Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 1 of 46 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

HERITAGE ACTION FOR AMERICA, ) 

) 

Plaintiff, ) Civ. No. 22-1422 (CJN) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, et al., ) MOTION TO DISMISS 

) 

Defendants. ) 

) 

FEDERAL ELECTION COMMISSION’S SECOND MOTION TO DISMISS 

Pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure, the 

Federal Election Commission (“FEC”) hereby moves for an order dismissing all counts in 

plaintiff’s complaint, including those that seek relief pursuant to the Administrative Procedure 

Act, 5 U.S.C. §§ 702-706, and mandamus, 28 U.S.C. § 1361, for lack of jurisdiction. This 

motion addresses the impact of material factual developments since the Commission filed its 

prior Motion to Dismiss (Docket Nos. 17, 23) in this matter in July 2022. In the intervening 

time, every FEC Matter Under Review (“MUR”) plaintiff has challenged in this litigation has 

closed, and the records plaintiff has sought as to those matters are either in plaintiff’s possession 

or are available to the public on the FEC’s website. Plaintiff now has all the relief it sought in 

this matter, even as to its broader claims, and it has provided no evidence that it is likely to suffer 

any kind of harm in the future. These developments moot plaintiff’s claims in their entirety, and 

so plaintiff’s Complaint should be dismissed. A supporting memorandum and a proposed order 

accompany this motion. 
 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 2 of 46 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Christopher Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 4, 2023 (202) 694-1650 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 3 of 46 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

HERITAGE ACTION FOR AMERICA, ) 

) 

Plaintiff, ) Civ. No. 22-1422 (CJN) 

) 

v. ) 

) MOTION TO DISMISS 

FEDERAL ELECTION COMMISSION, et al., ) 

) 

Defendants. ) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS SECOND MOTION TO DISMISS 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorneys 

gmueller@fec.gov 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 4, 2023 (202) 694-1650 
 

 

 

 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 4 of 46 

TABLE OF CONTENTS 

PAGE 

BACKGROUND .......................................................................................................................1 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT 

PROCEDURES..............................................................................................................1 

II. FACTUAL BACKGROUND........................................................................................5 

A. MUR 7516 and Related Proceedings.................................................................5 

B. This Action Challenging the Withholding of 

MUR Records ....................................................................................................7 

C. Post-Suit Release of MUR 7516 Material and 

File Closure........................................................................................................8 

D. The Commission’s First Motion to Dismiss ......................................................9 

E. Post-Suit File Closure and Release of Other 

Administrative Matters ....................................................................................10 

F. Post-Release Proceedings in This Case ...........................................................14 

ARGUMENT...........................................................................................................................17 

I. STANDARD OF REVIEW .........................................................................................17 

II. PLAINTIFF’S CLAIMS ARE MOOT AND SHOULD 

BE DISMISSED ..........................................................................................................19 

A. A Case Is Moot When There Is No Longer a 

Live Controversy .............................................................................................19 

B. Plaintiff Has Attained All of the Relief It Sought in 

This Litigation..................................................................................................20 

1. Plaintiff’s Request for Documents Is Moot .........................................21 

2. Plaintiff’s Request for Declaratory Judgment Is Moot........................24 

C. Plaintiff Has No Reasonable Expectation That the Alleged 

Wrong Will Be Repeated.................................................................................28 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 5 of 46 

1. There Is No Evidence That Plaintiff Will Suffer the 

Harm It Alleges in the Future by Being Subject to Any 

FEC Enforcement Proceeding, Much Less One in the 

Specific Procedural Posture It Has Identified Here .............................28 

2. The Voluntary-Cessation Exception to Mootness Does 

Not Apply, and This Case Would Be Moot Even If the 

Exception Did Apply ...........................................................................30 

CONCLUSION........................................................................................................................35 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 6 of 46 

TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

A.L. Mechling Barge Lines, Inc. v. United States, 

Campaign Legal Center v. Heritage Action, 

Chamber of Com. of U.S. of Am. v. U.S. Dep’t of Energy, 

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

368 U.S. 324 (1961) .................................................................................................................. 27 

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003)................................................ 18 

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)................................................................ 32, 33, 34 

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)............................................................................. 18 

Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156 (D.C. Cir. 1997) ...... 20, 24-25, 28, 29-30 

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004).......................................................................... 18 

Belmont Abbey Coll. v. Sebelius, Civ. No. 11-1989, 

2012 WL 3861255 (D.D.C. Sept. 5, 2012) ................................................................................ 29 

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................... 2 

Calderon v. Berryhill, Civ. No. 17-494, 2019 WL 95565 (D.D.C. Jan. 3, 2019)......................... 18 

Campaign Legal Center v. FEC, Civ. No. 21-406 (D.D.C.) (Feb. 16, 2021)........................... 6, 25 

Civ. No. 22-1248 (D.D.C.) (July 8, 2022) ................................................................... 6, 8, 23, 25 

Carney v. Adams, 141 S. Ct. 493 (2020) ...................................................................................... 24 

Cato Inst. v. Sec. & Exch. Comm'n, 4 F.4th 91 (D.C. Cir. 2021) ................................................. 29 

627 F.2d 289 (D.C. Cir. 1980)............................................................................................. 27, 30 

Citizens for Percy '84 v. FEC, Civ. No 84-2653, 

1984 WL 6601 (D.D.C. Nov. 19, 1984) ..................................................................................... 26 

799 F. Supp. 2d 78 (D.D.C. 2011)............................................................................................. 22 

City of Orville v. FERC, 147 F.3d 979 (D.C. Cir. 1998) .............................................................. 29 

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ........................................................ 20, 28, 29 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 7 of 46 

Clark v. United States, 915 F.2d 699 (D.C. Cir. 1990)............................................................19-20 

Coleman v. Miller, 307 U.S. 433 (1939)....................................................................................... 24 

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ........................................................... 26 

Connectu LLC v. Zuckerberg, 522 F.3d 82 (1st Cir. 2008) .......................................................... 25 

Deakins v. Monaghan, 484 U.S. 193 (1988)................................................................................. 34 

Democratic Senatorial Campaign Comm. v. FEC, Civ. No. 95-0349, 

1996 WL 34301203 (D.D.C. Apr. 17, 1996)............................................................................. 26 

Doe v. Harris, 696 F.2d 109 (D.C. Cir. 1982)........................................................................ 27, 28 

Ex parte McCardle, 74 U.S. 506 (1868)....................................................................................... 19 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .................................... 4 

Flast v. Cohen, 392 U.S. 83 (1968) .............................................................................................. 24 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 

528 U.S. 167 (2000) ................................................................................................ 19, 30, 32, 34 

Genesis Healthcare Corp. v. Symczyk, 

569 U.S. 66 (2013) .................................................................................................................... 19 

Giffords v. FEC, Civ. No. 19-1192, 2021 WL 4805478 (D.D.C. Oct. 14, 2021)......................... 26 

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 

920 F.3d 1 (D.C. Cir. 2019)................................................................................................. 32, 33 

Honig v. Doe, 484 U.S. 305 (1988) .............................................................................................. 19 

In re Burrell, 415 F.3d 994 (9th Cir. 2005) .................................................................................. 29 

In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 

928 F.3d 42 (D.C. Cir. 2019)..................................................................................................... 29 

Int’l Bhd. of Teamsters v. TSA, 429 F.3d 1130 (D.C. Cir. 2005)............................................ 19, 20 

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004)..................................................................... 17 

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008)........................................................ 17, 20 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 8 of 46 

Klayman v. Obama, 142 F. Supp. 3d 172 (D.D.C. 2015)................................................. 20, 28, 29 

Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756 (9th Cir.1990)................................................ 29 

Laffey v. Nw. Airlines, Inc., 567 F.2d 429 (D.C. Cir. 1976) ......................................................... 18 

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ......................................................... 19, 21 

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).......................................................... 19, 20, 27, 34 

Paging Sys., Inc. v. FCC, Civ. No. 10-1097, 

2010 WL 5121962 (D.C. Cir. Aug. 30, 2010) ........................................................................... 29 

Preiser v. Newkirk, 422 U.S. 395 (1975)................................................................................ 24, 30 

Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (D.C. Cir. 2005) ................................................. 18 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) ..................................................................... 29 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)......................................................... 19 

Summers v. Earth Island Inst., 555 U.S. 488 (2009) .................................................................... 19 

Telecomm. Rsch. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ....................................... 26 

Statutes and Regulations 

52 U.S.C. §§ 30101-46 ................................................................................................................... 2 

52 U.S.C. § 30104(c)(1).............................................................................................................. 5, 6 

52 U.S.C. § 30104(c)(2)(C) ........................................................................................................ 5, 6 

52 U.S.C. § 30106(b)(1) ................................................................................................................. 2 

52 U.S.C. § 30106(c) .......................................................................................................... 4, 31, 34 

52 U.S.C. § 30106(e) ...................................................................................................................... 2 

52 U.S.C. § 30107(a) ...................................................................................................................... 2 

52 U.S.C. § 30107(a)(6).................................................................................................................. 2 

52 U.S.C. § 30107(a)(7).................................................................................................................. 2 

52 U.S.C. § 30107(a)(8).................................................................................................................. 2 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 9 of 46 

52 U.S.C. § 30107(e) ...................................................................................................................... 2 

52 U.S.C. § 30108........................................................................................................................... 2 

52 U.S.C. § 30109........................................................................................................................... 2 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

52 U.S.C. § 30109(a)(2).............................................................................................................. 2, 3 

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

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

52 U.S.C. § 30109(a)(6).............................................................................................................. 2, 4 

