IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

)

JOHN DOE 1 )

)

) EMERGENCY MOTION

and )

)

JOHN DOE 2 )

)

Plaintiffs, )

)

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

) ORAL ARGUMENT REQUESTED

FEDERAL ELECTION COMMISSION )

)

Defendant. )

)

_______________________________________)

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER 

AND PRELIMINARY INJUNCTION

Pursuant to Fed. R. Civ. P. 65 and LCvR 65.1, Plaintiffs, by and through undersigned 

counsel, hereby move the Court for a Temporary Restraining Order and Preliminary Injunction 

enjoining Defendant, the Federal Election Commission, a federal agency, from disclosing 

portions of the investigative record in Matter Under Review 6920 that identify Plaintiffs. 

Plaintiffs have exhausted any other administrative remedies available to them through the 

Federal Election Commission’s administrative process.

In support of this motion, Plaintiffs rely upon the attached memorandum of points and 

authorities. A proposed order is attached. Oral argument is respectfully requested.

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Dated: December 15, 2017 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)

1

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/ Michael Dry________________

Michael Dry (D.C. Bar # 1048763)

Craig Margolis (D.C. Bar # 454783)

Kathleen Cooperstein (D.C. Bar # 1017553)

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

 

1 Application for admission pending. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

)

JOHN DOE 1 )

)

and )

)

JOHN DOE 2 )

)

Plaintiffs, )

)

v. ) Civil Action No.: 

) ORAL ARGUMENT REQUESTED

FEDERAL ELECTION COMMISSION )

)

Defendant. )

)

_______________________________________)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES 

IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND..........................................................................................................2

LEGAL STANDARD......................................................................................................................4

ARGUMENT...................................................................................................................................5

A. Plaintiffs are likely to succeed on the merits...........................................................5

1. Exemption 7(C) categorically prohibits disclosure of Plaintiffs’ names.....6

2. Disclosure of Plaintiffs’ names is contrary to FECA and the FEC’s 

regulations....................................................................................................8

a. Disclosure of the fact Plaintiffs were investigated, when no 

finding of wrongdoing has been made, violates FECA ...................8

b. The FEC must justify its disclosure decisions under the 

First Amendment ...........................................................................10

c. Disclosure of Plaintiffs’ identities violates the FEC’s 

regulations......................................................................................12

B. Plaintiffs stand to suffer irreparable injury in the absence of relief.......................13

C. The FEC would not be harmed by a TRO or injunction........................................16

D. Delay to allow for consideration of the critical privacy interests at issue 

would further the public interest............................................................................17

CONCLUSION..............................................................................................................................18

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INTRODUCTION

Pursuant to Fed. R. Civ. P. 65 and LCvR 65.1, Plaintiffs, an individual, John Doe 1, and a 

trust, John Doe 2, by and through undersigned counsel, respectfully move this Court for an order 

enjoining the Federal Election Commission (“FEC”) from disclosing Plaintiffs’ identities when, 

pursuant to 11 C.F.R. § 5.4(a)(4), it makes the investigative materials from Matter Under Review 

(“MUR”) 6920 available for public inspection. Disclosure of Plaintiffs’ identities is prohibited 

by law, including the FEC’s organic statute, the Federal Election Campaign Act (“FECA”), the 

FEC’s own regulations, and the Administrative Procedure Act (“APA”). Neither Plaintiff was a 

respondent in MUR 6920. Thus, there has been no finding that either violated FECA. 

Disclosing that Plaintiffs’ were investigated in connection with MUR 6920 would result in 

certain harm to Plaintiffs’ reputations. Upon information and belief, the documents the FEC 

intends to make public include internal memoranda compiled by the FEC staff during the course 

of its law enforcement investigation, in which the FEC staff insinuated that Plaintiffs participated 

in a violation of FECA. In the absence of any finding by the Commission that Plaintiffs engaged 

in any wrongdoing, the disclosure of their identities in the context of staff-generated law 

enforcement documents impermissibly serves as a de facto public reprimand when the 

Commission has not followed the procedures carefully elaborated by Congress in FECA for 

finding a violation. Such unfair and illegal disclosure is sure to cause Plaintiffs considerable 

harm. By contrast, the FEC would not be harmed, and the public has no interest in the disclosure 

of the identities of targets or witnesses of a law enforcement investigation in the absence of a 

finding of wrongdoing.

