UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

AMERICAN ACTION NETWORK,

Intervenor-Defendant.

 Civil Action No. 1:22-cv-03281 (CRC)

AMERICAN ACTION NETWORK’S 

REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 1 of 20
-iTABLE OF CONTENTS

GLOSSARY ................................................................................................................................... ii

TABLE OF AUTHORITIES......................................................................................................... iii

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

ARGUMENT...................................................................................................................................2

I. CREW Confirms This Suit Is Time Barred. ............................................................2

II. CREW Confirms This Suit Is Unreviewable...........................................................8

A. CREW Wrongly Dismisses Binding D.C. Circuit Authority. .....................8

B. CREW Pretends One Commissioner Speaks For The FEC.......................10

III. CREW Confirms That It Lacks Standing. .............................................................12

CONCLUSION..............................................................................................................................15

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 2 of 20
-iiGLOSSARY

AAN American Action Network

CREW Citizens for Responsibility and Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 3 of 20
-iiiTABLE OF AUTHORITIES

Page(s)

Cases

AFL-CIO v. FEC,

333 F.3d 168 (D.C. Cir. 2003)...................................................................................................7

Brownback v. King,

141 S. Ct. 740 (2021).................................................................................................................1

Common Cause v. FEC,

108 F.3d 413 (D.C. Cir. 1997).................................................................................................13

Common Cause v. FEC,

842 F.2d 436 (D.C. Cir. 1988)...................................................................................................6

CREW v. AAN,

410 F. Supp. 3d 1 (D.D.C. 2019).........................................................................................3, 12

CREW v. AAN,

590 F. Supp. 3d 164 (D.D.C. 2022)...................................................................................1, 3, 8

CREW v. FEC,

799 F. Supp. 2d 78 (D.D.C. 2011).............................................................................................7

CREW v. FEC,

892 F.3d 434 (D.C. Cir. 2018).........................................................................................5, 8, 11

CREW v. FEC,

993 F.3d 880 (D.C. Cir. 2021).........................................................................................1, 3, 11

CREW v. FEC,

Nos. 16-5300, 16-5343, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017).....................................11

CREW v. FEC,

No. 18-5136, 2018 WL 5115542 (D.C. Cir. Sept. 19, 2018)...................................................11

Democratic Cong. Campaign Comm. v. FEC,

831 F.2d 1131 (D.C. Cir. 1987).....................................................................................1, 10, 11

Doe, 1 v. FEC,

920 F.3d 866 (D.C. Cir. 2019)...................................................................................................7

FEC v. Nat’l Republican Senatorial Comm.,

966 F.2d 1471 (D.C. Cir. 1992)...............................................................................................10

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 4 of 20
-ivJordan v. FEC,

68 F.3d 518 (D.C. Cir. 1995).................................................................................................7, 8

Klayman v. Obama,

805 F.3d 1148 (D.C. Cir. 2015).................................................................................................9

Lewis v. Casey,

518 U.S. 343 (1996)...................................................................................................................5

Nat’l Rifle Ass’n of Am. v. FEC,

854 F.2d 1330 (D.C. Cir. 1988).................................................................................................2

Save Our Cumberland Mountains, Inc. v. Hodel,

826 F.2d 43 (D.C. Cir. 1987).....................................................................................................9

Spannaus v. FEC,

990 F.2d 643 (D.C. Cir. 1993)...............................................................................................3, 7

Stone v. Lynch,

174 F. Supp. 3d 291 (D.D.C. 2016)...........................................................................................4

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021).............................................................................................................13

Trichell v. Midland Credit Mgmt., Inc.,

964 F.3d 990 (11th Cir. 2020) .................................................................................................13

United States v. Torres,

115 F.3d 1033 (D.C. Cir. 1997).................................................................................................9

Wagner v. FEC,

717 F.3d 1007 (D.C. Cir. 2013).................................................................................................5

Statutes

52 U.S.C. § 30109........................................................................................................2, 3, 4, 11, 12

FEC Statements of Reasons

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

Cooksey and James E. “Trey” Trainor, III, MUR No. 6589R (May 13, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_30.pdf.....................................................4

Supplemental Statement of Reasons of Chairman Allen J. Dickerson, MUR No. 