52 U.S.C. § 30109(a)(8).................................................................................................................. 9 

52 U.S.C. § 30109(a)(8)(A) .................................................................................................... 4, 6, 7 

52 U.S.C. § 30109(a)(8)(C) .................................................................................................... 4, 6, 7 

52 U.S.C. § 30109(a)(12)................................................................................................................ 2 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

11 C.F.R. § 2.4................................................................................................................................ 3 

11 C.F.R. § 111.16...................................................................................................................... 3, 4 

11 C.F.R. § 111.20.......................................................................................................................... 2 

11 C.F.R. § 111.21.......................................................................................................................... 2 

Miscellaneous 

FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) ...................................................................................... 4, 15 

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

in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007)............................................. 3 

Fed. R. Civ. P. 12(b)(1)................................................................................................................. 20 

Fed. R. Civ. P. 12(h)(3)................................................................................................................. 18 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 10 of 46 

Nomination Hearing of Dana [sic] Lindenbaum to be a Commissioner on the Federal Election 

Commission, S. Hrg. 117-237 (Apr. 6, 2022) ......................................................................10-11 

5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1384 & 1393 

(3d ed. 2018).............................................................................................................................. 18 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 11 of 46 

The Federal Election Commission (“Commission” or “FEC”) is filing this second motion 

to dismiss because recent events have rendered the claims of plaintiff Heritage Action for 

America (“Heritage Action”) moot in their entirety. At the outset of this matter, Heritage Action 

sought voting records in a number of administrative enforcement matters which were then before 

the Commission, although plaintiff had no connection to most of those matters. Plaintiff claimed 

those records were being unlawfully withheld pursuant to a “policy” to conceal such records in 

violation of the Administrative Procedure Act (“APA”). As the FEC explained in prior briefing, 

the Court never had jurisdiction to consider plaintiff’s challenges, which also failed to state a 

claim under the APA and the mandamus statute. 

In any event, the composition of the FEC recently changed, and the Commissioners took 

a series of successful votes in late August 2022 to close the files with respect to every FEC 

Matter Under Review (“MUR”) that plaintiff alleged had been effectively terminated and 

improperly concealed. All these files are now administratively closed, and the materials sought 

in plaintiff’s Complaint, specifically the relevant vote certifications and statements of reasons, 

are now available on the FEC’s website. Plaintiff thus has access to all of the relief it sought in 

this case, and it does not allege that it is likely to suffer any cognizable injury in the future. This 

matter is moot and should be dismissed accordingly. 

BACKGROUND 

The Commission has provided portions of this background information relevant to events 

prior to the recent MUR closures in briefing on previous dispositive motions, and it again 

provides that information here for ease of reference. New developments are also summarized. 

I. THE FEC AND ITS ADMINISTRATIVE ENFORCEMENT PROCEDURES 

The FEC is an independent agency of the United States government with jurisdiction 

over the administration, interpretation, and civil enforcement of the Federal Election Campaign 
 

 

 

 

 

 

 

 

 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 12 of 46 

Act, 52 U.S.C. §§ 30101-46 (“FECA”). See generally 52 U.S.C. §§ 30106(b)(1), 30107(a), 

30109. Congress provided for the Commission to “prepare written rules for the conduct of its 

activities,” 52 U.S.C. § 30106(e), “formulate policy” under FECA, see, e.g., 52 U.S.C. 

§ 30106(b)(1), and make rules and issue advisory opinions, 52 U.S.C. §§ 30107(a)(7), (8); id. §§ 

30108; 30111(a)(8); see also Buckley v. Valeo, 424 U.S. 1, 110-11 (1976) (per curiam). The 

Commission is also authorized to institute investigations of possible violations of FECA, 

52 U.S.C. § 30109(a)(1)-(2), and to initiate civil enforcement actions in the United States district 

courts, id. §§ 30106(b)(1), 30107(a)(6), 30107(e), 30109(a)(6). 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the statute. 52 U.S.C. § 30109(a)(1). Absent waiver, proceedings on such 

complaints are covered by confidentiality protections, 52 U.S.C. § 30109(a)(12), 11 C.F.R. § 

111.21, until the Commission “terminates its proceedings,” 11 C.F.R. § 111.20. Upon receipt of 

an administrative complaint, the Commission’s Office of General Counsel (“OGC”) is required 

to notify anyone alleged to have committed such a violation, referred to as a respondent, and to 

provide such persons with an opportunity to demonstrate in writing that no action should be 

taken. Id. OGC then prepares a report to the Commission known as a General Counsel’s Report. 

The Report analyzes the allegations in the complaint, applies the relevant law to the facts 

alleged, and sets forth OGC’s recommendations for Commission action. The first General 

Counsel’s Report in an enforcement MUR usually includes a recommendation that the 

Commission take actions regarding the alleged violations, including most commonly: (1) find 

reason to believe that a violation occurred and open an investigation; (2) find no reason to 

believe a violation occurred; (3) dismiss the matter as an exercise of prosecutorial discretion; or 

(4) dismiss the matter with a cautionary message to the respondent regarding its legal 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 13 of 46 

obligations. And FEC votes at this stage are frequently, although not always, on whether to take 

one or more of these courses of action. See FEC, Statement of Policy Regarding Commission 

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 

2007). 

Generally, if one or more Commissioners objects to a first General Counsel’s Report after 

it has been circulated to the Commission, or if fewer than four Commissioners vote to approve or 

reject the report’s recommendations by the voting deadline, the Commission considers the 

enforcement matter at an Executive Session. See generally FEC, Commission Directive No. 52 

(Circulation Vote Procedure) (effective Dec. 1, 2016). Executive Sessions are meetings that are 

closed to the public during which Commissioners consider pending enforcement matters and 

other items that must be kept confidential. See 11 C.F.R. § 2.4. During such meetings, the 

Commissioners may, inter alia, discuss OGC’s recommendations and vote on potential actions 

like those described above, including whether there is “reason to believe” that a FECA violation 

has occurred. 52 U.S.C. § 30109(a)(2). 

If at least four members of the Commission vote to find “reason to believe” a FECA 

violation has occurred, the Commission must notify the respondent of the alleged violation and 

its factual basis, and the agency then ordinarily investigates the allegations. Id. On the other 

hand, if at least four Commissioners determine that there is “no reason to believe” a violation 

occurred or that it is otherwise not appropriate to proceed with an investigation, they may vote to 

dismiss and to close the file in the matter. FEC, Statement of Policy Regarding Commission 

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 12,546. 

After an investigation, OGC may recommend that the Commission find that there is 

“probable cause” to believe FECA has been violated. 52 U.S.C. § 30109(a)(3). Respondents are 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 14 of 46 

entitled to file a responsive brief, id., and OGC prepares a report to the Commission with further 

recommendations, 11 C.F.R. § 111.16. If at least four members of the Commission vote to find 

probable cause to believe that a violation has occurred, the Commission must first attempt to 

resolve the matter by “informal methods of conference, conciliation, and persuasion, and to enter 

into a conciliation agreement” with the respondents. 52 U.S.C. § 30109(a)(4)(A)(i). If informal 

methods of conciliation fail, the Commission may, “upon an affirmative vote of 4 of its 

members,” file a de novo civil enforcement suit in federal district court. Id. § 30109(a)(6)(A). 

After the termination of enforcement matters, the Commission places on the public record 

categories of documents integral to its decision-making process, including certifications of 

Commission votes. FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016). 

FECA provides that the administrative complainant may seek judicial review in this 

District, pursuant to 52 U.S.C. § 30109(a)(8)(A), in the event that the Commission dismisses or 

is alleged to have failed to act on a complaint. Defense of such cases may only be approved 

through an affirmative vote of four members of the Commission. 52 U.S.C. §§ 30106(c), 

30107(a)(6). If a court in a review action declares that a Commission dismissal or failure to act 

is “contrary to law,” the court can order the Commission to conform to that declaration within 30 

days. Id. § 30109(a)(8)(C). If the Commission fails to conform to the declaration within 30 

days, the complainant may obtain a private right of action against the administrative respondent 

for the alleged violations. Id.; FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 

488 (1985). 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 15 of 46 

II. FACTUAL BACKGROUND 

A. MUR 7516 and Related Proceedings 

As explained in the FEC’s Motion to Dismiss (FEC’s Mem. of P. & A. in Supp. of Its 

Mot. to Dismiss (“Motion to Dismiss” or “MTD”) at 5-7 (Docket No. 17)), on October 16, 2018, 

the Campaign Legal Center (“CLC”) and an individual, Margaret Christ, filed an administrative 

complaint with the FEC against Heritage Action. See Compl., MUR 7516 (Heritage Action for 

America) (Oct. 16, 2018).1 The FEC designated the enforcement matter as MUR 7516. 

Notification of Compl. to Heritage Action for America, MUR 7516 (Oct. 22, 2018).2 OGC 

drafted a comprehensive First General Counsel’s Report and provided it to the Commission on 

February 19, 2021. First General Counsel’s Report, MUR 7516 (Feb. 19, 2021).3 

On April 6, 2021, the Commission voted on whether there was reason to believe that 

Heritage Action had “violated 52 U.S.C. § 30104(c)(1) by failing to disclose donors who 

contributed for political purposes” and “52 U.S.C. § 30104(c)(2)(C) by failing to further identify 

the donors who donated for the purpose of funding an independent expenditure.” Cert., MUR 

7516 (Apr. 6, 2021).4 The Commissioners divided 3-3 on this vote. Id. That same day, the 

Commissioners voted on whether to close the administrative file for MUR 7516, which has long 

been the agency’s customary method to terminate the proceedings on an administrative 

enforcement matter, but that vote split 3-3 and thus did not succeed. Id. 