A temporary restraining order is necessary to preserve the status quo in this case in order 

to give the Court sufficient time to adjudicate the merits of this matter. In the absence of such an 

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order, the case will be moot, and it will be impossible to remedy the harm that Plaintiffs suffer

from the disclosure. The subject matter of this case, which touches on key First Amendment 

rights and the authority of the agency entrusted with defending those rights to name individuals it 

has investigated but against whom it has made no finding of liability, warrants careful scrutiny 

before irrevocable action is taken.

FACTUAL BACKGROUND

As more fully set forth in Plaintiffs’ Complaint in this matter, at issue in this case is the 

FEC’s decision to disclose the identity of an individual (John Doe 1) and an entity (John Doe 2) 

who were named in internal FEC documents compiling the results of an investigation into an 

alleged violation of the Federal Election Campaign Act (“FECA”). The individual and entity 

were part of this investigation because of their alleged participation in core First Amendment 

activity: a contribution to a Super PAC that made independent expenditures in support of 

candidates for federal office. See generally Citizens United v. FEC, 558 U.S. 310 (2010); 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 

The FEC investigation at issue in this matter resulted in a conciliation agreement among 

three entities, and one individual (collectively, “Respondents”), and the FEC, wherein the FEC 

found violations of FECA and Respondents agreed to pay a civil penalty without admitting 

liability. Significantly, neither Plaintiff was a party to the conciliation agreement, and the FEC 

made no findings of any violation against them. Nor did the FEC make a final determination that 

there was no reason to believe that they violated FECA. The FEC now plans to make public 

Plaintiffs’ names as part of its release of documents in connection with that matter.

The underlying investigation at issue began at the FEC on or around February 27, 2015, 

when a complaint was filed by a third party alleging violations of FECA relating to a 

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contribution by American Conservative Union, an organization organized under Section 

501(c)(4) of the Internal Revenue Code, to Now or Never PAC, an independent expenditure-only 

committee (known colloquially as a “Super PAC”). The complaint also named Now or Never 

PAC’s treasurer and an unknown respondent. During its investigation, FEC staff prepared 

various memoranda that summarized the actions of the four Respondents and included references 

to Plaintiffs and their alleged roles in the conduct at issue. After an investigation, the FEC 

reached a conciliation agreement with a number of entities and individuals. Neither Plaintiff was 

a party to the conciliation agreement.

After the Commission accepted the conciliation agreement, counsel for one of the 

respondents, Government Integrity, LLC (“Government Integrity”) and counsel for Plaintiffs 

objected to any potential release of their names in connection with the release of the investigative 

file in MUR 6920. The FEC took these objections under consideration. Counsel for the FEC’s 

Enforcement Division informed counsel for Government Integrity on November 29, 2017 that it 

would provide forty-eight hours’ notice before releasing any investigative materials in MUR 

6920.

On December 12, 2017, the FEC informed counsel for Government Integrity during a 

telephonic conference that the FEC intended to release certain materials from its investigative 

file in MUR 6920. These materials included the reports of the FEC’s general counsel, the briefs 

drafted as part of the administrative enforcement proceedings, and the certifications of the 

Commission’s votes. The Commission has not advised counsel for Plaintiffs as to which 

documents it intends to release, and it has not provided advance copies of these documents to 

Plaintiffs. However, the Commission informed counsel for Government Integrity that it does not 

intend to redact Plaintiffs’ names from the materials that it releases. Counsel for Government 

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Integrity informed the FEC that it would notify Plaintiffs of the FEC’s position regarding release 

of Plaintiffs’ names in these materials. When asked the basis for its decision to release this 

information in light of Plaintiffs’ objections, the FEC did not articulate its reasons and stated 

only that it was following its policies. On December 14, 2017, counsel for the FEC advised 

counsel for Plaintiffs that the FEC would release documents identifying Plaintiffs on or after 

December 18, 2017 at 5:00 p.m. Therefore, Plaintiffs anticipate that their identities will be 

disclosed by the FEC in the absence of a temporary restraining order or other injunctive relief.

LEGAL STANDARD

“The standard for obtaining injunctive relief through either a temporary restraining order 

or a preliminary injunction is well established.” Gomez v. Kelly, 237 F. Supp. 3d 13, 14 (D.D.C. 

