A) if it has suffered an actual injury sufficient to establish Article III 

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standing. No such injury exists here, and Zivotofsky does nothing to change that 

fact. 

This Court has held that “[p]articipation in agency proceedings is alone 

insufficient to satisfy judicial standing requirements. Mere interest as an advocacy 

group is not enough. The fact that Congress may have given all interested parties 

the right to petition the agency does not in turn ‘automatically’ confer Article III 

standing when that right is deprived.” Gettman v. DEA, 290 F.3d 430, 433 (D.C. 

Cir. 2002) (internal citations omitted). Furthermore, “it is not at all anomalous that 

Congress could permit them as ‘interested parties’ . . . to participate in agency 

proceedings, and yet they be unable to seek review in the federal courts.” Id. at 

434. For example, this Court held that “interested person” plaintiffs lack 

informational standing where they seek to enforce “deadline requirements,” but 

may demonstrate standing to enforce “disclosure requirements.” Friends of 

Animals v. Jewell, 828 F.3d 989, 994 (D.C. Cir. 2016); see also Lujan, 504 U.S. at 

573-74 (“We have consistently held that a plaintiff raising only a generally 

available grievance about government – claiming only harm to his and every 

citizen’s interest in proper application of the Constitution and laws, and seeking 

relief that no more directly and tangibly benefits him than it does the public at 

large – does not state an Article III case or controversy.”). 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 23 of 34
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Therefore, because Common Cause—as well as general standing 

principles—still control, this Court should dismiss CLC’s suit for lack of standing. 

C. CLC Has Not Alleged an Informational Injury Sufficient to 

Establish Standing. 

In Akins, the Supreme Court explained that, in a suit under Section 

30109(a)(8)(A), “a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to 

obtain information which must be publicly disclosed pursuant to a statute.” Akins, 

524 U.S. at 21; see also Nader, 725 F.3d at 230 (“Akins ... establish[es] that 

litigants who claim a right to information allege the type of concrete injury needed 

for standing to bring a FECA claim if the disclosure they seek is related to their 

informed participation in the political process”). For two distinct reasons, CLC has 

not been deprived of any such information. 

1. CLC Does Not Seek Campaign Finance “Information” 

Described in Akins. 

CLC claims that it has been deprived of “information” about the FEC’s 

enforcement process. In Akins, however, the “information” to which the Supreme 

Court referred was campaign finance related information that FECA requires 

campaign and election participants to disclose. The Supreme Court explained: 

The “injury in fact” that respondents have suffered consists of their 

inability to obtain information – lists of AIPAC donors (who are, 

according to AIPAC, its members), and campaign-related 

contributions and expenditures – that, on respondents’ view of the 

law, the statute requires that AIPAC make public. 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 24 of 34
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Akins, 524 U.S. at 21 (emphasis added). An “injury in fact” exists only when the 

complainant is unable to obtain information that FECA requires be disclosed by the 

target of the administrative complaint (i.e., the administrative respondent), not 

documents produced by the FEC in the course of enforcing the law. See Judicial 

Watch, 180 F.3d at 278 (finding lack of standing when “[n]owhere in its 

administrative or civil complaint did Judicial Watch mention disclosure 

requirements or suggest that it desired documents that the alleged violators were 

required to disclose”) (emphasis added); Campaign Legal Ctr. v. FEC, 2020 U.S. 

Dist. LEXIS 98646, *16 (D.D.C. June 4, 2020) (considering what additional 

campaign finance disclosures the administrative respondent would have to make if 

the complainant were successful). 

In cases following Akins, courts have recognized that the plaintiff in a 

Section 30109(a)(8)(A) lawsuit may have standing if the underlying matter is one 

in which FEC action may lead to new public disclosures that FECA requires the 

administrative respondent to make. See, e.g., Citizens for Responsibility & Ethics 

v. Am. Action Network, 410 F. Supp. 3d 1, 12 (D.D.C. 2019) (“The Supreme Court 

has long recognized that FECA creates an informational right—the right to know 

who is spending money to influence elections, how much they are spending, and 

when they are spending it.”). However, no court has ever construed the 

“information” referred to in Akins to include the FEC’s internal process 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 25 of 34
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documents. Here, CLC contends that it is deprived of “information” such as “the 

results of any votes taken by the Commissioners,” “portions of Commission’s 

investigative and enforcement materials,” “reports by the Office of General 

Counsel,” “the analysis and conclusions of the Commission’s enforcement staff,” 

and “information discovered by the FEC through its investigation of the matter.” 

Appellant’s Br. at 10, 28-29. These documents and materials are the byproduct of 

the FEC’s internal enforcement process, and they memorialize the agency’s 

determination whether a person’s conduct violates the FECA and warrants penalty. 