Meanwhile, on February 16, 2021, CLC sued the FEC, claiming that it had failed to act 

on CLC’s administrative complaint and that this inaction was contrary to law under 52 U.S.C. § 

1 https://www.fec.gov/files/legal/murs/7516/7516_01.pdf. 

2 https://www.fec.gov/files/legal/murs/7516/7516_02.pdf. 

3 https://www.fec.gov/files/legal/murs/7516/7516_05.pdf. 

4 https://www.fec.gov/files/legal/murs/7516/7516_06.pdf. 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 16 of 46 

30109(a)(8)(A). CLC v. FEC, Civ. No. 21-406 (D.D.C.) (Feb. 16, 2021) (Docket No. 1). On 

March 25, 2022, after there had not been the four votes necessary for the agency to defend the 

action alleging that it had failed to act on MUR 7516, the court in that case entered default 

judgment against the FEC and ordered the agency to conform to its judgment pursuant to 52 

U.S.C. § 30109(a)(8)(C). Id. (Docket No. 16). 

Also on March 25, 2022, Heritage Action submitted a waiver of statutory confidentiality 

and a Freedom of Information Act (“FOIA”) request to the FEC seeking any vote certifications 

and statements of reasons in MUR 7516. CLC v. Heritage Action, Civ. No. 22-1248 (D.D.C.) 

(July 8, 2022) (Docket No. 20-6). 

On April 7, 2022, the Commissioners divided 3-2 and 3-1 on further votes to find reason 

to believe that Heritage Action had violated 52 U.S.C. § 30104(c)(1) and 52 U.S.C. § 

30104(c)(2)(C). Cert., MUR 7516 (Apr. 7, 2022).5 That same day, the Commissioners split 3-3 

on two votes to close the file in MUR 7516. Id. 

On May 5, 2022, after more than 30 days had elapsed since the judgment of the court in 

CLC v. FEC, Civ. No. 21-406, CLC filed a private action against Heritage Action alleging the 

FECA violations from MUR 7516. CLC v. Heritage Action, Civ. No. 22-1248 (Docket No. 1). 

On May 13, 2022, the three FEC Commissioners who had voted against finding reason to 

believe in MUR 7516 placed a controlling Statement of Reasons explaining their votes in the 

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

and James E. “Trey” Trainor, III, MUR 7516 (May 13, 2022).6 

5 https://www.fec.gov/files/legal/murs/7516/7516_17.pdf. 

6 https://www.fec.gov/files/legal/murs/7516/7516_15.pdf. 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 17 of 46 

B. This Action Challenging the Withholding of MUR Records 

Plaintiff filed this suit principally asserting APA causes of action on May 20, 2022. (See 

Compl.) Plaintiff claimed that it had been harmed by lack of access to the vote certifications and 

statements of reasons in MUR 7156. (Compl. ¶¶ 3-10.) Alongside that relatively confined 

challenge, however, plaintiff made the broader claim that it is only one victim of an alleged 

“policy” of the Commission to deliberately conceal the FEC Commissioners’ voting records and 

statements of reasons from the respective subjects in otherwise terminated enforcement 

proceedings in violation of the APA. (Compl. ¶¶ 1, 2.) Plaintiff alleged that this “concealment 

policy” has harmed a number of other respondents in then-unidentified MURs, over an 

indeterminate period of time. (Compl. ¶¶ 3, 73-74.) 

In support of this theory, Heritage Action contended that whenever a motion to find 

reason to believe that a respondent in an FEC enforcement MUR has violated FECA fails to 

garner the necessary four Commissioner votes for the matter to proceed, the matter is 

automatically terminated. (Compl. ¶¶ 29-30.) Plaintiff claimed that any subsequent failure to 

close the MUR file, and to disclose the voting records and statement of reasons, violates the 

Commission’s legal obligations. (See Compl. ¶¶ 36-38.) Plaintiff alleged that, because FECA 

allows complainants to sue the Commission if it “fail[s] . . . to act” on an administrative 

complaint and then to sue the respondent directly if the FEC still fails to act, 52 U.S.C. § 

30109(a)(8)(A), (C), by failing to close the file the Commission had “left the public and courts 

with the false impression that it has not taken action” on the administrative complaint, “thus 

deliberately subjecting the Commission and Heritage Action to direct civil lawsuits on false 

pretenses.” (Compl. ¶ 7.) Heritage Action noted that it is a defendant in such a private right of 

action stemming from MUR 7516. 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 18 of 46 

These claims formed the basis of plaintiff’s five-count complaint. Counts I through IV 

all allege violations of the APA, while Count V seeks mandamus relief. In all Counts, plaintiff 

seeks an order that defendants terminate MUR 7516 and release the voting records and 

statements of reasons to plaintiff. (Compl. ¶¶ 88, 94, 100, 109, 115.) 

C. Post-Suit Release of MUR 7516 Material and File Closure 

On June 2, 2022, in response to the FOIA request that Heritage Action had submitted, the 

Commission authorized the release to Heritage Action of the certifications of votes that had 

occurred in MUR 7516 prior to the date of its FOIA request. CLC v. Heritage Action, Civ. No. 

22-1248 (D.D.C.) (July 8, 2022) (Docket No. 20-6). On June 15, 2022, pursuant to the granting 

of its FOIA request, Heritage received a copy of the Statement of Reasons by three 

Commissioners that was dated May 13, 2022. Id. (Docket No. 20-7). 

On June 7, 2022, FEC Commissioners voted to close the administrative file for MUR 

7516, and a notification was sent to Heritage Action on June 9, 2022. Notification to Heritage 

Action on June 9, 2022.7 Two Commissioners who had voted to find reason to believe issued a 

Statement of Reasons explaining their votes on July 7, 2022. Statement of Reasons of 

Commissioners Shana M. Broussard and Ellen L. Weintraub, MUR 7516 (July 7, 2022).8 The 

case file was released to the public via the FEC’s website on July 13, 2022.9 The file included 

7 https://www.fec.gov/files/legal/murs/7516/7516_14.pdf. 

8 https://www.fec.gov/files/legal/murs/7516/7516_16.pdf. 

9 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7516/ (last visited Oct. 24, 2022) (MUR 7516 Main Page). The particular records sought 

by plaintiff are attached as Exhibit A and are available at the following URLs: 

https://www.fec.gov/files/legal/murs/7516/7516_06.pdf (vote cert. 04/06/2021); 

https://www.fec.gov/files/legal/murs/7516/7516_07.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7516/7516_10.pdf (vote cert. 04/06/2022); 

https://www.fec.gov/files/legal/murs/7516/7516_17.pdf (vote cert. 04/07/2022); 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 19 of 46 

both of the Statements of Reasons described above, as well as other documents customarily 

released to the public. Id. 

D. The Commission’s First Motion to Dismiss 

The Commission filed a Motion to Dismiss plaintiff’s claims on July 22, 2022. In its 

Motion to Dismiss the Commission argued that plaintiff’s claims are precluded because (1) the 

judicial review provision of the Federal Election Campaign Act, 52 U.S.C. § 30109(a)(8), is the 

exclusive means of challenging the FEC’s handling of administrative enforcement matters; (2) 

plaintiff is in possession of all the information it seeks as to MUR 7516, rendering that portion of 

its claims moot, and plaintiff has not established standing to obtain any relief on behalf of 

unnamed third parties as to its broad “concealment policy” claims; and (3) plaintiff fails even to 

state a claim under the Administrative Procedure Act (“APA”) because the actions it challenges 

are committed to the FEC’s discretion by law and there is no reviewable “final agency action.” 

In response, on August 5, 2022, plaintiff filed its Memorandum in Opposition to the 

Commission’s Motion to Dismiss and Cross-Motion for Summary Judgment (“Motion for 

Summary Judgment” or “MSJ”) (Docket No. 20-1). In this motion plaintiff moved for judgment 

on each of its claims based on the existing record before the Court. Plaintiff stated that no 

administrative record was necessary for the Court to rule on its claims, while simultaneously 

stating that the public file for MUR 7516 released by the Commission “would be the 

administrative record.” (MSJ at 28 n.3 (citing FEC, MUR #7516: Summary, 

https://www.fec.gov/data/legal/matter-under-review/7516/ (last visited Sept. 15, 2022)).) The 

https://www.fec.gov/files/legal/murs/7516/7516_12.pdf (vote cert. 06/07/2022); 

https://www.fec.gov/files/legal/murs/7516/7516_15.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/7516/7516_16.pdf (SOR 07/07/2022). 

9 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

10 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 20 of 46 

Commission filed its Opposition to plaintiff’s summary judgment motion on August 26, 2022. 

(Opposition to Plaintiff’s Cross-Motion for Summary Judgment (“MSJ Opp.”) (Docket No. 26).) 