2017). In assessing whether to grant such relief, a court must balance four factors: “(1) whether 

the movant is substantially likely to succeed on the merits; (2) whether the movant would suffer 

irreparable injury if the injunction were not granted; (3) whether an injunction would 

substantially injure other interested parties; and (4) whether the public interest would be 

furthered by the injunction.” Citizens for Responsibility and Ethics in Washington v. Cheney, 

577 F. Supp. 2d 328, 334 (D.D.C. 2008). “In applying this four-factored standard, district courts 

employ a sliding scale under which a particularly strong showing in one area can compensate for 

weakness in another.” Id. at 334-35. Accordingly, “the D.C. Circuit has explained: To justify a 

temporary injunction it is not necessary that the plaintiff’s right to a final decision . . . be 

absolutely certain . . . if the other elements are present . . . it will ordinarily be enough that the 

plaintiff has raised substantial questions going to the merits.” Id. at 335 (quoting Wash. Metro. 

Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)). For instance, 

“a court may issue injunctive relief upon ‘a particularly strong likelihood of success on the 

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merits even if there is a relatively slight showing of irreparable injury.’” Alf v. Donley, 666 F. 

Supp. 2d 60, 69 (D.D.C. 2009) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 

F.3d 738, 747 (D.C. Cir. 1995)).

ARGUMENT

Plaintiffs satisfy all four of the requirements needed to justify a TRO or preliminary 

injunction in this case. First, the FEC’s imminent disclosure of Plaintiffs’ identities violates 

FECA, the APA, and the FEC’s own regulations, all of which guarantee that the identities of 

targets or witnesses of an investigation into violations of FECA are protected from disclosure in 

this sensitive area of the law. Second, Plaintiffs stand to suffer irreparable harm to their 

reputations. Third, the FEC would not be injured by this temporary injunction, as Plaintiffs do 

not object to the disclosure of the portions of those documents – which relate to conduct that 

occurred more than five years ago – that are necessary to deter violations of campaign finance 

law and explain the FEC’s factual and legal basis for its decision. Fourth, there is no public 

interest in the disclosure of the identities of targets and witnesses in law enforcement 

investigations against whom there has been no finding of wrongdoing, and the public interest is 

furthered by careful examination of the FEC’s decision, which necessarily implicates 

fundamental First Amendment rights to political participation. Accordingly, Plaintiffs 

respectfully request that this Court enter an order enjoining the FEC from disclosing materials 

that reveal their identities until the merits of this action can be fully addressed and considered.

A. Plaintiffs are likely to succeed on the merits

The grounds for relief set forth in Plaintiffs’ complaint demonstrates a strong likelihood 

of success on the merits. Plaintiffs’ claim for relief is based on 5 U.S.C. § 706(2) of the APA, 

which empowers this Court to “hold unlawful and set aside agency action, findings, and 

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conclusions” that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance 

with law,” or “contrary to constitutional right, power, privilege, or immunity.” The FEC’s 

decision to disclose Plaintiffs’ names is contrary to law and is otherwise arbitrary, capricious, 

and an abuse of discretion. Specifically, the FEC’s decision contravenes Exemption 7(C) of the 

Freedom of Information Act (“FOIA”), and is contrary to FECA and the FEC’s own regulations. 

In addition, the FEC’s failure to provide any substantive reason for its decision leaves this Court 

unable to evaluate that decision, and thus its final action was arbitrary and capricious. See, e.g., 

Moon v. U.S. Dep’t of Labor, 727 F.2d 1315, 1318 (D.C. Cir. 1984) (“an agency must provide a 

reasoned explanation for its actions and articulate with some clarity the standards that governed 

its decision”).

1. Exemption 7(C) categorically prohibits disclosure of Plaintiffs’ names

Exemption 7(C) exempts the disclosure of “records or information compiled for law 

enforcement purposes, but only to the extent that the production of such law enforcement records 

or information . . . could reasonably be expected to constitute an unwarranted invasion of 

personal privacy.” 5 U.S.C. § 552(b)(7)(C). “Exemption 7(C) ‘affords broad privacy rights to 

suspects, witnesses, and investigators.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 

(D.C. Cir. 1991) (quoting Bast v. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)) 

(alterations omitted)). To protect those rights, the D.C. Circuit has held that Exemption 7(C) 

categorically prevents an agency from disclosing information that falls within its ambit.2 See id. 

at 1206; see also The Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) 

 

2

The one exception to this categorical rule is where “there is compelling evidence that the 

agency . . . is engaged in illegal activity, and access to the names of private individuals appearing 

in the agency’s law enforcement files is necessary in order to confirm or refute that evidence.” 