6589R (Oct. 12, 2022), 

https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf.....................................................4

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1

INTRODUCTION

CREW’s opposition makes one thing perfectly clear: CREW rejects more than three-anda-half decades of D.C. Circuit authority. When then-judge Ruth Bader Ginsburg held that a 

Federal Election Commission “dismissal due to a deadlock is reviewable,” Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir. 1987) (“DCCC”), she affirmed a basic 

tenet of the congressional design for the agency: the Federal Election Campaign Act requires “four 

affirmative votes” to proceed with enforcement but only three to dismiss, id. at 1133; accord 

CREW v. FEC, 993 F.3d 880, 891 (D.C. Cir. 2021) (“New Models”) (rejecting CREW’s argument 

“that four commissioners must concur not only in enforcement actions, but also in nonenforcement 

actions”), en banc reh’g denied, 55 F.4th 918 (D.C. Cir. 2022). Accordingly, when three 

Commissioners vote to dismiss a complaint, their action and their reasononing speaks for the 

agency, as their three votes control even though they do not constitute a majority.

That principle controls this case. In 2014, the FEC deadlocked and so dismissed CREW’s 

2012 administrative complaint against AAN. This Court reviewed that dismissal and the 

explanation of the controlling three commissioners and ultimately determined that the FEC’s 

reasons for dismissing were “not subject to judicial review” because the agency exercised

unreviewable “prosecutorial discretion.” CREW v. AAN, 590 F. Supp. 3d 164, 173–75 (D.D.C. 

2022) (“AAN III”); cf. Brownback v. King, 141 S. Ct. 740, 750 (2021) (“a federal court always has 

jurisdiction to determine its own jurisdiction” (citation omitted)). Furthermore, the Court 

recognized that CREW’s citizen suit based on the Commission’s failure to take any action in 2018 

on the same 2012 administrative complaint “must” be “dismiss[ed]” because the agency never 

should have been forced to take another vote on the 2012 administrative complaint after it 

dismissed it as a matter of prosecutorial discretion in 2014. AAN III, 590 F. Supp. 3d at 175. 

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 6 of 20
2

This case seeks to collaterally attack the Court’s dismissal of that first citizen suit via a 

second, parallel citizen suit that likewise seeks to enforce the same 2012 administrative complaint 

that the FEC dismissed long ago in exercise of its unreviewable enforcement discretion. To get 

there, CREW urges this Court to hold that a single Commissioner can retroactively “control” the 

rationale of agency action she opposed (in 2014) by announcing years later, in a dissent from a 

ministerial action to close a file (in 2022), that her abstention from an intervening substantive vote 

(in May 2018) somehow made her the sole controlling commissioner—even though this Court had 

already (in April 2018) asserted jurisdiction over CREW’s first citizen suit. The result, according 

to CREW, is that this Court should authorize a new citizen suit based on the same “original 

complaint” even while the original citizen suit is still pending on appeal.

The Court should reject CREW’s invitation to abandon nearly forty years of settled D.C. 

Circuit precedent. Indeed, CREW’s opposition papers confirm what AAN has said from the 

beginning: this action is untimely, it is unreviewable, and CREW lacks standing. CREW’s 

disputes with binding Circuit authority on each of these points are not for this Court to resolve, 

and CREW is free to make in its already-pending appeal all its meritless arguments for rejecting 

the authoritative precedents it does not like. This Court should dismiss.

ARGUMENT

I. CREW CONFIRMS THIS SUIT IS TIME BARRED.

The Court should dismiss because this action is untimely. FECA imposes a 60-day 

deadline to file a lawsuit challenging an FEC dismissal decision that is “jurisdictional and 

unalterable,” Nat’l Rifle Ass’n of Am. v. FEC, 854 F.2d 1330, 1334 (D.C. Cir. 1988) (citation 

omitted); see 52 U.S.C. § 30109(a)(8)(A), (B), and this suit was filed years after the FEC’s 

dismissal decisions. CREW’s opposition attempts to obfuscate the record on this point, so it is 

important to yet again walk through the history of CREW’s crusade against AAN.