E. Post-Suit File Closure and Release of Other Administrative Matters 

On June 7, 2022, FEC Commissioners voted to close the administrative file for MUR 

7422 (Greitens for Missouri, et al.), one of the other MURs that plaintiff has claimed was subject 

to a “concealment policy,” see supra p. 7, and the case file was released to the public shortly 

thereafter.10 

During the summer of 2022 the composition of the Commission changed, resulting in the 

closure of every other MUR plaintiff alleges was improperly held open. Specifically, in July 

2022 former Commissioner Steven Walther retired, and he was succeeded by Commissioner 

Dara Lindenbaum, who was sworn in on August 2, 2022. FEC, Dara Lindenbaum Sworn In As 

Commissioner (Aug. 2, 2022), https://www.fec.gov/updates/dara-lindenbaum-sworn-in-ascommissioner/. In her confirmation hearings before the U.S. Senate in April of 2022, in 

response to a question that appeared to be directed at the MURs that plaintiff has identified in 

this case, Commissioner Lindenbaum expressed the view that such matters should be closed, and 

she committed to advocating for that. See Nomination Hearing of Dana [sic] Lindenbaum to be 

These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7422/ (last visited Sept. 14, 2022) (MUR 7422 Main Page). The particular records 

sought by plaintiff are attached as Exhibit B and are available at the following URLs: 

https://www.fec.gov/files/legal/murs/7422/7422_67.pdf (vote cert. 06/25/2020); 

https://www.fec.gov/files/legal/murs/7422/7422_68.pdf (vote cert. 01/14/2021); 

https://www.fec.gov/files/legal/murs/7422/7422_70.pdf (vote cert. 01/13/2022); 

https://www.fec.gov/files/legal/murs/7422/7422_71.pdf (vote cert. 06/07/2022); 

https://www.fec.gov/files/legal/murs/7422/7422_83.pdf (SOR 08/28/2020); 

https://www.fec.gov/files/legal/murs/7422/7422_82.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/7422/7422_84.pdf (SOR 07/08/2022). 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 21 of 46 

a Commissioner on the Federal Election Commission, S. Hrg. 117-237, at 7 (Apr. 6, 2022).11 

Soon thereafter, on August 29, 2022, there were successful votes to close the file in a 

number of FEC MURs, including each of the MURs that were subject to plaintiff’s allegations in 

this case. Specifically, on August 29 the Commission voted to close the following MURs, which 

has resulted in the required notifications being sent to complainants and respondents, along with 

the certifications of Commission votes and Commissioner statements of reasons being placed on 

the public record: 

• MUR 6589R (American Action Network);12 

11 https://www.govinfo.gov/content/pkg/CHRG-117shrg47323/pdf/CHRG117shrg47323.pdf. The full relevant exchange proceeded as follows: 

Senator Blunt: “On the whole idea of the files and the time it takes to process 

this, and I think we have both mentioned and I know I mentioned in my comments the 

importance of clearing through this backlog, but I have heard recently that the FEC is not 

always voting now to close files when they have reached a final determination. 

“It seems to me that that is--it is unnecessary to have a file out there that is still 

available to the public if, or other attorneys, if the FEC has made a final decision on that. 

What is your view on whether these files that have been decided on, how should they be--

how should they be handled?” 

Ms. Lindenbaum: “I believe they should be closed.” 

Senator Blunt: “Okay, good. You will commit to advocating for that?” 

Ms. Lindenbaum: “Yes.” 

Id. 

12 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/6589R/ (last visited Sept. 14, 2022) (MUR 6589R Main Page). The particular records 

sought by plaintiff are attached as Exhibit C and are available at the following URLs: 

https://www.fec.gov/files/legal/murs/6589R/6589R_08.pdf (vote cert. 06/24/2014); 

https://www.fec.gov/files/legal/murs/6589R/6589R_17.pdf (vote cert. 10/18/2016); 

https://www.fec.gov/files/legal/murs/6589R/6589R_22.pdf (vote cert. 05/10/2018); 

https://www.fec.gov/files/legal/murs/6589R/6589R_26.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/6589R/6589R_27.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/6589R/6589R_11.pdf (SOR 07/30/2014); 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 22 of 46 

• MURs 6915 and 6927 (John Ellis Bush, et al.);13 

• MURs 7427, 7497, 7524, and 7553 (Nat’l Rifle Ass’n of Am. Political Victory 

Fund, et al.);14 

https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/6589R/6589R_31.pdf (SOR 09/30/2022). 

13 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/6915/ (MUR 6915 Main Page), and https://www.fec.gov/data/legal/matter-underreview/6927/ (MUR 6927 Main Page) (last visited Sept. 14, 2022). The particular records 

sought by plaintiff are attached as Exhibit D and are available at the following URLs (duplicate 

records omitted): 

https://www.fec.gov/files/legal/murs/6915/6915_33.pdf (vote cert. 12/06/2018); 

https://www.fec.gov/files/legal/murs/6915/6915_34.pdf (vote cert. 12/13/2018); 

https://www.fec.gov/files/legal/murs/6915/6915_35.pdf (vote cert. 04/09/2019); 

https://www.fec.gov/files/legal/murs/6915/6915_36.pdf (vote cert. 04/23/2019); 

https://www.fec.gov/files/legal/murs/6915/6915_37.pdf (vote cert. 05/07/2019); 

https://www.fec.gov/files/legal/murs/6915/6915_38.pdf (vote cert. 05/23/2019); 

https://www.fec.gov/files/legal/murs/6915/6915_39.pdf (vote cert. 06/23/2020); 

https://www.fec.gov/files/legal/murs/6915/6915_41.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/6915/6915_40.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/6915/6915_45.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/6915/6915_46.pdf (SOR 09/30/2022); 

https://www.fec.gov/files/legal/murs/6915/6915_47.pdf (SOR 10/04/2022). 

14 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7427/ (MUR 7427 Main Page), https://www.fec.gov/data/legal/matter-underreview/7497/ (MUR 7497 Main Page), https://www.fec.gov/data/legal/matter-underreview/7524/ (MUR 7524 Maine Page), https://www.fec.gov/data/legal/matter-underreview/7553/, and (MUR 7553 Main Page) (last visited Sept. 14, 2022). The particular records 

sought by plaintiff are attached as Exhibit E and are available at the following URLs (duplicate 

records omitted): 

https://www.fec.gov/files/legal/murs/7427/7427_40.pdf (vote cert. 02/09/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_41.pdf (vote cert. 02/23/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_42.pdf (vote cert. 02/23/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_65.pdf (vote cert. 02/23/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_44.pdf (vote cert. 10/26/2021); 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 23 of 46 

• MUR 7486 (45Committee, Inc.);15 

• MURs 7672, 7674, and 7732 (Iowa Values, et al.);16 

https://www.fec.gov/files/legal/murs/7427/7427_49.pdf (vote cert. 12/02/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_50.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7427/7427_51.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7427/7427_53.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/7427/7427_64.pdf (SOR 12/23/2021); 

https://www.fec.gov/files/legal/murs/7427/7427_66.pdf (SOR 09/30/2022). 

15 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7486/ (last visited Sept. 14, 2022) (MUR 7486 Main Page). The particular records 

sought by plaintiff are attached as Exhibit F and are available at the following URLs: 

https://www.fec.gov/files/legal/murs/7486/7486_09.pdf (vote cert. 06/23/2020); 

https://www.fec.gov/files/legal/murs/7486/7486_11.pdf (vote cert. 12/02/2021); 

https://www.fec.gov/files/legal/murs/7486/7486_12.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7486/7486_13.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/7486/7486_17.pdf (SOR 12/09/2021); 

https://www.fec.gov/files/legal/murs/7486/7486_16.pdf (SOR 08/30/2022); 

https://www.fec.gov/files/legal/murs/7486/7486_18.pdf (SOR 09/28/2022). 

16 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7672/ (MUR 7672 Main Page), https://www.fec.gov/data/legal/matter-underreview/7674/ (MUR 7674 Main Page), and https://www.fec.gov/data/legal/matter-underreview/7732/ (MUR 7732 Main Page) (last visited Sept. 14, 2022). The particular records 

sought by plaintiff are attached as Exhibit G and are available at the following URLs (duplicate 

records omitted): 

https://www.fec.gov/files/legal/murs/7672/7672_15.pdf (vote cert. 01/26/2021); 

https://www.fec.gov/files/legal/murs/7672/7672_16.pdf (vote cert. 01/28/2021); 

https://www.fec.gov/files/legal/murs/7672/7672_17.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7672/7672_18.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/7672/7672_21.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/7672/7672_22.pdf (SOR 09/28/2022). 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 24 of 46 

• MUR 7726 (David Brock, et al.).17 

Combined with the previously-closed MURs 7516 (Heritage Action) and 7422 (Greitens for 

Missouri, et al.), these MURs comprise all of the MURs identified in the May 13, 2022 

Commissioner public statement18 that forms the basis of plaintiff’s claims. (See Compl. for 

Decl. and Inj. Relief ¶ 35 (“Compl.”) (Docket No. 1); see also Mem. in Opp’n to the 

Commission’s Mot. to Dismiss and Cross-Mot. for S.J. at 39 (“Motion for Summary Judgment” 

or “MSJ”) (Docket No. 20-1) (seeking “an order ‘compel[ling]’ the FEC to issue the required 

notifications to the parties in the eight enforcement matters and publicly release its voting 

records and any statements of reasons.”); Proposed Order at 2 (Docket No. 20-10) (providing 

same).) The vote certifications and Statements of Reasons are publicly available for every MUR 

for which plaintiff sought that relief. 

F. Post-Release Proceedings in This Case 

On September 1, 2022, the Commission filed a notice stating that earlier that week, on 

August 29, the Commissioners had voted to close several MURs that appeared to meet the 

criteria of the seven groups of MURs plaintiff alleges were improperly held open and subject to 

17 These records are publicly available at https://www.fec.gov/data/legal/matter-underreview/7726/ (last visited Sept. 14, 2022) (MUR 7726 Main Page). The particular records 

sought by plaintiff are attached as Exhibit H and are available at the following URLs: 

https://www.fec.gov/files/legal/murs/7726/7726_14.pdf (vote cert. 01/28/2021); 

https://www.fec.gov/files/legal/murs/7726/7726_15.pdf (vote cert. 01/11/2022); 

https://www.fec.gov/files/legal/murs/7726/7726_16.pdf (vote cert. 08/29/2022); 

https://www.fec.gov/files/legal/murs/7726/7726_19.pdf (SOR 05/13/2022); 

https://www.fec.gov/files/legal/murs/7726/7726_20.pdf (SOR 09/29/2022). 