SafeCard Servs., Inc., 926 F.2d at 1205-06. Those circumstance are not present here.

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(“to the extent any information contained in 7(C) investigatory files would reveal the identities of 

individuals who are subjects, witnesses, or informants in law enforcement investigations, those 

portions of responsive records are categorically exempt from disclosure”). As such, “the names 

and addresses of private individuals appearing in files within the ambit of Exemption 7(C) . . . 

[are] exempt from disclosure.” Id. 

Following SafeCard Services, D.C. Courts have recognized that Exemption 7(C) is not 

only an exemption from a FOIA request but may be used by an individual to affirmatively 

prevent the disclosure of protected information, a so-called “reverse FOIA” action. See Tripp v. 

Dep’t of Defense, 193 F. Supp. 2d 229, 239 (D.D.C. 2002). This court has held elsewhere that 

Exemption 7(C) prevents the disclosure of the names and addresses of individuals compiled in 

FEC enforcement investigations. In that case, the FEC concluded its investigation and, as here, 

sought to disclose the investigative record, which included “names and identifying information 

of hundreds of [respondents’] employees, officials, and volunteers.” Am. Fed’n of Labor & 

Cong. of Indus. Orgs. v. Fed. Election Comm’n, 177 F. Supp. 2d 48, 54 (D.D.C. 2001)

(hereinafter “AFL-CIO”). In that case, the respondents filed suit, relying “on Exemption 7(C) to 

protect the identities and personal information of third party individuals, such as officials, 

volunteers, members and employees of the DNC and AFL-CIO, who are referred to in the 

investigative files.” Id. at 61.

The court rejected the FEC’s argument that the proper analysis was for the court to weigh 

the privacy interests of the named individuals against the public interest in the results of an FEC 

enforcement investigation, noting that the D.C. Circuit held in SafeCard Services that Exemption 

7(C) established a categorical rule against disclosure. See id. As the district court held: “names 

are exempt from disclosure—regardless of the public interest asserted.” Id. Accordingly, the 

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district court ultimately held that “the FEC’s refusal to apply Exemption 7(C) to bar release of 

the names and other identifying information of third-party individuals referred to in its 

investigative files is arbitrary, capricious, and contrary to law.” Id. at 63.

This case is materially indistinguishable from AFL-CIO. Neither Plaintiff was named as 

a respondent in MUR 6920. There has been no finding that either of them violated FECA. In 

this posture, Plaintiffs are third parties to the investigative process before the FEC. Disclosing 

their identities would reveal that the FEC had examined their conduct in connection with its 

investigation, precisely the privacy interest that the D.C. Circuit has held is protected by 

Exemption 7(C). Accordingly, given the D.C. Circuit’s categorical bar on an agency releasing 

information that falls within the ambit of Exemption 7(C), Plaintiffs have demonstrated a 

significant likelihood of success.

2. Disclosure of Plaintiffs’ names is contrary to FECA and the 

FEC’s regulations

a. Disclosure of the fact Plaintiffs were investigated, when no 

finding of wrongdoing has been made, violates FECA

Nondisclosure of the details of an investigation is enshrined in FECA and the FEC’s 

regulations. FECA provides that: “Any notification or investigation made under this section 

shall not be made public by the Commission or by any person without the written consent of the 

person receiving such notification or the person with respect to whom such investigation is 

made.” 52 U.S.C. § 30109(a)(12)(A).3

The exact scope of § 30109(a)(12)(A) is not clear, but even under a limited interpretation 

it prevents the disclosure of the names of non-respondents, because disclosing their names would 

reveal the fact of an investigation into their conduct. The D.C. Circuit has held that the main 

 

3

Plaintiffs have not consented to their identities being made public.