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3

As AAN explained (AAN Mem. 17–19), the FEC first dismissed CREW’s 2012 complaint 

in 2014. Following this Court’s remand, the FEC dismissed that same 2012 complaint again in 

2016. After that, the FEC “failed to act,” CREW v. AAN, 410 F. Supp. 3d 1, 25 (D.D.C. 2019) 

(“AAN I”), so, CREW “invoked FECA’s citizen-suit provision to sue AAN directly,” id. at 7, based 

on the allegations in its 2012 complaint. Following discovery, this Court dismissed CREW’s 

citizen suit as unreviewable under binding D.C. Circuit precedent because the agency dismissed 

pursuant to its enforcement discretion. AAN III, 590 F. Supp. 3d at 174; see New Models, 993 F.3d 

880. CREW appealed, and that appeal remains pending. In August 2022, apparently recognizing 

that the D.C. Circuit would soon resolve any remaining issues and that there was nothing left for 

the Commission to do, the Commission closed its administrative file and notified AAN that its 

investigative records would become public under agency regulations. 

CREW concedes (Opp’n 26–27), as it must, that it is jurisdictionally barred from filing yet 

another suit trying to challenge the FEC’s dismissal decisions in 2014 and 2016.

1 But, seeking to 

evade that insurmountable hurdle, CREW argues the FEC’s “vote to close the file” on a case that 

it had already twice dismissed years ago somehow “dismissed this case” yet again, and hence 

renewed its opportunity to sue. Opp’n 26. 

1

 CREW suggests there may have been a third dismissal “in 2018.” Opp’n 26. The FEC record 

shows, however, that Commissioner Weintraub “abstained” rather than dissented from the 

substantive “reason to believe” vote that three Commissioners supported, apparently resulting in 

no action from the then four-member Commission. Compl. Ex. 4 (Certification, MUR No. 6589R 

(May 10, 2018)); see FEC, Directive 10 (June 8, 1978) (amended Dec. 20, 2007), 

https://www.fec.gov/resources/cms-content/documents/directive_10.pdf. In all events, assuming, 

arguendo, that there had been a dismissal in May 2018—and that the FEC could somehow have 

retained jurisdiction to dismiss following CREW’s filing suit on the same original complaint—

this suit, filed October 2022, would still obviously have missed FECA’s 60-day deadline. See also 

Spannaus v. FEC, 990 F.2d 643, 644–45 (D.C. Cir. 1993) (per curiam) (holding “the 60-day review 

period runs from the ‘date of dismissal’” not the date of “notice”).

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4

That is nonsense. As a majority of Commissioners who voted to close the file explained, 

CREW’s position is foreclosed by binding D.C. Circuit precedent and is “without legal support of 

any kind.” Supp. Statement of Reasons of Chairman Allen J. Dickerson, MUR No. 6589R, at 1 

(Oct. 12, 2022), https://www.fec.gov/files/legal/murs/6589R/6589R_32.pdf; accord Statement of 

Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” 

Trainor, III, MUR No. 6589R (May 13, 2022), https://www.fec.gov/files/legal/murs/6589R/

6589R_30.pdf. The only Commissioner who disagrees is Commissioner Weintraub, and she voted 

against closing the file. Compl. Ex. 3 (Certification, MUR No. 6589R (Aug. 29, 2022)). 

That her dissent trying to characterize the Commission’s ministerial action as a third 

“dismissal” does not control whether it actually is a dismissal, should be obvious. In fact, years 

of litigation proceeded in this Court at that Commissioner’s behest—and continues to proceed in

the D.C. Circuit—based on the understanding that the requisite dismissals occurred long ago and 

that the FEC’s inaction in 2018 passed the baton to CREW.2 Seeking to justify this untimely 

attempt to launch a second citizen suit, CREW string cites six cases that it claims all stand for the 

proposition that an FEC file closure is a “dismissal.” None does. 

Start with the obvious. None of the cases CREW cites says what CREW says—i.e., that a 

Commission “vote to close the file . . . starts the FECA’s sixty-day clock.” Opp’n 24. That is why 

CREW sifts the administrative record underlying each case, hunting for clues that perhaps some 

2

 There is thus no merit to CREW’s position that it is entitled to a simultaneous, second citizen 

suit to enforce the same “original complaint” at issue in its first citizen suit. 52 U.S.C. 