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

James E. “Trey” Trainor, III Regarding Concluded Enforcement Matters (May 13, 2022), 

https://www.fec.gov/resources/cmscontent/documents/Redacted_Statement_Regarding_Concluded_Matters_13_May_2022_Redact 

ed.pdf, at 1. 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 25 of 46 

the alleged “concealment policy.” (Docket No. 27.) The notice included the information that as 

a result of the closure of these MUR files, the Commission would soon place on the public 

record certifications of Commission votes and Commissioner statements of reasons. (Id. at 2 

(citing FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 

50,702, 50,703 (Aug. 2, 2016)).) 

On the following day, September 2, 2022, plaintiff filed a motion seeking broad 

discovery from both the Commission and unidentified third parties based upon the agency’s 

alleged “bad faith or improper behavior.” (See Mot. for Discovery (“Discovery Motion”) at 1 

(Docket No. 29-1).) Plaintiff’s Discovery Motion offered thirteen broadly-worded “topics” on 

which it intended to take discovery to “support its APA claims” with evidence “that the FEC has 

offered a pretextual rationale to conceal its misconduct.” (Id. at 2, 16.) The Commission 

opposed plaintiff’s Discovery Motion, citing (1) the existence of fully-briefed and dispositive 

issues regarding this Court’s jurisdiction and the legal sufficiency of plaintiff’s claims, (2) the 

recent closure of all MURs that are the subject of plaintiff’s claims, providing plaintiff with all 

the relief it sought in this proceeding and mooting its claims, and (3) plaintiff’s failure to offer 

any probative evidence of bad faith or improper behavior, or to justify discovery in an 

administrative review action. (See FEC’s Opp’n to Pl.’s Mot. for Disc. (“Discovery Opp.”) 

(Docket No. 30).) 

On September 22, 2022, plaintiff filed Motions to Expedite and Set Hearing (the 

“Motion to Expedite”), which sought to have the Court “expedit[e] this case” and “schedul[e] a 

hearing on the motion for discovery at the Court’s earliest convenience.” (Motion to Expedite at 

4 (Docket Nos. 32, 33).) The Commission opposed this motion, noting that there is no basis to 

expedite consideration of any portion of this case except the Commission’s fully briefed motion 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 26 of 46 

to dismiss, and that plaintiff currently has access to all the materials sought in its Complaint. 

(See FEC’s Opp. to Pl’s Mot. to Expedite at 1-2 (“Expedite Opp.”) (Docket Nos. 35, 36).) 

On October 3, 2022, plaintiff filed a notice with this Court purporting to offer additional 

evidence of the Commission’s bad faith. (See Notice of Additional Evidence of the Federal 

Election Commission’s Bad Faith and Improper Behavior (“Notice of Additional Evidence”) 

(October 3, 2022) (Docket No. 34).) The Notice of Additional Evidence acknowledged that “on 

September 30, 2022, the [Commission] made public the files in several [MURs] that were 

subject to the concealment policy challenged in this case.” Id. at 1 (listing MURs). The Notice 

of Additional Evidence then focused on a selection of tweets by FEC Commissioner Ellen 

Weintraub explaining her votes in these matters, which plaintiff styled as “additional evidence of 

the Commission’s bad faith and improper behavior[.]” Id. 

On October 4, 2022, Commissioner Weintraub issued a public statement that addressed 

issues related to the voting in the MURs about which plaintiff has complained in this case. See 

Statement of Commissioner Ellen L. Weintraub on the Voting Decisions of FEC Commissioners 

at 1-2, October 4, 2022 (“Weintraub Statement”).19 In her statement Commissioner Weintraub 

explained her views that administrative complaints are not dismissed following a single vote on 

the merits of the complaint (id. at 4-5, 7-13), maintaining the confidentiality of documents in 

such open matters does not constitute “concealment” (id. at 4, 13), and declining to authorize the 

Commission to defend itself in litigation pursuant to section 30109(a)(8) is permissible and 

contemplated by FECA (id. at 13-15). 

Available at https://www.fec.gov/resources/cms-content/documents/2022-10-04-ELWStatement-on-Voting-Decisions.pdf. 

16 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 27 of 46 

ARGUMENT 

In this action plaintiff Heritage Action sought certain records regarding a set of 

administrative enforcement matters that were before the Commission. The Commission showed 

earlier that the Court has no jurisdiction to consider plaintiff’s complaint, which also fails to state 

a claim under the Administrative Procedure Act (“APA”) and the mandamus statute. (MTD; 

FEC’s Reply in Supp. of Its Mot. to Dismiss (“Reply”) (Docket No. 23).) But in any case, the 

agency proceedings that are the subject of plaintiff’s claims have now all concluded, and plaintiff 

has access to all the records it sought, including vote certifications and statements of reasons in 

each of the MURs at issue. Plaintiff does not allege that it is currently a respondent in any 

Commission proceeding, nor that it is likely to be a respondent in any future FEC proceeding, let 

alone a proceeding that would be in the specific procedural posture that plaintiff alleges was the 

case in the handful of MURs at issue here. Moreover, at no point has plaintiff offered evidence 

of anything resembling an actual agency policy to conceal records, as opposed to activities in a 

small fraction of now-concluded FEC proceedings. Given that all eight of the groups of matters 

about which plaintiff complained are all now in the status plaintiff had sought, it is clear that 

there is no “policy” for the Court to address. Because plaintiff’s claims are now moot in their 

entirety, they should be immediately dismissed. 

I. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for “lack of jurisdiction 

over the subject matter” of claims asserted in the Complaint. The party claiming subject matter 

jurisdiction bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 

529 F.3d 1112, 1115 (D.C. Cir. 2008). When reviewing a motion to dismiss for lack of subject 

matter jurisdiction, each court has “‘an affirmative obligation to insure that it is acting within the 

scope of its jurisdictional authority.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004) 

17 
 

 

 

 

 

 

 

 

 

 

 

 

 

20 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 28 of 46 

(citation omitted). In evaluating such motions, courts review the complaint liberally and grant 

plaintiffs the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 

370 F.3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over a claim, the 

court may consider materials outside the pleadings. Settles v. U.S. Parole Comm’n, 

429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter 

jurisdiction on a federal court because subject matter jurisdiction is both a statutory requirement 

and a constitutional requirement under Article III. Akinseye v. District of Columbia, 

339 F.3d 970, 971 (D.C. Cir. 2003). 

The Rules permit the Court to determine “at any time” that it lacks subject-matter 

jurisdiction. Fed. R. Civ. P. 12(h)(3).20 If the Court makes such a determination, it “must 

dismiss the action.” Id. “The requirement that jurisdiction be established as a threshold matter 

spring[s] from the nature and limits of the judicial power of the United States and is inflexible 

and without exception,” since “[w]ithout jurisdiction the court cannot proceed at all in any 

Challenges to subject matter jurisdiction “may be raised by a party, or by a court on its 

own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh 

v. Y & H Corp., 546 U.S. 500, 506 (2006). See, e.g., Calderon v. Berryhill, Civ. No. 17-494, 

2019 WL 95565, at *2 (D.D.C. Jan. 3, 2019) (explaining that “‘a question of subject matter 

jurisdiction may be presented by any interested party at any time throughout the course of the 

lawsuit’ by any means”) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure §§ 1384 & 1393 (3d ed. 2018)); Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 474 

(D.C. Cir. 1976) (“Parties cannot waive subject matter jurisdiction by their conduct or confer it 

on the court by consent, and the absence of such jurisdiction can be raised at any time.”) 

(citations omitted). 

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Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 29 of 46 

cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (quoting Ex parte 

McCardle, 74 U.S. 506, 514 (1868)). 

II. PLAINTIFF’S CLAIMS ARE MOOT AND SHOULD BE DISMISSED 

A. A Case Is Moot When There Is No Longer a Live Controversy 

To have Article III standing a plaintiff must establish: “(1) it has suffered an ‘injury in 

fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 

hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it 

is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 

decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-181 (2000) 

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Where a plaintiff asserts a 

procedural right, he must show that he has suffered a personal and particularized injury that 

impairs one of his concrete interests. Int’l Bhd. of Teamsters v. TSA, 429 F.3d 1130, 1135 (D.C. 

Cir. 2005). “[D]eprivation of a procedural right without some concrete interest that is affected 

by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing.” 

Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). 

Under the Constitution, federal courts are limited to deciding “actual, ongoing 

controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “If an intervening circumstance 

deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during 

litigation, the action can no longer proceed and must be dismissed as moot.” Genesis Healthcare 

Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis v. Continental Bank Corp., 494 U.S. 

472, 477–478 (1990)); see Clark v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (“Even 

where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal 

court to refrain from deciding it if events have so transpired that the decision will neither 

presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in 

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the future.”) (quotation marks and citations omitted). Further, “[w]hen the challenged harm is 

prospective, courts face the additional hurdle of assuring themselves that its likelihood is not too 

far flung, lest imminence . . . be stretched beyond its purpose to create a controversy where none 

exists.” Klayman v. Obama, 142 F. Supp. 3d 172, 184 (D.D.C. 2015) (citing Lujan, 504 U.S. at 

564 n. 2) (internal quotation marks omitted). Consequently, the “threatened injury must be 

certainly impending” to prevent litigation of illusory claims. Id. (citing Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 409 (2013)). While the movant has the burden of proving mootness, a 

plaintiff must defend a motion to dismiss brought under Rule 12(b)(1) by proving by a 

preponderance of the evidence that the court has jurisdiction to hear its claims. Khadr v. United 

States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). 