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purpose of FECA’s nondisclosure scheme is “to protect an innocent accused who is exonerated 

from disclosure of the fact that he has been under investigation.” In re Sealed Case, 237 F.3d 

657, 667 (D.C. Cir. 2001) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 

n.6 (1958) (alterations and quotation marks omitted). In the AFL-CIO case, the FEC offered a 

much more limited interpretation of § 30109(a)(12)(A) that would prevent only “disclosure of 

the fact that an investigation is pending,” see Am. Fed’n of Labor & Cong. of Indus. Orgs. v. 

Fed. Election Comm’n, 333 F.3d 168, 174 (D.C. Cir. 2003) (“AFL-CIO”). However, in AFLCIO, the D.C. Circuit made no holding as to the ultimate scope of § 30109(a)(12)(A). While the 

D.C. Circuit found that, under Chevron Step One, § 30109(a)(12)(A) was ambiguous, at Step 

Two it found that the interpretation of § 30109(a)(12)(A) set forth in the FEC’s regulations, 

which provided for the disclosure of all investigative material, was not a permissible

interpretation of the statute in light of First Amendment concerns. Id. at 175-179. Therefore, 

§ 30109(a)(12)(A) must have continuing vitality after an investigation is concluded; otherwise it 

would run afoul of constitutional concerns. However, as one D.C. Circuit judge observed, even 

under the FEC’s narrow interpretation of § 30109(a)(12)(A)’s nondisclosure provision, the 

disclosure of information that “would inevitably reveal upon publication the fact that [a person] 

had been investigated” would violate § 30109(a)(12)(A). Id. at 182 n.3 (Henderson, J., 

concurring).

Section 30109(a)(12)(A) prohibits the FEC from disclosing Plaintiffs’ names, because to 

do so would disclose that there was an investigation into their conduct. FECA mandates 

disclosure of a conciliation agreement where the FEC makes findings that FECA has been 

violated or the fact that the FEC found no reason to believe a violation occurred. See 52 U.S.C. 

§ 30109(a)(4)(B)(ii). Neither applies to a person whose conduct was examined as part of an 

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investigation into an alleged violation of FECA, and who thus was named in investigation 

documents generated in connection with the law enforcement investigation, but was never 

formally named a respondent. In these circumstances, disclosing Plaintiffs’ identities would 

disclose the fact of an investigation into their conduct when no other provision of FECA permits 

or requires that disclosure. The purpose of § 30109(a)(12)(A), to protect the innocent accused, is 

wholly contravened if the FEC staff may freely make insinuations in its internal memoranda 

against individuals against whom the Commission has made and will make no finding, knowing 

that those insinuations will be made public. Accordingly, FECA prohibits the disclosure at issue 

here.

b. The FEC must justify its disclosure decisions under the First 

Amendment

Moreover, under the D.C. Circuit’s interpretation of § 30109, the FEC’s decision to 

disclose the contents of its investigative file implicates fundamental First Amendment concerns. 

See AFL-CIO, 333 F.3d at 175. Indeed, the D.C. Circuit held that the FEC is “[u]nique among 

federal administrative agencies,” because it “has as its sole purpose the regulation of core 

constitutionally protected activity—‘the behavior of individuals and groups only insofar as they 

act, speak and associate for political purposes.’” Id. at 170 (quoting FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)). Therefore, the FEC has the 

“unique prerogative to safeguard the First Amendment when implementing its congressional 

directives,” because “every action the FEC takes implicates fundamental rights.” Van Hollen v.

FEC, 811 F.3d 486, 499-500 (D.C. Cir. 2016). The FEC carries out this prerogative by 

“tailoring the disclosure requirements to satisfy constitutional interests in privacy.” Id. at 499.

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In AFL-CIO, the D.C. Circuit applied this constitutional mandate to the FEC’s decision to 

disclose the contents of its investigative file following the conclusion of its investigation. When 

weighing a disclosure requirement, courts “balance the burdens imposed on individuals and 

associations against the significance of the government interest in disclosure and consider the 

degree to which the government has tailored the disclosure requirements to serve its interests.” 

