IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JOHN DOE 1, et al., ) 

) 

Plaintiffs, ) 

) 

v. ) Civil Action No.: 17-cv-2694 (ABJ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

_______________________________________) 

[PROPOSED] PLAINTIFFS’ MEMORANDUM IN RESPONSE TO NEW ISSUES 

RAISED IN DEFENDANT’S SURREPLY AND IN SUPPORT OF MOTION FOR 

PRELIMINARY INJUNCTION

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In its surreply, the Federal Election Commission (“FEC”) makes a number of new 

arguments that it could have raised, but did not, in its initial response to Plaintiffs’ motion. 

Accordingly, Plaintiffs submit this response to address those new arguments.1

The FEC’s surreply amounts to an assertion that it has near-unfettered discretion to decide 

when to brand a person a “money launder[er]” and a lawbreaker, even where no finding by the 

agency has been made as to guilt and where the subject has neither been notified nor given an 

opportunity to respond. Ex. C.2 The FEC’s anodyne presentation of its authority ignores the reality 

of this case: In the absence of relief from this Court, Plaintiffs will be publicly slandered by an 

agency wielding the imprimatur of the United States government. If the FEC desires to name and 

shame Plaintiffs, it must follow the law before it can do so. Disclosure is not authorized under the 

Federal Election Campaign Act (“FECA”) or the FEC’s regulations, is prohibited under the 

Freedom of Information Act (“FOIA”), and is impermissible under the First Amendment. 

I. ARGUMENT 

A. There is No Basis under FECA or the FEC’s Regulations to Release Plaintiffs’ 

Identities 

It is clear from the FEC’s surreply that it is unable to define or explain the nature of any 

“proceedings” regarding Plaintiffs. Indeed, two Commissioners described the process here as 

“irregular.” Ex. A at 114. It is no surprise that the FEC fails to grapple with the conclusions of its 

own Commissioners; a close examination of the administrative process here reveals no basis for 

disclosing Plaintiffs’ identities: No proceedings were commenced or terminated as to them. 

In the face of this irregularity, the FEC attempts to cloak itself in the familiar mantle of 

1

 Given the nature of this response, Plaintiffs do not address every point raised in the FEC’s 

surreply. Plaintiffs seek to address only those new or “newly developed” (in the FEC’s parlance) 

arguments that Plaintiffs should have had the opportunity to reply to in their initial reply. Plaintiffs 

do not waive any points raised in their reply. 

2

 Plaintiffs refer to the exhibits attached to their Reply throughout. 

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agency deference, ignoring the plain and unambiguous language of the statute and its own 

regulations. See In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001). Moreover, at no point in 

its surreply does the FEC acknowledge its role in protecting the First Amendment rights of those 

it investigates, which the D.C. Circuit has squarely held extends to protecting the identities of those 

swept up in FEC investigations. See AFL-CIO v. FEC, 333 F.3d 168, 175-76 (D.C. Cir. 2003). 

The FEC’s new interpretations amount to a post hoc attempt to rationalize the result that it 

desires. For the first time, the FEC argues that the vote regarding Plaintiffs was an “internally 

generated” matter. However, the FEC also argues that disclosure is appropriate in connection with 

MUR 6920. For the reasons stated below, the FEC’s arguments are unavailing. 

1. There Were No Proceedings Against Plaintiffs

The FEC argues, for the first time, that the vote regarding Plaintiffs arose as an “internallygenerated matter.” Surreply at 13. This assertion demonstrates the post-hoc nature of the FEC’s 

reasoning. First, this contention is inconsistent with the FEC’s prior representations. The FEC 

asserted in its original response that the “proceedings” against Plaintiffs flowed directly from the 

administrative complaint and were concluded with the same vote that concluded MUR 6920. 

