1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

JOHN DOE 1 & JOHN DOE 2, )

)

Plaintiffs, )

)

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

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FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

ORDER

Citizens for Responsibility and Ethics in Washington (“CREW”) and Anne Weismann

(collectively “CREW”) seek to intervene in this action as a matter of right under Federal Rule of 

Civil Procedure 24(a)(2). Mot. to Intervene by CREW and Mem. of P. & A. in Supp. [Dkt. # 22]

(“CREW’s Mot.”). The case concerns whether defendant, the Federal Election Commission, may 

make the names of plaintiffs, John Does 1 and 2, public as part of its release of its investigative 

file for Matter Under Review (“MUR”) 6920. CREW claims a right to intervene because it filed 

the administrative complaint that initiated MUR 6920. CREW’s Mot. at 1–2. Both plaintiffs and 

defendant oppose CREW’s motion, Pls.’ Mem. in Opp. to CREW’s Mot. [Dkt. # 33] (“Pls.’ 

Opp.”); Def. FEC’s Opp. to CREW’s Mot. [Dkt. # 35] (“Def.’s Opp.”), and this matter is fully 

briefed. See Reply in Supp. of CREW’s Mot. [Dkt. # 41] (“CREW’s Reply”). For the reasons 

set forth below, the Court will deny the motion, but will allow CREW to file an amicus curiae brief 

of no more than ten pages by February 12, 2018.

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I. FACTUAL BACKGROUND

In February 2015, CREW filed an administrative complaint concerning a $1.71 million

contribution to a political action committee, Now or Never PAC, which CREW alleged had been 

made by an unknown contributor to American Conservative Union and passed through to the PAC. 

See CREW’s Mot. at 2–3 (alleging the contribution violated 52 U.S.C. § 30122, which prohibits 

making political contributions in the name of someone other than the true contributor). The 

Federal Election Commission (“FEC” or the “Commission”) initiated an investigation, MUR 

6920, and in November 2017, it notified CREW that American Conservative Union, Now or Never 

PAC, and a third entity, Government Integrity, LLC, agreed as part of a conciliation agreement 

with the agency to pay a $350,000 civil penalty in connection with the matter. CREW’s Mot. at 3. 

The conciliation agreement concluded the FEC investigation, and the FEC closed MUR 6920. See

52 U.S.C. § 30109(a)(4)(A)(i).

Pursuant to its regulations and policy, the FEC makes specific materials in its investigative

files public after concluding an enforcement matter. See 11 C.F.R. § 111.20(a). The regulations 

require it to make the file public within thirty days of notifying the complainant and respondents 

that the matter has been terminated. Id. Plaintiffs’ names and other identifying information appear 

in the MUR 6920 file, and they asked the FEC to redact their identities from the file before 

publishing it. See Compl. [Dkt. # 12]. When the FEC declined to do so, plaintiffs filed this action

on December 18, 2017, seeking to enjoin the agency from releasing their names. See Compl. ¶ 2. 

In light of the thirty-day deadline for the agency to publish the enforcement file, the parties agreed 

that the FEC would publish the file with plaintiffs’ identities redacted, pending a decision in this 

case. See Min. Order. (Dec. 18. 2017); see also Def. FEC’s Notice [Dkt. # 20] (notice of 

publication).

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On December 20, 2017, CREW filed a Freedom of Information Act (“FOIA”) request with 

the FEC, requesting the unredacted administrative record for MUR 6920. CREW’s Mot. at 4. On 

January 12, 2018, the FEC denied the FOIA request; although it was of the view that the 

information should be released to CREW under FOIA, it withheld release in light of its agreement 

to await ruling in this case. See Def.’s Opp. at 3, 7.

Separately, on December 22, 2017, CREW filed suit against in the FEC under 52 U.S.C. 

§ 30109(a)(8), a provision of the Federal Election Campaign Act which allows a party “aggrieved 

by an order of the Commission dismissing a complaint filed by such party” to seek judicial review. 

CREW v. FEC, No. 17-2770-ABJ (D.D.C. Dec. 22, 2017), Compl. [Dkt. # 1] (“CREW’s

Compl.”).1

 CREW’s lawsuit challenges the votes of three Commissioners against finding “reason 

to believe the John Doe Trust and John Doe Trustee violated” federal election law, and the

agency’s dismissal of MUR 6920 without identifying “the true source” of the $1.7 million 

contribution. CREW’s Compl. ¶¶ 38, 44.