AFL-CIO, 333 F.3d at 176. It is not sufficient for the FEC to reiterate the governmental interests 

that support disclosure of information in the course of an investigation: the D.C. Circuit has 

“held that ‘compelling public disclosure presents a separate first amendment issue’ that requires 

a separate justification.” Id. (quoting Block v. Meese, 793 F.2d 1303, 1315-16 (D.C. Cir. 1986)) 

(alterations omitted). In AFL-CIO, the FEC identified two interests that it alleged supported 

public disclosure of investigative materials: (1) deterring FECA violations; and (2) promoting the 

agency’s own public accountability. Id. at 178. The FEC’s recent disclosure policy does not 

disclose any additional interests. See Disclosure of Certain Documents and Enforcement and 

Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016). Accordingly, the FEC must demonstrate 

that its decision to disclose Plaintiffs’ identities furthers these governmental interests. It cannot.

Disclosing Plaintiffs’ identities would serve no deterrent function. There can be no 

deterrence value in disclosing the identities of non-respondents against whom no finding of 

liability has been made. The FEC has already named those it found to be responsible for 

violations of FECA and announced the penalties against them. For the same reasons, disclosing 

Plaintiffs’ identities can say nothing about the integrity of the FEC’s process. All of the 

pertinent facts that led to the FEC’s finding in the conciliation agreement, and its reasons for 

reaching the conclusion that it did, may be disclosed. Therefore, the FEC’s decision to disclose 

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Plaintiffs’ identities is inconsistent with its obligation to safeguard the First Amendment when 

disclosing the contents of its investigative file.

c. Disclosure of Plaintiffs’ identities violates the FEC’s 

regulations

The FEC’s own regulations also provide that disclosure of Plaintiffs’ names would be 

improper.4 “Agencies are under an obligation to follow their own regulations, procedures, and 

precedents, or provide a rational explanation for their departures.” Nat’l Cons. Political Action 

Comm. v. FEC, 626 F.2d 953, 959 (D.C. Cir. 1980). The FEC adopted its present disclosure 

policy in the wake of the D.C. Circuit’s opinion in the AFL-CIO case, which replaced a more 

sweeping disclosure regime. See Disclosure of Certain Documents and Enforcement and Other 

Matters, 81 Fed. Reg. 50,702, 50,702-50,703 (Aug. 2, 2016). That policy permits the disclosure 

of documents deemed “integral to [the FEC’s] decisionmaking process” and “integral to [the 

FEC’s] administrative functions.” Id. at 50,703. The present disclosure policy explicitly “does 

not alter any existing regulation or policy requiring or permitting the Commission to redact 

documents, including those covered by this policy, to comply with the FECA, the principles set 

forth by the court of appeals in AFL-CIO, and the FOIA.” Id. at 50,704. 

The FEC’s regulations, which mandate limited disclosure of information conveying the 

results of the investigation and the Commission’s analysis (by, for instance, directing that the 

report of the FEC’s general counsel be made public), provide that the FEC will release only 

“non-exempt 52 U.S.C. 30109 investigatory materials.” See, e.g., 11 C.F.R. § 5.4(a)(4). Thus, 

“the material subject to disclosure,” excludes those records that “are subject to the collateral 

provisions of the Freedom of Information Act.” See 11 C.F.R. § 5.3(b). FEC regulations 

 

4

Plaintiffs reserve the right to challenge the legality of the regulations, to the extent that the FEC 

argues that its regulations mandate the disclosures at issue. 

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recognize Exemption 7(C) and exclude material falling under that exemption from disclosure.5 

See 11 C.F.R. § 4.5(a)(7)(iii).

As demonstrated above, Plaintiffs’ names are categorically protected from disclosure by 

Exemption 7(C), so under the FEC’s own regulations the FEC may not release those names to 

the public because they are protected from disclosure by Exemption 7(C). 

In addition, as non-respondent third-party witnesses, Plaintiffs’ identities are not integral 

to the FEC’s decisionmaking process or its administrative functions. The FEC’s regulations 

grant it the power to redact documents, such as the general counsel’s report, that run afoul of 

FOIA, § 30109(a)(12)(A), or the First Amendment. The FEC regularly redacts material from 

documents its makes available to the public. The FEC’s decision not to exercise that power in 

this case is contrary to its own regulations and FECA. The FEC has offered no explanation for 

this departure from the requirements of its own regulations.

Accordingly, it is plain that the FEC’s action is arbitrary, capricious, an abuse of 

discretion, or otherwise contrary to law.