B. Plaintiff Has Attained All of the Relief It Sought in This Litigation 

In this case, plaintiff has received all documents it sought in its Complaint. The entirety 

of the harm alleged in this proceeding stems from the Commission’s supposed failure to disclose 

vote certifications and statements of reasons in a limited subset of enforcement proceedings. 

This is the alleged cause of both the “informational injury” and the “litigation injury” that form 

the basis of plaintiff’s claims to standing in this lawsuit. Plaintiff’s request for declaratory 

judgment is also moot because plaintiff is “currently in a position that is practically no different 

from any other” entity that engages in political activities, and it has not demonstrated that a 

decision in this case will have any impact on its rights in other proceedings. Aulenback, Inc. v. 

Fed. Highway Admin., 103 F.3d 156, 162 (D.C. Cir. 1997). Plaintiff thus cannot demonstrate a 

“personal and particularized injury that impairs one of [its] concrete interests,” Teamsters v. TSA, 

429 F.3d at 1135, and no decision of this Court could “presently affect” plaintiff’s rights, Clark, 

915 F.2d at 701. 

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1. Plaintiff’s Request for Documents Is Moot 

Plaintiff is now in possession of all the information it sought in this litigation. The only 

information plaintiff requested that the Commission disclose consists of closure notifications, 

voting records, and statements of reasons for MUR 7516 and the other MURs plaintiff alleges 

were improperly held open. (Compl. at 28 (Prayer for Relief); MSJ at 39 (requesting an order 

compelling the FEC “to issue the required notifications to the parties in the eight enforcement 

matters and publicly release its voting records and any statements of reasons.”) (Proposed Order 

at 2 (Docket No. 20-10) (providing same).) All these materials have been publicly available 

since late September 2022, and indeed the Commission is providing them with the instant 

Motion. See supra pp. 10-14 & Exhs. A-H. Plaintiff itself has in fact acknowledged the 

Commission’s disclosure of these documents in its recent notice to the Court. (See Notice of 

Additional Evidence at 1 (“Plaintiff Heritage Action for America (Heritage Action) respectfully 

notifies the Court that on September 30, 2022, the Federal Election Commission (FEC or 

Commission) made public the files in several Matters Under Review (MUR) that were subject to 

the concealment policy challenged in this case.”) (listing MURs).) 

This disclosure indisputably alleviates all purported “harm” stemming from plaintiff’s 

alleged “informational injury[.]”21 (Compl. ¶ 74.) In its Complaint plaintiff alleged that “[t]he 

denial of this information causes Heritage Action to suffer the type of harm the disclosure 

provisions are meant to prevent, because Heritage Action is denied information regarding its 

continued exposure to enforcement actions and civil liability.” (Id.) Plaintiff elsewhere 

As the Commission has articulated elsewhere, plaintiff never suffered an “informational 

injury” sufficient to establish Article III standing with respect to MURs to which it is not a party. 

(MTD at 18-19; Reply at 9-12; MSJ Opp. at 21-23.) But even assuming, arguendo, that such 

injury ever existed, it has been fully cured by the recent release of MUR materials, for the 

reasons articulated herein. 

21 

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suggested that it has a generalized interest in understanding “how the Commission is enforcing 

FECA in these matters[.]” (MSJ at 15.) Whatever the merits of that claim, the information the 

Commission has provided has cured this alleged “injury.” Plaintiff has received all documents it 

sought with respect to each MUR whose handling it has challenged here. Furthermore, the 

Commission would not be able to claw back these documents from plaintiff or otherwise prevent 

access to this information even if it were so inclined. Plaintiff clearly no longer has a “personal 

stake in the outcome of the lawsuit,” and the lawsuit should accordingly be dismissed. Lewis, 

494 U.S. at 477–478. 

In analogous situations this Court has held that, where a party acquires all of the 

information it sought in litigation, it no longer has standing to sue for harms caused by the lack 

of such information. In Citizens for Responsibility & Ethics in Washington v. Federal Election 

Commission, 799 F. Supp. 2d 78 (D.D.C. 2011) (“CREW”), the court dismissed plaintiffs’ claims 

for lack of standing, noting that the precise information sought by the plaintiffs, in that case the 

level of spending by a political action committee, was “publicly available online” and “does not 

appear to be in dispute.” Id. at 88. Likewise here, because Heritage Action does not “allege any 

specific factual information [it] lack[s] that is not already publicly available[,]” it cannot 

demonstrate a factual injury. Id. at 89. 

The Commission’s disclosure also cures any purported injury due to Heritage Action 

being “wrongfully exposed . . . to a direct civil lawsuit[.]” (Compl. ¶ 73.) Plaintiff’s Complaint 

makes no claim that, in order to defend the civil action brought against it by the Campaign Legal 

Center, it requires more than the notifications, vote certifications and statements of reasons it 

now possesses. Id. (“Had Defendants sent the required notifications and publicly released the 

voting records and any statement of reasons in MUR 7516, the public record at the time of Judge 

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Kelly’s March 25, 2022 order would have shown that the Commission did not ‘fail ... to act’ on 

CLC’s administrative complaint against Heritage Action in MUR 7516.”). In fact, having 

acquired these documents from the Commission in June of 2022, plaintiff made use of them to 

defend itself in the private right of action against it brought by the Campaign Legal Center. For 

example, on July 8, 2022, plaintiff filed a motion to dismiss the private enforcement action 

initiated against it by the Campaign Legal Center. Def.’s Mem. of P. & A. in Supp. of Mot. to 

Dismiss, CLC v. Heritage Action, Civ. No. 22-1248 (Docket No. 20-1). This motion attached as 

exhibits and made frequent reference to the MUR 7516 vote certifications and statements of 

reasons. Id. (Docket Nos. 20-6, 20-7 (Exhs. E, F)). Plaintiff has not suggested that it lacks any 

of the documents necessary to defend itself in this action, or any other. Plaintiff is therefore in 

possession of all the information necessary to “defending ongoing legal action[.]” (Compl. 

¶ 74.) 

To the extent plaintiff may claim that its purported “litigation injury” would be cured 

only by the dismissal of the Campaign Legal Center’s lawsuit, this is beyond the power of the 

Court to provide in this case, and hence irrelevant to the Court’s mootness analysis. Whether the 

lawsuit brought by the Campaign Legal Center should be dismissed is indisputably a question for 

the district court judge in that case, or the Circuit Court on appeal. See Expedite Opp. at 3-4; see 

also Lujan, 504 U.S. at 561 (Article III standing requires proof of harm that will be “redressed by 

a favorable decision.”). 

Nonetheless, plaintiff has suggested that “[t]he D.C. Circuit would benefit from this 

Court’s views about whether Judge Kelly was misled by the FEC’s bad faith and improper 

behavior,” based on plaintiff’s speculation that the Court may “conclude[] that the FEC misled 

Judge Kelly by concealing its voting records and statements of reasons[.]” (Motion to Expedite 

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at 3.) However, plaintiff’s suggestion does not even allege that the Court’s “views” will resolve 

a live case or controversy here. Instead, it amounts to a request for an impermissible advisory 

opinion. See Carney v. Adams, 141 S. Ct. 493, 498 (2020) (The courts’ Article III power to 

decide “Cases” or “Controversies” “require[s] that a case embody a genuine, live dispute 

between adverse parties, thereby preventing the federal courts from issuing advisory opinions.”) 

(citing Flast v. Cohen, 392 U.S. 83, 96–97 (1968); Coleman v. Miller, 307 U.S. 433, 460 (1939) 

(opinion of Frankfurter, J.)). Any impact of this Court’s views on other proceedings is far too 

attenuated to confer jurisdiction on this Court. 

2. Plaintiff’s Request for Declaratory Judgment Is Moot 

Plaintiff’s request for declaratory relief is likewise moot and cannot revive its moot 

claims. While “there is no ‘precise test of universal application’ for determining whether a 

party’s request for declaratory relief has become moot ... the basic question under Article III of 

the Constitution is ‘whether the facts alleged, under all the circumstances, show that there is a 

substantial controversy, between parties having adverse legal interests, of sufficient immediacy 

and reality to warrant the issuance of a declaratory judgment.’” Aulenback, Inc. v. Fed. 

Highway Admin., 103 F.3d 156, 161 (D.C. Cir. 1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 

402 (1975)). The Court’s authority to issue declaratory relief remains subject to the prohibition 

on “rendering any judgments unless they resolve a real and substantial controversy admitting of 

specific relief through a decree of a conclusive character, as distinguished from an opinion 

advising what the law would be upon a hypothetical state of facts.” Id. at 162. 

Here, there is no longer any “real and substantial controversy” because plaintiff has 

received all of the “specific relief” it has sought. Aulenback, 103 F.3d at 162. Plaintiff has 

received all of the MUR information it claimed was improperly concealed, and those matters 

have closed. See supra pp. 10-14. Thus, plaintiff is “currently in a position that is practically no 

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different from any other” entity that engages in political activities, and the fact that it may be 

subject to enforcement “on the basis of as-yet undetermined violations” is of no moment. 

Aulenback, 103 F.3d at 162. Under these circumstances, “declaratory relief from this court 

would be of little effect.” Id. 