Resp. at 1-2. This assertion is also contradicted by the administrative record, which makes no 

reference to an internally-generated matter, and where the Third General Counsel’s Report making 

recommendations against Plaintiffs was issued as part of MUR 6920 and noted that the matter 

began with a complaint. Ex. A at 0026. The FEC’s internal policy documents define what an 

internally-generated matter is and how one is opened, and it thus appears, based on the FEC’s new 

position, that none of those policies were followed here.3

3

See Office of the General Counsel, OGC Enforcement Manual at 10 (June 2013); Federal Election 

Commission, Guidebook for Complainants and Respondents on the FEC Enforcement Process at 

10, 13 (May 2012); FEC Directive No. 6; Agency Procedure for Notice to Respondents in NonCase 1:17-cv-02694-ABJ Document 43 Filed 01/24/18 Page 3 of 12
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The post-hoc nature of the FEC’s argument is also revealed by its failure to address the 

notice provisions that it implicitly recognizes were violated in this case. The FEC does not contest 

that it failed to give notice to Plaintiffs of the reason to believe vote and the opportunity to respond, 

as required either by its policies or 52 U.S.C. § 30109(a)(1), and that it failed to give Plaintiffs 

notice of any vote that “otherwise terminate[d] its proceedings,” as required by 11 C.F.R. 

§ 111.9(b). The FEC attempts to deflect Plaintiffs’ arguments by asserting that the lawfulness of 

the reason to believe vote is not before the Court. Surreply at 10 n.3. The FEC misses the point. 

That the FEC did not provide notice to Plaintiffs upon termination of any “proceedings” suggests 

that no such proceedings took place. It is telling that the FEC would rather admit that it violated 

FECA and its regulations than give up on branding Plaintiffs as lawbreakers. 

The FEC’s belated contention carries certain implications. Much of the FEC’s arguments 

for disclosure of Plaintiffs’ names depends on the public interest that is vindicated by a Subsection 

(a)(8) appeal. However, that appeal is only available from an order dismissing a complaint, and 

then only by the complainant who filed it. There is no general authority to challenge FEC 

enforcement decisions. If the FEC is correct that the vote regarding Plaintiffs arose from an 

internally generated matter, then there can be no Subsection (a)(8) interest to vindicate and much 

of the FEC’s argument for disclosing Plaintiffs’ names accordingly collapses. 

2. Disclosure is Inappropriate in Connection with MUR 6920

If there were no “proceedings” against Plaintiffs, then disclosure could only be possible 

through MUR 6920. Plaintiffs have already explained why whatever discretion the FEC possesses 

Complaint Generated Matters, 74 Fed. Reg. 38,617, 38,617 (Aug. 4, 2009). Among other things, 

these policies require notice and an opportunity to be heard prior to a reason to believe vote. See

74 Fed. Reg. at 38,617 (“This agency procedure is intended to provide respondents in noncomplaint generated enforcement matters with notice of the basis of the allegations, and an 

opportunity to respond.”). No such opportunity was provided here. 

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in connection with MUR 6920 is constrained by the language of the statute, FOIA, and the First 

Amendment. Two newly developed points, however, merit brief comment. 

The language of Subsection (a)(4)(B)(ii) is plain and unambiguous, triggering disclosure 

only where “the Commission makes a determination that a person has not violated this Act.” 52 

U.S.C. § 30109(a)(4)(B)(ii). The FEC argues that the term “determination” is ambiguous, 

Surreply at 10, but even if that is the case, the second part of the Subsection, “that a person has not 

violated this Act,” is not. A vote where the FEC fails to find reason to believe that a violation 

occurred does not determine that the subject of that vote did not violate FECA. Indeed, at least 

one Commissioner continues to assert that Plaintiffs are “money launder[ers]” who got away with 

it. Ex. C. Contrary to the FEC’s assertions, the district court’s decision in AFL-CIO supports 

Plaintiffs’ position, as the determination that there was no probable cause garnered a majority of 

Commissioners. No such determination was made here, so the statute cannot authorize disclosure. 

The FEC asserts that disclosure of Plaintiffs’ identities in a MUR in which they were not 

respondents is necessary for a Subsection (a)(8) appeal. The FEC fails to articulate any reason 

why Plaintiffs’ names are necessary to challenge its decision against the MUR 6920 respondents, 

aside from its general interest in accountability, addressed below. The FEC also fails to explain 

why Subsection (a)(8) is relevant at all, when there was no order from the FEC dismissing the 

administrative complaint. Moreover, the cases the FEC cites, such as Democratic Congressional 

Campaign Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 1987), are irrelevant with respect to 

Subsection (a)(4)(B)(ii). Subsection (a)(8)’s review provision is triggered “by an order of the 

Commission dismissing a complaint,” whereas Subsection (a)(4)(B)(ii)’s disclosure provision is 

triggered by “a determination that a person has not violated this Act.” The FEC’s cases are 

concerned with how a court should conduct its review of the administrative record so it can 

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determine whether the FEC’s dismissal was “contrary to law.” Whether there is a “determination” 

of a violation is irrelevant with respect to Subsection (a)(8), which encompasses dismissal for any 

reason and for which some controlling statement must be identified to permit court review. 