§ 30109(a)(8)(C). But see Opp’n 15 (“CREW’s citizen suit should be authorized immediately”), 

44 (“This Court should . . . expeditiously authorize CREW to bring its own citizen suit.”). The 

fact that CREW requests this inappropriate relief confirms AAN’s argument (AAN Mem. 1, 28) 

that this action is nothing more than an improper collateral attack on the Court’s prior dismissal 

order. See, e.g., Stone v. Lynch, 174 F. Supp. 3d 291, 294 (D.D.C. 2016) (Cooper, J.) (holding an 

action is an impermissible “collateral attack if, in some fashion, it would overrule a previous 

judgment.” (brackets and internal quotation marks omitted)).

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 9 of 20
5

court erroneously took jurisdiction over an untimely dismissal. But none did, and even if CREW 

had managed to strain the gnat it still swallows the camel by ignoring the “well-established rule 

that cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition 

that jurisdiction exists.” Wagner v. FEC, 717 F.3d 1007, 1016 (D.C. Cir. 2013) (citation omitted); 

see Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[T]he existence of unaddressed jurisdictional 

defects has no precedential effect.”).

In all events, the cases and their underlying agency records support AAN, not CREW. In 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CHGO”), the FEC “dismissed [CREW’s] 

administrative complaint” “in 2015.” Id. at 436–37. As CREW well knows as the complainant in 

that case, the FEC’s record shows that on October 1, 2015, “the Commission . . . [f]ailed by a vote 

of 3-3 to . . . [f]ind reason to believe” that the respondent violated FECA. Attach. A, at 1 

(Certification, MUR Nos. 6391 and 6471 (Oct. 1, 2015)). On the same day, “the 

Commission . . . [d]ecided by a vote of 5-1 to . . . [c]lose the file” and [s]end the appropriate 

letters.” Id. at 2. The “dismissal,” as every member of the panel recognized, resulted from “[t]he 

deadlock.” 892 F.3d at 437; see id. at 449 (Pillard, J., dissenting) (“FECA’s ‘judicial review 

prescription’ calls for review of an FEC dismissal that is, as here, ‘due to a deadlock’—that is, a 

three-to-three tie vote by the Commissioners”). It was thus the deadlock, not the contemporaneous 

administrative act of closing the file, that gave rise to jurisdiction. Indeed, no one—not even the 

dissent—claimed that the file closure had any jurisdictional significance. CREW’s decision to 

emphasize the date of the FEC’s file closure while omitting that its deadlocked vote happened on 

the same day gets it nowhere. 

None of the other decisions CREW cites involves review of a deadlock dismissal—let 

alone an attempt to review a deadlock dismissal several years after the fact based on the ministerial 

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6

act of closing the file on the long-ago-dismissed case. In Common Cause v. FEC, 842 F.2d 436 

(D.C. Cir. 1988), the FEC considered an administrative complaint alleging coordination between 

five independent committees and Ronald Reagan’s officially authorized campaign committee. In 

1980, the Commission found “reason to believe” that a statutory violation had taken place with 

respect to three committees but deadlocked on the other two. “[T]he 3-3 deadlock among the 

Commissioners . . . resulted in a dismissal of the coordination claims against these two parties.” 

Id. at 438. Following its investigation into the other three, “the General Counsel recommended 

that the Commission take no additional action” and, in 1983, the Commission by majority vote 

agreed. Ibid.; see Attach. B, at 1–2 (Certification, MUR Nos. 1252/1299 (May 24, 1983)).

Common Cause sought judicial review, arguing “that the Commission’s ultimate dismissal 

of the coordination . . . claims that it had investigated and its failure to give reasons for declining 

to investigate the coordination charges against [the other two committees] were ‘contrary to law.’” 

Common Cause, 842 F.2d at 439. The latter argument turned on the D.C. Circuit’s intervening 

decision in DCCC, which had for the first time “found that a Commission dismissal of a complaint 

resulting from a 3-3 deadlock vote was reviewable when the General Counsel had made a contrary 

recommendation based on FEC precedent.” Common Cause, 842 F.2d at 448. The D.C. Circuit 

“decline[d] to apply th[at] precedent retroactively to [Common Cause], which arose before our 

DCCC decision.” Ibid. Because the D.C. Circuit declined to apply DCCC retroactively, it 

addressed on the merits only the Commission’s 1983 actions, not its 1980 actions. The court thus 

had no occasion to consider the timeliness of Common Cause’s challenge with respect to the 1980 

deadlock dismissals, and the decision does not purport to address that issue. CREW is thus simply 

wrong to claim that Common Cause supports its position here.