In a related vein, plaintiff has argued that the collateral consequences doctrine can sustain 

its lawsuit “because a declaratory judgment that the FEC unlawfully concealed its voting records 

in MUR 7516, see Compl. at 28, would help Heritage Action obtain dismissal of CLC’s citizen 

suit.” (MSJ at 16.) As noted, however, the Court’s power to issue declaratory relief is subject to 

the same principles of mootness as other claims. See supra pp. 23-24. Because plaintiff already 

has the information actually sought in its Complaint, there is no jurisdictional basis for any such 

judgment. 

In addition, plaintiff simply has not shown that a declaratory judgment in this proceeding 

would have any effect on the proceedings in Campaign Legal Center v. Heritage Action, Civ. 

No. 22-1248 (D.D.C.), let alone the kind of “concrete (and potentially devastating) impact” 

courts typically require to apply the collateral consequences defense to mootness. (MSJ at 16 

(quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008)).) Plaintiff’s complaint 

simply assumed, without explanation, that the court in the case alleging unlawful delay, CLC v. 

FEC, Civ. No. 21-0406 (D.D.C.), would have reached a different result had plaintiff been in 

possession of the information it sought as to MUR 7516 when that matter was decided. (See 

Compl. ¶ 73.) In its Motion for Summary Judgment plaintiff argued that “a declaratory 

judgment in this case would undermine the citizen suit’s fictional premise that the FEC failed to 

act on CLC’s administrative complaint by confirming that the agency’s concealment of its action 

on the complaint was unlawful.” (MSJ at 17.) But plaintiff has not explained why a 

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determination by a different judge that the Commission’s alleged “concealment of its action” 

was unlawful would be necessary, or even helpful, for the court in that case to determine that the 

Commission unreasonably delayed in handling the CLC complaint. 

In fact, as the Commission has explained (Reply at 5-6), a declaration that the 

Commission acted unlawfully in failing to release MUR information would have no bearing on 

the modes of analysis courts employ in reviewing whether the agency has unduly delayed in the 

MUR itself. This is because prior non-final Commissioner votes on an administrative complaint, 

such as whether there was reason to believe violations of FECA occurred, are simply not 

dispositive in the court’s analysis. See Giffords v. FEC, Civ. No. 19-1192, 2021 WL 4805478, at 

*8 (D.D.C. Oct. 14, 2021) (finding timing contrary to law even though the court was aware of 

prior split votes on whether there was reason to believe violations of FECA occurred, based on 

the factors in Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) and Telecommunications 

Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984)). Even where the Commission 

finds reason to believe a violation occurred, this is only one factor in the court’s analysis of 

whether the Commission unreasonably delayed action on the complaint. See Citizens for Percy 

'84 v. FEC, Civ. No. 84-2653, 1984 WL 6601, at *1 (D.D.C. Nov. 19, 1984) (finding FEC’s 

handling of a MUR contrary to law where the FEC voted to find reason to believe a violation 

occurred two months after the delay suit was filed and had not yet taken final action); 

Democratic Senatorial Campaign Comm. v. FEC, Civ. No. 95-0349, 1996 WL 34301203, at *1 

(D.D.C. Apr. 17, 1996) (finding FEC’s handling of a MUR contrary to law even though nearly 

five months after suit was filed, the FEC voted to find reason to believe and began an 

investigation). Plaintiff has failed to establish that the mere disclosure of prior votes in MUR 

7516 would have had any impact on the court’s prior determination that the Commission 

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unreasonably delayed in handling the administrative complaint, let alone any impact on its rights 

at present, and thus failed to establish its defense to the mootness of its claims. 

In any case, “[d]eclaratory judgment is a remedy committed to judicial discretion[,]” and 

it is clearly not warranted here. Chamber of Com. of U.S. of Am. v. U.S. Dep’t of Energy, 627 

F.2d 289, 292 (D.C. Cir. 1980) (per curiam) (quoting A.L. Mechling Barge Lines, Inc. v. United 

States, 368 U.S. 324 (1961)). Even where the allegedly harmful behavior “may have some 

continuing effect[,]” courts “will dismiss the matter ... pursuant to the court’s discretionary 

authority” where “the present controversy had become [] attenuated and remote[.]” Id. In this 

case, any possible impact declaratory judgment might have at this stage of proceedings is 

speculative and attenuated. Heritage Action has not established that such a judgment would 

impact the lawsuit brought against it by the Campaign Legal Center, nor explained why the judge 

in that proceeding is not capable of considering and addressing its arguments in that action. And 

for the reasons detailed infra p. 30, plaintiff has provided no evidence that an agency policy of 

“concealment” exists, much less that it is likely to be applied to plaintiff in the future. Thus, 

even if a declaratory judgment is not deemed to be entirely ineffectual, the Court should 

nonetheless exercise its discretion and dismiss this matter on prudential grounds. 

In sum, because plaintiff now has the information it seeks as to all MURs at issue here, 

interim events have ended the effects of the alleged harm to plaintiff, and the first requirement 

for mootness is plainly met. See Doe v. Harris, 696 F.2d 109, 111 (D.C. Cir. 1982). There is no 

longer any possibility that the alleged harm would be “redressed by a favorable decision.” 

Lujan, 504 U.S. at 561. 

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C. Plaintiff Has No Reasonable Expectation That the Alleged Wrong Will Be 

Repeated 

Given that Heritage Action is clearly in possession of all the relief it sought in this matter, 

the only way it can avoid a finding of mootness is to demonstrate that it has a “reasonable 

expectation . . . that the alleged violation will recur.” Doe, 696 F.2d at 111 (internal citations 

omitted). Plaintiff clearly cannot make such a showing. It has not plausibly alleged that the 

Commission ever had a policy to unlawfully conceal enforcement records, let alone that such a 

policy is likely to be followed in the future in a way that would cause harm to plaintiff. 

1. There Is No Evidence That Plaintiff Will Suffer the Harm It Alleges in 

the Future by Being Subject to Any FEC Enforcement Proceeding, 

Much Less One in the Specific Procedural Posture It Has Identified 

Here 

Plaintiff does not allege that it is currently a party in or subject to any FEC enforcement 

proceeding, nor that it is likely to be in the future. However, even if plaintiff could do so, this 

would not be enough. To avoid a dismissal on mootness grounds plaintiff must demonstrate that 

the “threatened injury,” here the alleged failure to disclose documents in a MUR that has been 

effectively terminated, “must be certainly impending[.]” Klayman, 142 F. Supp. 3d at 184 

(citing Clapper, 568 U.S. at 409). Simply put, plaintiff has offered no evidence to suggest that it 

will again suffer the injuries it has alleged occurred here in only a limited number of MURs. 

Plaintiff’s only argument regarding the possibility of future injury is that the information 

it seeks “is vital to a party like Heritage Action that, while not a political committee, regularly 

engages in the public debate on important issues and policy makers that could expose it to FEC 

complaints or disclosure obligations and is currently defending a citizen suit alleging a violation 

of FECA.” (MSJ at 15.) However, the mere fact that plaintiff engages in activity subject to 

public laws and regulations cannot meet its burden to demonstrate that the alleged wrong will be 

repeated for purposes of avoiding mootness. See Aulenback, 103 F.3d at 162 (finding claims 

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moot even where plaintiff might be subject to enforcement “on the basis of as-yet undetermined 

violations” because plaintiff was “currently in a position that is practically no different from any 

other” entity subject to public laws). And a party like plaintiff may not invoke “the specter of 

continuing legal harm” as a defense to mootness “when such harm is merely hypothetical and 

speculative.” In re Burrell, 415 F.3d 994, 999 (9th Cir. 2005) (citing Koppers Indus., Inc. v. U.S. 

E.P.A., 902 F.2d 756, 758 (9th Cir.1990)). 

Courts have repeatedly found that the kind of speculation in which plaintiff engages, 

without evidence, that it “may be a potential defendant in a future investigation” is insufficient to 

support jurisdiction under Article III. See, e.g., Paging Sys., Inc. v. F.C.C., No. 10-1097, 2010 

WL 5121962, at *1 (D.C. Cir. Aug. 30, 2010) (per curiam) (granting motion to dismiss) (“Bare 

allegations are insufficient . . . to establish . . . standing to seek judicial review of administrative 

action.”) (citing Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)); Cato Inst. v. Sec. & 

Exch. Comm'n, 4 F.4th 91, 96 (D.C. Cir. 2021) (affirming lower court’s grant of motion to 

dismiss for lack of standing) (“When assessing standing at any stage of the litigation, we do not 

accept inferences that are unsupported by the facts alleged in the complaint.”) (citing In re U.S. 

Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019)). The mere 

theoretical possibility of future enforcement proceedings cannot suffice, because any “threatened 

injury must be certainly impending.” Klayman, 142 F. Supp. 3d at 184 (citing Clapper, 568 U.S. 

at 409); see Belmont Abbey Coll. v. Sebelius, Civ. No. 11-1989 (JEB), 2012 WL 3861255, at *3 

(D.D.C. Sept. 5, 2012) (“The threat of future litigation is inadequate to satisfy the imminentinjury component of the standing doctrine.”) (citing City of Orville v. FERC, 147 F.3d 979, 987 

(D.C. Cir. 1998)). And as noted supra pp. 23-24, requests for declaratory relief are subject to 

these principles. See Aulenback, 103 F.3d at 161 (“[T]he basic question under Article III of the 

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Constitution is ‘whether the facts alleged, under all the circumstances, show that there is a 

substantial controversy, between parties having adverse legal interests, of sufficient immediacy 

and reality to warrant the issuance of a declaratory judgment.’”) (quoting Preiser v. 