B. FOIA Exemption 7(C) Prohibits Disclosure of Plaintiffs’ Identities and Such 

Disclosure is Unnecessary

The FEC argues, for the first time in its surreply, that FOIA Exemption 7(C) does not apply 

in this case, and makes sweeping assertions of its inherent authority. The FEC fails to recognize 

the constraints FOIA Exemption 7(C) places on whatever discretion it possesses. In addition, its 

arguments regarding the necessity of disclosing Plaintiffs’ names are flawed, and the cases it cites 

undermine the FEC’s position. 

Disclosure of Plaintiffs’ identities is prohibited by the Administrative Procedure Act, 

which provides Plaintiffs with a cause of action to challenge the arbitrary and capricious disclosure 

of their identities under FOIA Exemption 7(C). This is the cause of action that plaintiffs raised in 

AFL-CIO and the court there held that Exemption 7(C) prohibited the disclosure of names in the 

FEC’s investigative file—“regardless of the public interest asserted.” AFL-CIO v. FEC, 177 F. 

Supp. 2d 48, 61 (D.D.C. 2001). Moreover, the FEC’s Disclosure Policy expressly notes that it 

does not alter any policy requiring the FEC to comply with FOIA, see Disclosure of Certain 

Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702, 50,704 (Aug. 2, 2016), and 

the FEC’s regulations provide that it will not release information subject to Exemption 7(C) in 

response to a FOIA request, see 11 C.F.R. § 4.5(a)(7)(iii). FOIA itself does not compel the 

disclosure at issue here; indeed it allows for protection of individual privacy. See 5 U.S.C. 

§ 552(a)(2) (accompanying note). The FEC also challenges for the first time whether Exemption 

7(C) may be raised in a “reverse FOIA” action. See Surreply at 14-16. The FEC did not address 

the holdings of other courts in this District that clearly provide for such relief, even in light of the 

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general FOIA principles that the FEC identifies. See Tripp v. Dep’t of Defense, 193 F. Supp. 2d 

229, 239 (D.D.C. 2002); AFL-CIO, 177 F. Supp. 2d at 62. The FEC thus asks this Court to depart 

from precedent in this District. 

The FEC’s basis for departing from this line of precedent is exceptionally thin: a single, 

misinterpreted line in the SafeCard decision. Surreply at 15. In that cited sentence, the D.C. 

Circuit noted that, because the conditions triggering the sole exception to the categorical rule 

against disclosure did not appear (the “evidence” in the line the FEC quoted), disclosure was not 

compelled. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). This 

observation cannot support the FEC’s assertion that it has unfettered discretion to disclose 

information protected by Exemption 7(C). Indeed, the Supreme Court considered a reverse-FOIA 

action in FCC v. AT&T, Inc., 562 U.S. 397 (2011), where a party argued that Exemption 7(C) 

forbid disclosure of their identity. 

The FEC acknowledges the holding in AFL-CIO only to argue that, because the documents 

at issue in that case were “investigatory materials,” that case is inapplicable. Surreply at 16. There 

is nothing in the AFL-CIO decision that suggests its holding is limited to the kinds of documents 

that were before it; those documents were merely the ones being challenged. Exemption 7(C) is 

not limited to “investigatory materials,” it reaches all “records or information compiled for law 

enforcement purposes.” 5 U.S.C. § 552(b)(7)(C) (emphasis added). There can be no doubt that 

every record in the FEC’s file that identifies Plaintiffs was compiled as part of the FEC’s law 

enforcement investigation. To the extent the FEC is arguing there are documents in its file that 

were not compiled for law enforcement purposes, the Supreme Court has squarely held “that 

information initially contained in a record made for law enforcement purposes continues to meet 

the threshold requirements of Exemption 7 where that recorded information is reproduced or 

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summarized in a new document prepared for a non-law-enforcement purpose.” FBI v. Abramson, 

456 U.S. 615, 631-32 (1982). 

The other threshold requirements for Exemption 7(C) have been met. John Doe 1, a natural 

person, undoubtedly has a privacy interest protected by Exemption 7(C). Another court in this 