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7

CREW’s citation to Doe 1 v. FEC, 920 F.3d 866 (D.C. Cir. 2019) is likewise inapposite. 

There, two plaintiffs brought a preemptive First Amendment challenge to the FEC’s planned 

disclosure of their identities pursuant to its “disclosure policy.” Id. at 869. In other words, they 

were challenging the agency’s decision to disclose materials, not its decision to dismiss a 

complaint. Doe thus unsurprisingly says nothing at all about any deadlocked vote. 

In the course of describing the Commission’s disclosure policy, the court remarked that 

“[w]hen the Commission ended its investigation and closed the file, it ‘terminate[d] its 

proceedings’ within the meaning of 11 C.F.R. § 111.20(a).” Id. at 871 n.9 (emphasis added). 

CREW quotes selectively (Opp’n 24) the court’s remark about termination but elides the 

qualifying language that points to section 111.20(a) of the Commission’s rules. That language is 

key to understanding the court’s statement because section 111.20(a) is among the trifecta of 

agency regulations governing the Commission’s obligation to make public “disclosure of 

investigatory file materials in closed cases.” AFL-CIO v. FEC, 333 F.3d 168, 171 (D.C. Cir. 2003)

(identifying 11 C.F.R. §§ 111.20, 111.21, and 5.4). That the Doe court linked section 111.20(a) 

disclosure obligations with the concept of file closure reinforces AAN’s position that “the FEC’s 

non-statutory file closure procedure . . . is merely an administrative function to demarcate the 

‘public release of all investigatory file materials not exempted by the Freedom of Information Act’

and [does] not . . . serve as a shadow dismissal procedure.” AAN Mem. 21 (citation omitted). 

CREW’s remaining cases are even farther afield. Like Doe, neither Spannaus v. FEC, 990 

F.2d 643 (D.C. Cir. 1993) (per curiam), Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995), nor CREW 

v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011), mentions any deadlocked vote. And that makes sense 

because the record in each proceeding shows that the Commission action was taken by majority 

vote on the same day the Commission also voted to close the file. See Attach. C, at 1 (Certification, 

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8

MUR No. 3178 (July 24, 1991)); Attach. D, at 1 (Certification, MUR No. 2163 (Jan. 9, 1991)); 

Attach. E, at 1 (Certification, MUR No. 5908 (June 29, 2010)). Furthermore, in each case the 

court found that it lacked jurisdiction to review the action in question (in Spannaus and Jordan

because, like here, the suits were untimely!). Obviously, as none of these cases found jurisdiction, 

none supports CREW’s argument.

The bottom line is simple. The FEC first dismissed CREW’s complaint in 2014 and, 

following this Court’s remand, the FEC dismissed CREW’s complaint again in 2016. These were 

the only times the agency dismissed the complaint. Because the statutory deadline to challenge 

the FEC’s dismissals ran long ago, CREW’s untimely effort to challenge those dismissals yet again 

through this collateral action seeking judicial review based on the same original complaint “must 

be dismissed for lack of jurisdiction.” Jordan, 68 F.3d at 519.

II. CREW CONFIRMS THIS SUIT IS UNREVIEWABLE.

The Court should also dismiss because this action is unreviewable. As AAN explained, 

CREW’s suit is merely another effort to obtain review of an FEC decision to dismiss a complaint 

in an exercise of its unreviewable prosecutorial discretion, which this Court already held 

unreviewable in AAN III. See AAN Mem. 22–28.

A. CREW Wrongly Dismisses Binding D.C. Circuit Authority.

This Court dismissed CREW’s citizen suit because D.C. Circuit precedent unambiguously 

required that result. In New Models, the D.C. Circuit squarely held that “a Commission decision 

that rests even in part on prosecutorial discretion cannot be subject to judicial review.” AAN III, 

590 F. Supp. 3d at 174 (quoting New Models, 993 F.3d at 884); see CHGO, 892 F.3d at 442. 

Seeking dismissal in this case, AAN explained that just as the FEC’s 2014 dismissal of CREW’s 

2012 complaint precluded review of CREW’s first citizen suit based on that same complaint, it 

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9

also precludes judicial review here even if the FEC’s 2022 file closure were another dismissal. See 

AAN Mem. 23–25.