This Court has already held that “the government's alleged failure to ‘disclose’ that 

certain conduct is illegal by itself does not give rise to a constitutionally cognizable 

injury.” Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001). 

In the present matter, “under the Akins test, [A]ppellants have failed to show 

either that they are directly being deprived of any information or that the legal 

ruling they seek might lead to additional factual information.” Id.; see also Free 

Speech for People, 442 F. Supp. 3d at 345 (“Plaintiff does not seek any presently 

unknown information that is otherwise subject to disclosure under FECA” and 

“therefore lacks standing to sue”). In its administrative complaint, CLC alleged 

that (i) GCH was a federal contractor, as defined in FECA, and (ii) GCH made four 

contributions to independent expenditure-only committees (i.e., Super PACs) 

during 2015-2016. CLC has knowledge of these four contributions because they 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 26 of 34
18 

were disclosed on publicly available financial disclosure reports filed with the FEC 

by the recipient political committees. CLC contends that FECA prohibits a federal 

contractor from making contributions to federal political committees that make 

only independent expenditures and asks the FEC to find that GCH violated 

FECA’s contribution restrictions, impose sanctions, enjoin GCH from future 

violations, and otherwise ensure compliance with FECA.3

 

Even if the FEC were to fully agree with CLC’s contentions and enforce the 

law exactly as CLC asks, no additional contribution, spending, or donor 

disclosures would result. The allegedly impermissible contributions at issue have 

been publicly reported in full, and CLC does not allege any “disclosure” violation. 

There is no additional information to which CLC is entitled under FECA that is 

required to be disclosed by GCH or the recipients of its contributions, no matter the 

outcome. Accordingly, CLC suffers no informational injury under Akins. 

In cases involving administrative complaints that make allegations of 

prohibited contribution, courts have repeatedly emphasized that plaintiffs seeking 

mere determinations of legality lack standing to maintain their claims. See, e.g., 

Wertheimer, 268 F.3d at 1075 (holding that plaintiffs lacked standing to seek a 

legal determination that certain transactions constitute coordinated expenditures); 

 

3

 In responses filed with the FEC, GCH demonstrates that it is not a federal 

contractor and has not violated FECA. The merits of the administrative complaint, 

however, have no bearing on the question of whether CLC has standing to sue in 

this matter. 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 27 of 34
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Citizens for Responsibility & Ethics v. FEC, 267 F. Supp. 3d 50, 54 (D.D.C. 2017) 

(holding that an advocacy group lacked standing to challenge FEC dismissal of 

alleged violation of FECA’s “prohibition on pass-through contributions” because 

“nothing in the statute or regulatory regime” would have required the alleged 

violator to disclose information); Vroom v. FEC, 951 F. Supp. 2d 175, 178-79 

(D.D.C. 2013) (holding that plaintiff lacked standing to seek a legal determination 

that certain political committees were affiliated). 

Thus, rather than seeking campaign finance information that has not been 

disclosed, CLC seeks only agency-generated enforcement materials that document 

“a legal conclusion that carries certain law enforcement consequences” for others, 

which this Court has already held does not create standing. Wertheimer, 268 F.3d 

at 1075; see also Common Cause, 108 F.3d at 418 (“Nothing in FECA requires 

that information concerning a violation of the Act as such be disclosed to the 

public.”). As was the case in Common Cause, what CLC “desires is for the 

Commission to ‘get the bad guys,’ rather than disclose information,” and CLC “has 

no standing to sue for such relief.” Common Cause, 108 F.3d at 418; see also 

Nader, 725 F.3d at 230 (“Nader does not seek information to facilitate his 

informed participation in the political process. Instead, he seeks to force the FEC 

to ‘get the bad guys’”); Wertheimer, 268 F.3d at 1074 (“[T]he government’s 

alleged failure to ‘disclose’ that certain conduct is illegal by itself does not give 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 28 of 34
20 

rise to a constitutionally cognizable injury.”); CREW, 267 F. Supp. 3d at 55 (“[A]n 

interest in knowing or publicizing that the law was violated is akin to claiming 

injury to the interest in seeing the law obeyed, which simply does not present an 

Article III case or controversy”). As this Court and district courts in this Circuit 

have repeatedly held, CLC’s interest in the FEC enforcing the law against another 

party is insufficient to establish standing. 

2. The FEC’s Enforcement Process Documents Described by 

CLC Are Not Required to Be Disclosed by Statute. 

CLC is also incorrect in claiming that “Congress, by statute, and the FEC, by 

regulation, have granted administrative complainants a right to receive” these 

enforcement process materials “upon resolution of an administrative complaint.” 