District has found an agency’s decision to disclose “information regarding some individuals if the 

references to them dealt only with their professional capacities” to be “unsupportable.” Alexander 

& Alexander Servs., Inc. v. SEC, No. 92-1112 (JHG), 1993 WL 439799, at *10 (D.D.C. Oct. 19, 

1993). The case that the FEC cites to support its position in fact provides protection for John Doe 

1. In Washington Post Co. v. U.S. Dep’t of Justice, the D.C. Circuit held that “the protection 

accorded reputation would generally shield material when disclosure would show that an 

individual was the target of a law enforcement investigation.” 863 F.2d 96, 101 (D.C. Cir. 1988) 

(emphasis added). That is what would happen here if John Doe 1’s name was revealed. The FEC’s 

position, that John Doe 1 was not “personally implicate[d] in an alleged FECA violation,” also 

seriously undermines its contentions that disclosure of John Doe 1’s name is essential to fulfill any 

of the purposes the FEC identifies. If John Doe 1 is only relevant in his capacity as the trustee of 

John Doe 2, then there is no reason for the FEC to disclose anything more. 

The fact that John Doe 2 is a trust also does not foreclose the protections of Exemption 

7(C). As the government recognized in FCC v. AT&T, Exemption 7(C) can shield even a 

corporation’s name where such disclosure would necessarily reveal protected information about a 

natural person. See Pet’r’s Br. at 36 n.11, FCC v. AT&T, No. 09-1279, 2010 WL 4496009 (U.S. 

Nov. 9, 2010). The D.C. Circuit has recognized this principle. See Multi Ag Media LLC v. Dep’t 

of Agriculture, 515 F.3d 1224, 1230 (D.C. Cir. 2008). Disclosing John Doe 2’s name presents a 

risk of identifying its trustee, meaning John Doe 2’s identity is likewise protected. 

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With all of the requirements for Exemption 7(C) satisfied, it operates as a categorical bar 

to the disclosure of Plaintiffs’ identities, which cannot be balanced against the interests the FEC 

identifies. See AFL-CIO, 177 F. Supp. at 61. However, even if these interests were implicated, 

disclosure of Plaintiffs’ identities cannot further them. The FEC asserts that it may disclose 

Plaintiffs’ identities merely because they were “involved” in the FEC’s investigation, Surreply at 

19, but none of the cases that the FEC cites support this conclusion. With one exception, none of 

the cases involve the disclosure of targets or witnesses in law enforcement investigations. Instead, 

they involve the identities of those who lodged complaints or comments with the government4 or 

who purchased seized property from the government.5 While there may be an interest in disclosing 

the names of individuals who affirmatively sought to influence government action, these cases 

draw a distinction between them and individuals like Plaintiffs who have become involved “in law 

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

Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001). 

The one case the FEC cites that involves the target of an investigation reinforces Plaintiffs’ 

position. In CREW v. U.S. Dep’t of Justice, the target of the investigation publicly admitted he 

had been under investigation. 746 F.3d 1082, 1091-92 (D.C. Cir. 2014). The D.C. Circuit held 

that the agency could not withhold an entire document based on the fact that the target of an 

investigation was identified therein, but it would be appropriate, under SafeCard, to redact “the 

names and identifying information of private citizens mentioned in law enforcement files.” Id. at 

4 Edelman v. SEC, 239 F. Supp. 3d 45, 55 (D.D.C. 2017) (individuals who lodged complaints with 

SEC); People for the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 306 (D.D.C. 2007) 

(individuals who wrote letters regarding sign); Judicial Watch of Fla., Inc. v. Dep’t of Justice, 102 

F. Supp. 2d 6, 18 (D.D.C. 2000) (individuals who wrote letters regarding Independent Counsel 

Act); Lardner v. U.S. Dep’t of Justice, No. Civ.A.03-0180 (JDB), 2005 WL 758267, at *18 

(D.D.C. Mar. 31, 2005) (individuals who wrote comments in support of pardon applicants). 

5 Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 726 (D. Md. 2001). 

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1094. This is the relief that Plaintiffs seek, supported uniformly by the cases the FEC itself cites. 