B. Plaintiffs stand to suffer irreparable injury in the absence of relief

In the absence of an order prohibiting the FEC from disclosing Plaintiffs’ identities,

Plaintiffs will suffer irreparable harm through damage to their reputations. “To be irreparable, an 

injury must be ‘certain and great,’ ‘actual and not theoretical,’ and ‘of such imminence that there 

is a clear and present need for equitable relief to prevent irreparable harm.’” Fraternal Order of 

Police Library of Cong. Labor Comm. v. Library of Cong., 639 F. Supp. 2d 20, 24 (D.D.C. 2009) 

(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). 

 

5

FEC regulations generally provide that the Commission has the discretion to release records 

otherwise exempt under § 4.5(a), see 11 C.F.R. § 4.6, but that discretion cannot be interpreted to 

extend to § 4.5(a)(7)(iii) given the D.C. Circuit’s holding in SafeCard Services.

Case 1:17-cv-02694-ABJ Document 13 Filed 12/19/17 Page 17 of 22
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Additionally, “[t]he injury also must be ‘beyond remediation,’ meaning: Mere injuries . . . are not 

enough. The possibility that adequate compensatory or other corrective relief will be available at 

a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable 

harm.” Fraternal Order of Police Library of Cong. Labor Comm., 639 F. Supp. 2d at 24

(quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98). The injuries Plaintiffs stand 

to suffer if the FEC discloses Plaintiffs’ names are imminent, as the FEC will very shortly 

release the investigative materials disclosing their names. As demonstrated below, this court and 

others have recognized the magnitude of the injuries that will inure to Plaintiffs in the absence of 

relief. Moreover, once Plaintiffs’ names are disclosed, the genie cannot be put back in the bottle;

if relief is not granted now, there is no remedy this Court can fashion that would restore 

Plaintiffs’ anonymity.

This release is imminent and certain and will occur in the absence of relief from this 

Court. Thus, the harm that Plaintiffs will suffer is not theoretical. The release of information in 

this case has already drawn scrutiny from activist groups and the media,

6

and Plaintiffs’ concerns 

that the proposed disclosure will expose them to an invasion of their privacy and the ensuing 

harm to their reputations are therefore well-founded.

As set forth in the attached Declaration of John Doe 1, Ex. A, disclosure of Plaintiffs’

identities will directly and substantially harm their reputations, while disclosing confidential 

information about their political activity. John Doe 1 , and thus the disclosure that 

 

6

See CREW Complaint Results in Record Post-Citizens United Penalty, Citizens for 

Responsibility and Ethics in Washington (Nov. 20, 2017),

https://www.citizensforethics.org/press-release/crew-complaint-results-record-post-citizensunited-penalty/; Julie Bykowicz, Wall St. J., Elections Regulator Fines Conservative Groups 

Over Finance Infraction (Nov. 20, 2017), https://www.wsj.com/articles/elections-regulatorfines-conservative-groups-over-finance-infraction-1511211219.

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he was investigated in connection with an alleged violation of federal law stands to work serious 

reputational harm against him. Further, the materials that the FEC proposes to disclose suggest 

that John Doe 2 violated the law by failing to comply with an FEC subpoena. In addition, 

disclosure of Plaintiffs’ alleged prior political activities would chill the future exercise of their 

free speech rights under the First Amendment.

These harms are sufficient to warrant a TRO or preliminary injunction. “[H]arm to 

reputation has been recognized repeatedly as a type of irreparable injury.” Brodie v. U.S. Dep’t 

of Health and Human Servs., 715 F. Supp. 2d 74, 84 (D.D.C. 2010). The D.C. Circuit has held 

that “[t]he privacy interest at stake” in these circumstances is “substantial. ‘There is little 

question that disclosing the identity of targets of law-enforcement investigations can subject 

those identified to embarrassment and potentially more serious reputational harm.’” SafeCard 

Servs., Inc., 926 F.2d at 1205 (quoting Bast v. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 

1981)) (alterations omitted). Plaintiffs stand to suffer such serious harm given that the 

investigation into their conduct focused on a matter of significant interest to the public: the 

conduct of elections and political speech. Moreover, John Doe 1 whose reputation 

will be implicated by the disclosure that he was connected to a law enforcement investigation by 

the FEC. See Muhaisen v. John and Jane Does, No. 17-cv-01575-PAB, 2017 WL 4012132, at 

*3 (D. Col. Sept. 12, 2017) (

); Bruder v. Smith, No. 05-74511, 2005 WL 3502269, at *4 (E.D. Mich. Dec. 22, 

2005) (

). There has been no finding 

that there is reason to believe that Plaintiffs violated FECA – let alone a finding that Plaintiffs

actually violated FECA – that would warrant this disclosure. Thus, disclosure of their identities 

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invites speculation that is harmful to Plaintiffs’ reputations and is precisely the reason why, for 

the reasons set out above, the disclosure of their identities is unlawful.