II. STANDARD OF REVIEW OF MOTIONS TO INTEREVE BY RIGHT

Rule 24(a)(2) requires a court to permit intervention on a timely motion to anyone who 

“claims an interest relating to the property or transaction that is the subject of the action, and is so 

situated that disposing of the action may as a practical matter impair or impede the movant’s ability 

to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 

24(a)(2).

 

1 CREW’s lawsuit is also pending before this Court.

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III. CREW DOES NOT SATISFY THE REQUIREMENTS TO INTERVENE AS OF 

RIGHT. 

Courts in this Circuit apply a four-prong test when deciding motions to intervene as of 

right: “(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally 

protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party 

to the action can be an adequate representative of the applicant’s interests.” Karsner v. Lothian, 

532 F.3d 876, 885 (D.C. Cir. 2008), quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. 

Cir. 1998) (calling these the “four prerequisites to intervene as of right”). The Court holds that 

CREW’s motion satisfies the first prerequisite to intervene as of right but not the other three.

A. CREW’s motion was timely.

 Plaintiffs assert that CREW’s motion is untimely and that allowing it to intervene now will 

cause undue delay since briefing on the merits is complete. Pls.’ Opp. at 2–3. The Court disagrees, 

and it will not predicate its denial of the motion on this basis. 

The timeliness requirement “is aimed primarily at preventing potential intervenors from 

unduly disrupting litigation, to the unfair detriment of the existing parties.” Roane v. Leonhart, 

741 F.3d 147, 151 (D.C. Cir. 2014) (citation omitted); see also WildEarth Guardians v. Jewell, 

320 F.R.D. 1, 3 (D.D.C. 2017) (discussing prejudice as a factor in determining whether motion 

was timely). But granting CREW’s motion at this time would not prejudice any parties. 

Plaintiffs’ motion for a temporary restraining order necessitated an expedited schedule for 

this case, see Fed. R. Civ. Pro. 65(b), but the need for expedition has been alleviated. The FEC’s 

obligation to publish the MUR 6920 file within thirty days of notice has been addressed with the 

publication of a redacted version of the file pending a ruling in this case. See Min. Order (Dec. 

18, 2017). The redaction of the names rendered plaintiffs’ motion for a temporary restraining 

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order moot, and their motion for a preliminary injunction has been merged with the merits of the 

case. Id. Plaintiffs’ interest are fully protected no matter how long it takes to decide the case.

Finally, the Court notes that the parties have filed a succession of supplemental pleadings 

that extended the briefing on the merits after CREW had filed its motion to intervene. See Def.’s 

Surreply [Dkt. # 37]; Pls.’ Response to Surreply [Dkt. # 42]. The Court needs time to review all 

of these briefs and write its opinion in any event. Since the Court can consider arguments 

submitted by CREW along with the rest of the pleadings, it finds that the request to intervene is 

not untimely and that no party will prejudiced by CREW’s arrival on the scene. But CREW has 

not satisfied the other requirements to intervene as of right. 

B. CREW has not demonstrated a legally protected interest in this case, which this 

case threatens to impair.

The second and third requirements to intervene by right require CREW to show a legally 

protected interest in the case, which the case threatens to impair. See Karsner, 532 F.3d at 885. 

This litigation concerns just one issue: the FEC’s disclosure requirements and the application of 

those requirements to plaintiffs. Plaintiffs are asserting both a privacy interest and a First 

Amendment interest in their anonymity, and the FEC is advancing the public’s right to know their 

identities. See Pls.’ Mot. for TRO [Dkt. # 13]; Def.’s Response to Mot. for TRO [Dkt. # 16]; 

Def.’s Surreply. Since CREW is also seeking to vindicate the public’s right to the same 

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information,2 and it has failed to identify a legally protected interest of its own that is at stake, 

intervention as of right will be denied.

CREW acknowledges that the disclosure rules “benefit the public as a whole,” CREW’s

Mot. at 6, but it also asserts its own more narrow interest: the organization claims a statutory right 

“to know precisely what plaintiffs seek to conceal – the source of the $1.71 million contribution”3

and “to seek judicial review of the FEC’s failure to take enforcement action against the funders of 

the $1.71 million contribution to Now or Never PAC.” CREW’s Mot. at 5, 7. But CREW is 

already seeking judicial review of that alleged failure in its own case, and the outcome of this 

litigation will not impair its ability to pursue that action in any way.