Appellant’s Br. at 13; see also id. at 26. The provisions CLC cites establish only

that the FEC, upon closing the matter, must make public conciliation agreements 

entered into with administrative respondents, and, in cases where the agency finds 

the respondent has not violated the law, its “determination” or “action and the basis 

therefor.” 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20. The enforcement 

process documents which CLC claims it is entitled to receive are not required to be 

disclosed by statute or FEC regulation. Rather, nearly all of the enforcement 

process material placed on the public record by the FEC is done so voluntarily as a 

matter of agency policy. 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 29 of 34
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Since this Court’s invalidation of the FEC’s main enforcement process 

disclosure regulation in 2003, the agency’s enforcement process disclosure practice 

has been governed by policy statements. See AFL-CIO v. FEC, 333 F.3d 168, 179 

(D.C. Cir. 2003) (“[T]he Commission could tailor its disclosure policy to avoid 

unnecessary First Amendment infringements, or, as the concurrence maintains, it 

could decline to release any materials other than those expressly required 

by section [30109](a)”); FEC Statement of Policy, Disclosure of Certain 

Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 

2016). 

The categories of materials that the FEC makes public after an enforcement 

matter is closed are limited by statute and have changed over the years. Current 

public disclosure policy goes well beyond what FECA mandates. For example, the 

FEC has not always made public all briefs prepared by agency attorneys in the 

General Counsel’s Office. See FEC Statement of Policy Regarding Placing First 

General Counsel’s Reports on the Public Record, 74 Fed. Reg. 66,132 (Dec. 14, 

2009) (“In the interest of promoting transparency, the Commission is resuming the 

practice of placing all First General Counsel’s Reports on the public record, 

whether or not the recommendations in these First General Counsel’s Reports are 

adopted by the Commission.”). The agency documents known as “First General 

Counsel’s Reports” contain “the analysis and conclusions of the Commission’s 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 30 of 34
22 

enforcement staff” and “staff recommendations” to which CLC claims it is 

entitled. Appellant’s Br. at 28-29. However, neither FECA nor FOIA require 

enforcement staff analysis, recommendations, and legal advice to the 

Commissioners be made public. CLC cannot claim a statutory right to 

“information” that is not required to be disclosed by a statute. 

The FEC’s policy of disclosing more than FECA requires “does not establish 

a ‘binding norm’” and is “not finally determinative of the issues or rights to which 

it is addressed.” Pacific Gas & Elec. Co. v. Federal Power. Comm’n, 506 F.2d 33, 

38 (D.C. Cir. 1974). Rather, a statement of policy merely “allow[s] agencies to 

announce their ‘tentative intentions for the future’ ... without binding themselves.” 

American Hosp. Ass’n. v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987). The 

enforcement process materials that CLC describes are not “information” “which 

must be publicly disclosed pursuant to a statute.” Akins, 524 U.S. at 21 (emphasis 

added). 

CONCLUSION

For the aforementioned reasons, this Court should affirm the judgment of the 

district court. 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 31 of 34
23 

Respectfully submitted, 

/s/Jason Torchinsky______ 

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjt.law

Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 

15405 John Marshall Hwy. 

Haymarket, VA 20169

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Amicus Curiae GEO Corrections Holdings, Inc.

 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 32 of 34
24 

CERTIFICATE OF COMPLIANCE WITH WORD LENGTH AND 

TYPEFACE REQUIREMENTS 

 Pursuant to Federal Rule of Appellate Procedure 32(a)(7) and D.C. Circuit 

Rule 32(a)(1), the undersigned hereby certifies that this brief complies with the 

type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B). 

 1. Exclusive of the exempted portions of the brief, as provided in Federal 

Rule of Appellate Procedure 32(a)(7)(B), the brief contains 4,923 words. 

 2. The brief has been prepared in proportionally spaced typeface using 

Microsoft Word 2016 in 14 point Times New Roman font. As permitted by Federal 

Rule of Appellate Procedure 32(a)(7)(C), the undersigned has relied upon the word 

count feature of this word processing system in preparing this certificate. 

 Date: October 21, 2020 

 /s/Jason Torchinsky 

 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 33 of 34
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CERTIFICATE OF SERVICE 

 I hereby certify that on the date indicated below the foregoing was filed 

electronically through the Court’s CM/ECF system. Notice of this filing will be 

sent to all parties by operation of the Court’s electronic filing system. 

 Date: October 21, 2020 

 /s/Jason Torchinsky 

USCA Case #20-5159 Document #1867510 Filed: 10/21/2020 Page 34 of 34