Newkirk, 422 U.S. 395, 402 (1975)). 

In sum, recent developments have provided plaintiff with all of the relief it seeks, and as 

a result plaintiff is in a position that is practically no different from any other entity that engages 

in political activities. Plaintiff has offered no evidence to suggest it will be the subject of future 

enforcement proceedings, let alone that it will be denied documents in the manner that it has 

alleged here. Plaintiff thus faces no “cognizable danger of recurrent violation” that could justify 

declaratory relief in this case. Chamber of Commerce, 627 F.2d at 292. 

2. The Voluntary-Cessation Exception to Mootness Does Not Apply, and 

This Case Would Be Moot Even If the Exception Did Apply 

Plaintiff has argued that this matter was not moot because “the FEC cannot dodge judicial 

review of its concealment policy by voluntarily disclosing records in MUR 7516 while 

maintaining the policy in other cases” (MSJ at 18), but that claim is insufficient for plaintiff to 

avoid mootness here. It is true that an exception to mootness applies when a defendant’s 

“voluntary conduct” is “[t]he only conceivable basis for a finding of mootness,” and that such 

voluntary cessation of a challenged practice does not moot a case unless “subsequent events 

ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected 

to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 

(2000) (internal quotation marks omitted). Nevertheless, this matter is moot, both because this 

exception does not apply, and because the facts of this case easily meet the standard for 

mootness resulting from a defendant’s voluntary cessation of allegedly harmful conduct. 

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First, the voluntary cessation exception to mootness does not apply because the 

Commission has never had a “concealment policy,” hence there is no wrongful conduct to cease. 

The Commission previously detailed the history of its enforcement proceedings, which belies 

plaintiff’s efforts to establish a general concealment policy through anecdotes. (See MTD at 23-

25.) For instance, in the roughly four years since the administrative complaint against plaintiff in 

MUR 7516 was filed, the agency has closed at least 594 MURs.

22 Plaintiff alleged — without 

sufficient evidence — that seven MURs had been wrongly held open, but even assuming the 

truth of that claim, seven matters out of 594 is far short of the threshold necessary to establish 

that the Commission ever adopted a “policy” that can meet the APA’s requirement to identify a 

“final ... discrete agency action[.]” (See MTD at 20-26; Reply at 17-20; MSJ Opp. at 34-37.) 

Indeed, plaintiff has not even alleged that a majority of FEC Commissioners favored such a 

course of action, and three Commissioners cannot establish any policy or regulation on behalf of 

the agency. See 52 U.S.C. § 30106(c) (“All decisions of the Commission with respect to the 

exercise of its duties and powers under the provisions of this Act shall be made by a majority 

vote of the members of the Commission.”). The Commission cannot voluntarily terminate a 

policy that was never in place. 

Second, even assuming arguendo that plaintiff had identified a “practice” or “policy” by 

the FEC to conceal records, it was not ended in response to this lawsuit or any other. The 

voluntary-cessation exception to mootness is aimed “at party manipulation of the judicial process 

through the false pretense of singlehandedly ending a dispute,” and thus “presupposes that the 

FEC, Status of Enforcement – Fiscal Year 2022, Second Quarter (01/01/22-03/31/22) 4, 

https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_Second_Quarter_2022_05-06-22_Redacted.pdf 

(reflecting matters closed in the agency’s fiscal years 2019-21 and first two quarters of fiscal 

year 2022). 

31 

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infringing party voluntarily exercises its own unilateral power not only to terminate the suit and 

evade judicial review, but also to ‘pick up where he left off’ and complete the devious ‘cycle’ 

after the litigation is dismissed.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 

920 F.3d 1, 15 (D.C. Cir. 2019) (per curiam) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 

91 (2013)). 

Here, the reason for the closure of the MURs at issue here is public and straightforward. 

As the Commission has previously articulated, the composition of the Commission recently 

changed, with Dara Lindenbaum sworn in as Commissioner on August 2, 2022. See supra pp. 

10-11. Soon thereafter, on August 29, 2022, there were successful votes to close the file in each 

of the MURs at issue that had not already closed. During a committee hearing before the U.S. 

Senate in April of 2022 regarding Commissioner Lindenbaum’s nomination to the Commission, 

Ms. Lindenbaum clearly expressed her view that such proceedings should be closed. See supra 

p. 10 & n.11. These events establish that it was simply a difference in views between 

Commissioner Lindenbaum and her predecessor regarding the best approach to handling split 

votes in a handful of enforcement matters, rather than any effort to manipulate this litigation, that 

drove the dismissal of these MURs. On the other hand, plaintiff has offered no evidence that the 

Commission closed the MURs at issue to evade judicial review, nor has it rebutted the 

straightforward explanation provided above. Thus, there is no evidence that the Commission 

sought to moot plaintiff’s lawsuit with its “voluntary conduct.” Friends of the Earth, 528 U.S. at 

189. 

In fact, the Commission’s longstanding practice is to resolve MURs in a timely way and 

then disclose materials important to its decisions in accord with its established disclosure policy. 

See supra pp. 1-4. Far from holding matters open in an aberrant way, the Commission has 

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continued the regular closing of matters, including an additional 137 MURs in the two most 

recent fiscal quarters.23 Indeed, the agency closed more MURs in its most recent fiscal year than 

in any year since 1995.24 Just as there is no evidence that the Commission ever had a 

“concealment policy,” plaintiff has offered no evidence that the Commission will seek in the 

future to “pick up where [it] left off” with regard to the type of events about which plaintiff 

complains, and such an inference that would be highly implausible here. Guedes, 920 F.3d at 15 

(quoting Already, LLC, 568 U.S. at 91). The sole evidence that plaintiff has offered as to the 

Commission’s future intentions are public statements by FEC Commissioner Weintraub 

explaining her prior votes not to dismiss certain MURs. (Notice of Additional Evidence at 1-2 

and Exh. A.) Recently, Commissioner Weintraub issued a public statement offering a more 

comprehensive explanation of her votes on matters including those at issue here, such as votes to 

close the administrative file and votes to maintain the confidentiality of certain records. See 

supra pp. 15-16 (describing Weintraub Statement). But on a Commission with six members, one 

Commissioner is not empowered to enact such a course of action on her own. See 52 U.S.C. 

§§ 30106(c), 30107(a); cf. Guedes, 920 F.3d at 15 (“implementing this course lies beyond the 

unilateral legal authority of any of the named defendants”). Moreover, the MURs at issue here 

were recently closed by the Commission — an action which has customarily required four votes 

23 FEC, Status of Enforcement – Fiscal Year 2022, Third Quarter (04/01/22-06/30/22) 4 

https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_for_the_Third_Quarter_FY_2022.pdf (noting 64 

matters closed); FEC, Status of Enforcement – Fiscal Year 2022, Fourth Quarter (07/01/22-

09/31/22) 4 https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_Report_for_the_Fourth_Quarter_of_FY_2022.pdf 

(noting 73 matters closed). 

24 FEC, Enforcement Statistics for Fiscal Years 1977-2023 

https://www.fec.gov/resources/cmscontent/documents/enforcementstats1977to2023_mBEYxUM.pdf. 

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— despite Commissioner Weintraub’s opposition to closing some (though not all) of these files. 

Whatever the significance of the handling of the handful of now-closed MURs at issue here, 

there is certainly no evidence of any ongoing Commission “policy” with regard to the claims in 

plaintiff’s complaint. 

Third, even assuming the FEC was required to meet the heightened burden for mootness 

as a result of its voluntary cessation of harm, that burden is easily met here. Even where the 

voluntary-cessation doctrine applies, a matter is moot “once it is ‘absolutely clear’ that 

challenged conduct cannot ‘reasonably be expected to recur[.]’” Already, LLC, 568 U.S. at 97 

(quoting Friends of the Earth, 528 U.S. at 190; Lujan, 504 U.S. at 560). In such cases “the fact 

that some individuals may base decisions on ‘conjectural or hypothetical’ speculation does not 

give rise to the sort of ‘concrete’ and ‘actual’ injury necessary to establish Article III standing.” 

Id. In other words, if there is no reasonable basis to believe the challenged conduct will recur, 

mootness is established, even if it was the result of a defendant’s voluntary conduct. 

Because the Commission never had nor carried out a “concealment policy,” there is no 

reason to suspect that the alleged policy is likely to recur with respect to any respondent, let 

alone plaintiff in particular, other than the reasoned views of a single Commissioner who cannot 

unilaterally impose such a policy at the Commission. See 52 U.S.C. § 30106(c). Plaintiff has the 

documents it sought with respect to all MURs it claims were improperly held open, and the 

Commission could not now conceal these documents even if it were inclined to do so. Even 

where a party must meet a heightened burden to show mootness due to its voluntary cessation of 

conduct, a claim is still moot where it is entirely “speculative” that any similar claim would arise 

in the future. Deakins v. Monaghan, 484 U.S. 193, 200, n. 4 (1988) (dismissing matter as moot 

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because the challenged action, pursuing a claim in court, could not be resumed in “this or any 

subsequent action,” as opposed to one in which a defendant is “free to return to his old ways.”). 

CONCLUSION 

For the foregoing reasons, plaintiff’s complaint should be dismissed in its entirety. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

January 4, 2023 (202) 694-1650 

35 
 

Case 1:22-cv-01422-CJN Document 39 Filed 01/04/23 Page 46 of 46 

CERTIFICATE OF SERVICE 

I hereby certify that on January 4, 2023, I served the foregoing pursuant to Fed. R. Civ. P. 

5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

36