The Court notes at the outset that CREW’s argument that its statutory right to know the 

source of the $1.71 million constitutes its interest in this case assumes that the Doe plaintiffs were

in fact the source of the contribution. But this is not what CREW alleged in its lawsuit against the 

FEC. See CREW’s Compl. ¶¶ 3, 4 (alleging that the agency’s failure to “conclude whether the 

John Doe Trust . . . or whether some other entity or entities” are the unknown respondents in its 

 

2 “CREW is committed to protecting the right of citizens to be informed about the activities 

of government officials, ensuring the integrity of government officials, protecting our political 

system against corruption, and reducing the influence of money in politics. . . . To advance its 

mission, CREW uses a combination of research, litigation, advocacy, and public education to 

disseminate information about public officials and their actions, and the outside influences that 

have been brought to bear on those actions. . . . Publicizing violations of the FECA and filing 

complaints with the FEC service CREW’s mission of keeping the public, and voters in particular, 

informed about individuals and entities that violate campaign finance laws.” CREW’s Compl.

¶¶ 7, 8, 10.

3 CREW also asserts a right to know the identity of anyone who acted as a conduit for the 

contribution. CREW’s Reply at 4.

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administrative complaint is contrary to law) (emphasis added); id. ¶ 43 (alleging the investigation 

did not confirm whether the trust was the true source or if the contribution “originated elsewhere”). 

Moreover, the issue to be resolved in this case is whether the FEC is authorized to disclose 

plaintiffs’ identities as part of its public release of the bulk of the MUR 6920 file. The question of 

who may have served as the “true source” of the contribution is a different question, and CREW’s 

own lawsuit asks whether the FEC was statutorily obligated to find that out. See CREW’s Compl.

¶ 46 (seeking a declaration that the FEC violated the statute by not determining the true source of 

the contribution and an order for the agency to conform to the declaration). 

CREW asserts that a ruling in plaintiffs’ favor here would make it “exceedingly difficult” 

for it to prosecute its lawsuit against the FEC, CREW’s Mot. at 9, and prevent it “from ever 

learning [plaintiffs’] identities.” CREW’s Reply at 5. But CREW has not demonstrated how a 

decision in this case could impair its ability to challenge the FEC’s resolution of its administrative 

complaint. CREW does not explain why it would be more difficult to debate the legal issues it has 

raised using pseudonyms, and it has not shown that a ruling for plaintiffs in this case would 

preclude a later determination in the CREW case that more disclosure is required.4 

CREW argues that allowing it to intervene in this case would be consistent with cases 

granting FOIA requesters intervention in reverse FOIA cases. CREW’s Mot. at 9. A reverse FOIA 

case is an action in which a person whose information is about to be disclosed pursuant to FOIA 

seeks to enjoin the government from disclosing the information. Canadian Commercial Corp. v. 

Dep’t of Air Force, 514 F.3d 37, 39 (D.C. Cir. 2008). But while plaintiffs have cited FOIA case 

 

4 To be sure, a ruling in the FEC’s favor in this case would prevent any dispute about whether 

plaintiffs’ identities would need to be redacted in the administrative record in CREW’s lawsuit. 

But a decision in plaintiffs’ favor here is not determinative of whether CREW’s may obtain that 

information in its lawsuit.

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law in various pleadings, they are relying on the language of the Federal Election Campaign Act, 

and this is not a reverse FOIA case. The decision here will turn on different legal principles, see 

AFL-CIO v. FEC, 333 F.3d 168, 178 (D.C. Cir. 2003) (holding that the fact that the FEC “redacts 

information falling under one or more FOIA exemptions is no answer, since the Freedom of 

Information Act does little to protect the First Amendment interests at issue”), and CREW’s rights 

under FOIA may be adjudicated in its own FOIA proceedings.

In sum, the Court holds that CREW does not have a legally protected interest that this

action threatens to impair. At bottom, CREW’s interest is the public’s interest in having the FEC 

comply with its disclosure requirements under the law. This important but general public interest 

alone does not provide CREW grounds to intervene in this case. See Cascade Nat. Gas Corp. v. 

El Paso Nat. Gas Co., 386 U.S. 129, 149–50 (1967) (“It has been the consistent policy of this 

Court to deny intervention to a person seeking to assert some general public interest in a suit in 

which a public authority charged with the vindication of that interest is already a party.”); Envtl. 

Def. Fund, Inc. v. Costle, 79 F.R.D. 235, 243 (D.D.C.), aff’d, 12 E.R.C. 1255 (D.C. Cir. 1978)

(holding that intervention should be denied to entities seeking to “represent general interests shared 

by the entire populations of the intervening states”). The Court will deny CREW’s motion to 

intervene for this reason. 