C. The FEC Cannot Justify its Disclosure Under the First Amendment

The FEC all but admits that its power to disclose Plaintiffs’ identities is bounded by the 

First Amendment, and therefore the FEC must identify an accountability or deterrence interest that 

overwhelms the well-established free speech interests at issue.6 While the FEC identifies these 

interests, it wholly fails to explain why Plaintiffs’ identities are necessary to further these interests. 

Disclosure of Plaintiffs’ identities is not necessary to further any newly articulated interest 

in accountability. Surreply at 7-8, 23. The FEC asserts disclosure is warranted so that the public 

can determine whether the FEC’s decision-making is influenced by bias or partisanship. Id. This 

interest is inapplicable here, where Plaintiffs’ identities would add nothing to what the FEC has 

already disclosed. A fulsome record of the FEC’s decision-making, and the reasons for its 

decision, is already available. The Commissioners have traded statements that discuss the FEC’s 

enforcement process and priorities. The administrative complainants have filed their appeal. A 

wealth of information has been disclosed, and despite its best efforts the FEC has failed to 

articulate any convincing reason why Plaintiffs’ identities would provide any further information 

about how the FEC carries out its duties. The sharp disagreement between Commissioners on 

party lines and the political affiliations of the MUR 6920 respondents allows for full evaluation of 

any partisan bias at play in the FEC’s decision. If there is any harm to the FEC’s accountability 

6

 The FEC faults Plaintiffs for supposedly not recognizing the governmental interests in Buckley

and its progeny that support disclosure. Surreply at 21-22. Plaintiffs did not ignore those interests; 

they are simply inapposite to this case. Those interests support the disclosure requirements in 

FECA, which are not implicated when there has been no finding that any of those requirements 

were violated by Plaintiffs. However, the observation in Buckley and its progeny that disclosure 

chills speech applies to all disclosure. The D.C. Circuit recognized that, in the context of the 

disclosure of the investigative record, the interests in deterrence and accountability are at issue, 

not the interests supporting FECA generally. See AFL-CIO, 333 F.3d at 179. 

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interest, it is self-inflicted. Plaintiffs should not have their well-established privacy and speech 

interests trampled because the FEC fell short in initiating proceedings or making findings with 

respect to them. The only purpose to disclosing Plaintiffs’ names is to unjustifiably implicate them 

in wrongdoing. 

The FEC asserts that the core of its deterrence interest is to “provide the regulated 

community with a full picture of the actions” at issue. Surreply at 23 (emphasis added). Disclosing 

Plaintiffs’ identities says nothing about the actions any respondent took, nor does it shed light on 

any “relationships.” Id. The FEC has already disclosed its findings regarding the flow of funds. 

Whether Plaintiffs committed any wrongdoing has not been determined, and thus disclosing their 

identities can provide no deterrence information to the regulated community. In short, disclosing 

Plaintiffs’ identities is not necessary or even helpful for the interests the FEC has identified. 

The only conclusion that can be drawn from the FEC’s assertions is that it seeks to “instill 

fear” in those it regulates so that they will refrain from engaging in political activity that may very 

well be legal out of concern that they will be publicly branded as lawbreakers by the very agency 

tasked with protecting their First Amendment rights. The FEC’s actions thus risk chilling speech. 

For good reason prosecutors are forbidden from making public comment about the guilt of those 

they accuse. See Standard 3-1.10(c), American Bar Association, Criminal Justice Standards for 

the Prosecution Function. The same result should obtain here. 

II. CONCLUSION 

For the reasons set out above, Plaintiffs respectfully request that the Court grant their 

motion.7

7

 Plaintiffs reiterate their request that, if the Court denies their motion, it grant a stay of the denial 

pending appeal to the D.C Circuit pursuant to Fed. R. Civ. P. 62(c). 

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January 23, 2018 ` Respectfully submitted, 

/s/ William W. Taylor, III________ 

William W. Taylor, III (D.C. Bar # 84194) 

Adam Fotiades (D.C. Bar # 1007961) 

Dermot W. Lynch (D.C. Bar # 1047313) 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

afotiades@zuckerman.com 

dlynch@zuckerman.com 

Counsel for John Doe 1

/s/ Kathleen Cooperstein________________ 

Kathleen Cooperstein (D.C. Bar # 1017553) 

Michael Dry (D.C. Bar # 1048763) 

Vinson & Elkins 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, D.C., 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

cmargolis@velaw.com 

kcooperstein@velaw.com 

Counsel for John Doe 2

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