Once the disclosure at issue is made in this case, the harm is irreparable. Information 

once disclosed cannot be undisclosed, and no amount of financial compensation can undo the 

reputational harm that would necessarily result if the FEC is permitted to make the disclosures 

that it intends to make here. Therefore, a TRO or preliminary injunction is necessary to prevent 

these irreparable injuries from coming to pass before the Court has had the opportunity to weigh 

the merits of this case.

C. The FEC would not be harmed by a TRO or injunction

Preventing the FEC from releasing the names of an individual and an entity who are nonrespondents and, at this stage, essentially third-party witnesses, could not harm the agency or its 

mission. Plaintiffs do not oppose the release of the conciliation agreement or other investigative 

materials that would inform the public about the basis for the FEC’s decision.7 The release of 

the conciliation agreement itself is sufficient to communicate the FEC’s position and deter any 

future violations of FECA. Any harm to the FEC or its mission by delaying the release of these 

names would be marginal at best; identifying Plaintiffs adds nothing except to needlessly and 

unlawfully expose the identities of non-respondents to a law enforcement investigation.

 

7

The FEC therefore may not complain that any injunction issued by this Court would contravene 

its regulations, which require the disclosure of certain materials within 30 days of notice of the 

conciliation agreement. See 11 C.F.R. § 5.4(a)(4). The purpose of this action is, in part, to 

enforce compliance with this regulation. Plaintiffs further note that the FEC had previously 

agreed not to disclose certain documents during its consideration of Plaintiffs’ request to redact 

the Plaintiffs’ names, notwithstanding the expiration of the 30 day time period during the 

pendency of those considerations.

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D. Delay to allow for consideration of the critical privacy and First Amendment 

interests at issue would further the public interest

The public can have no interest in the immediate disclosure of the names of nonrespondents to a law enforcement investigation when there is no dispute that all of the 

information pertinent to understanding the findings and legal conclusions of that investigation 

may be disclosed in accordance with law. As the D.C. Circuit observed, the public’s interest in 

the disclosure of the names of suspects, witnesses, and investigators compiled as part of a 

completed law enforcement proceeding is “insubstantial,” and outside of circumstances not 

applicable to this case, “there is no reason to believe that the incremental public interest in such 

information would ever be significant.” SafeCard Servs., Inc., 926 F.2d at 1206. 

By contrast, there is “a strong public interest in the exercise of free speech rights” and 

“protecting First Amendment rights.” See Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511-

12 (D.C. Cir. 2016). The D.C. Circuit has stated that the FEC’s decision to disclose information 

compiled as part of its investigative record must be in accord with the First Amendment. See 

AFL-CIO, 333 F.3d at 176-78. Accordingly, there is a strong public interest in ensuring that the 

FEC does not disclose more information regarding its investigations than is necessary to carry 

out its governmental functions. The FEC’s conduct here, which would in essence provide it an 

avenue to make public its suspicions and insinuations against private individuals without the 

safeguards of the administrative process carefully delineated by Congress in FECA, warrants 

significant and careful examination to ensure that the public’s interest in the proper and lawful 

enforcement of FECA is vindicated. In the absence of an order prohibiting the disclosure of 

Plaintiffs’ names, the First Amendment interests will be lost and the public interest harmed.

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Accordingly, all four of the prongs of the test governing whether a TRO or a preliminary 

injunction should issue demonstrate that such relief is appropriate in this case.

CONCLUSION

For the reasons stated above, Plaintiffs respectfully request that the Court enter the 

proposed order restraining or enjoining the FEC from releasing Plaintiffs’ names as part of its 

investigative file.

Dated: December 15, 2017 /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)

8

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/ Michael Dry________________

Michael Dry (D.C. Bar # 1048763)

Craig Margolis (D.C. Bar # 454783)

Kathleen Cooperstein (D.C. Bar # 1017553)

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

 

8 Application for admission pending. 

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