C. The FEC is an adequate representative of CREW’s interests.

The Court will also deny the motion because it finds that the FEC can adequately represent 

CREW’s interest in this case. Courts in this Circuit have found that this requirement has been 

established in cases where the government’s and the intervenor’s interests may diverge during the 

course of litigation or if the intervenor’s individual interests in the matter are narrower than those 

of the government. See e.g., Fund For Animals, Inc. v. Norton, 322 F.3d 728, 736 (D.C. Cir. 

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2003); id. at 736 n.9 (listing cases). While the standard for meeting this requirement is “not 

onerous,” Fund for Animals, 322 F.3d at 735, quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 

192 (D.C. Cir. 1986), it is not satisfied when “it is clear that the party will provide adequate 

representation for the absentee.” United States v. AT&T, 642 F.2d 1285, 1293 (D.C. Cir. 1980). 

“Adequacy of representation must be assessed in relation to the specific purpose that intervention 

will serve” in the specific case at hand. Id.

CREW argues that because it is adverse to the FEC in its section 30109 lawsuit, the FEC 

cannot adequately represent CREW’s interests here. CREW’s Mot. at 11. But this argument is 

unpersuasive because on the matter at issue in this case, CREW’s position is identical to that of 

the agency, and the FEC has been adamant in its position that the disclosure of plaintiffs’ names 

is consistent with the Federal Election Campaign Act and the Constitution. CREW also posits that 

the agency is unlikely to appeal if plaintiffs prevail, and it suggests that this is another reason the 

FEC cannot be depended upon to represent its interests. CREW’s Mot. at 12 (asserting that “it 

appears that the FEC has not appealed a district court judgment” in more than ten years). But this

is a speculative concern; the FEC observes that many adverse district court decisions are not 

appealed because they are resolved on remand, and it points out that the specific disclosure policy 

being defended here was adopted by a unanimous vote of the Commission. Def.’s Opp. at 9–10. 

CREW relies on Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 

2015) in support of its position, CREW’s Mot. at 10–12, but Crossroads does not apply. In that 

case, Public Citizen filed an administrative complaint with the FEC against Crossroads Grassroots 

Policy Strategies. When the FEC dismissed the administrative complaint, Public Citizen sued and 

Crossroads moved to intervene as of right. 788 F.3d at 315. The district court held that the FEC 

could adequately represent Crossroad’s interests because their interests were aligned in defending 

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the legality of the FEC’s dismissal order. 788 F.3d at 321. The Circuit Court reversed, holding 

that the district court applied the wrong legal standard by “treating general alignment as 

dispositive.” Id. It found that even though the FEC and Crossroads agreed on the dismissal of the 

administrative complaint, they had different interests, because “they disagree[d] about the extent 

of the Commission’s regulatory power, the scope of the administrative record, and post-judgment 

strategy.” Id. The issues in that case involved “the under-enforcement of federal law and the 

authority of the FEC,” and if Public Citizen prevailed, the FEC “could seek to regulate Crossroads 

directly and immediately.” Id.

This case is easily distinguishable. It does not address the legality of the dismissal of 

CREW’s complaint (CREW’s lawsuit does), and CREW is not regulated by FEC. CREW and the 

FEC agree that the agency’s policy requires disclosure, not only in this case but generally. See

CREW’s § 30109 Compl. ¶ 8 (explaining that CREW educates voters by “exposing the special 

interests” that influenced elections and elected officials). And unlike in Crossroads, the outcome 

of this case will impose no direct consequences to CREW, either in enforcing its rights under 

section 30109, FOIA, or otherwise. CREW has made clear that “the specific purpose that 

intervention will serve,” AT&T, 642 F.2d at 1293, is to exercise its rights under section 30109 and 

FOIA. CREW’s Mot. at 5–10. As explained above, the outcome of this case will not determine 

CREW’s exercise of those rights, and CREW’s interest in the case is a general public interest, 

which the FEC’s is fully capable of representing. See Fund for Animals, 322 F.3d at 737 (D.C. 

Cir. 2003), quoting Dimond, 792 F.2d at 192–93 (holding that the government “is charged by law 

with representing the public interest of its citizens” and “would be shirking its duty were it to 

advance [a] narrower interest at the expense of its representation of the general public interest”). 

The specific purpose that intervention by CREW would serve does not warrant a finding that the 

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agency cannot adequately represent CREW’s interest here. CREW’s interest is not sufficiently 

different from the FEC’s that its interest will not be adequately represented by the FEC in this case.

CONCLUSION

For the reasons stated above, movants’ motion to intervene is DENIED. Movant is 

permitted to file an amicus brief by February 12, 2018.

 

AMY BERMAN JACKSON

United States District Judge

DATE: January 31, 2018

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