CREW’s principal response is to attack the legitimacy of New Models, falsely claiming 

that “New Models is not binding caselaw in this Circuit.” Opp’n 2; see id. at 28 (“if this case 

cannot be distinguished from CHGO and New Models, those decisions must be disregarded”), 34–

43 (arguing New Models “must be disregarded” “even assuming that this case is ‘on all fours’ with 

New Models” (emphasis omitted)). CREW is, of course, entitled to its own opinion. But it is not 

entitled to its own facts. “[I]n our hierarchical system of absolute vertical stare decisis,” Klayman 

v. Obama, 805 F.3d 1148, 1149 (D.C. Cir. 2015) (Kavanaugh, J., concurring), “district judges, like 

panels of th[e D.C. Circuit], are obligated to follow controlling circuit precedent until either [the 

Circuit], sitting en banc, or the Supreme Court, overrule it,” United States v. Torres, 115 F.3d 

1033, 1036 (D.C. Cir. 1997). Two D.C. Circuit panels have now rejected the same arguments 

CREW makes here about a supposed conflict between the Circuit’s most recent teaching and its 

earlier case law—first in CHGO and, more recently, in New Models—and both times the en banc 

Circuit has declined to rehear the panel decision. This Court rightly agreed that New Models is 

binding. Contrary to CREW’s assertions, this Court must continue to follow New Models “whether 

or not” it agrees that decision “is correct.” Save Our Cumberland Mountains, Inc. v. Hodel, 826 

F.2d 43, 54 (D.C. Cir. 1987) (R.B. Ginsburg, J., concurring) (citation and subsequent history 

omitted).

In addition to New Models, CREW attacks nearly forty years of D.C. Circuit precedent 

regarding judicial review of deadlocked dismissals. Although CREW’s entire case is based on the 

views of a single FEC commissioner, it argues, apparently without even appreciating the irony, 

that this Court should not credit the FEC’s 2014 statement of reasons invoking prosecutorial 

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discretion because it was “signed by only three commissioners.” Opp’n 31; see also id. at 16 

(asserting “three commissioners could not alone” “vote to exercise discretion”). That is, of course, 

flatly contrary to the D.C. Circuit’s oft-repeated holding that “when the Commission deadlocks 

3-3 and so dismisses a complaint . . . the three Commissioners who voted to dismiss must provide 

a statement of their reasons for so voting.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 

1471, 1476 (D.C. Cir. 1992) (emphasis added). “Since those Commissioners constitute a 

controlling group for purposes of the decision,” the D.C. Circuit has explained, “their rationale 

necessarily states the agency’s reasons for acting as it did.” Ibid. (emphasis added); see also 

DCCC, 831 F.2d at 1134–35. CREW is therefore simply wrong when it argues that “[t]he 

deadlocking commissioners’ [2014] statement does not explain the dismissal” because three was 

not “the majority.” Opp’n 32. Under binding D.C. Circuit precedent, it plainly was.

B. CREW Pretends One Commissioner Speaks For The FEC.

CREW is equally wrong when—after strenuously objecting that three commissioners 

cannot “alone” control the agency—it suddenly throws the stick in reverse and contends that 

Commissioner Weintraub alone “now speaks as the Commission in this matter.” Opp’n 30. Not 

surprisingly, neither CREW nor the FEC can cite a single authority for the bizarre proposition that 

a lone commissioner’s solo dissent somehow retroactively vitiates the reasoning that the 

Commission actually embraced years ago.3

The absurdity of the proposition is self-evident. FECA requires four votes to proceed with 

an enforcement action and only three to dismiss. 52 U.S.C. § 30109(a)(2); see New Models, 993 

3

 It is unclear whether FEC counsel accepts CREW’s position that Commissioner Weintraub’s 

statement is controlling or is merely purporting to take “the factual allegations in the complaint as 

true.” FEC Mem. 10. Either way, counsel is mistaken. Far from a mere factual allegation, 

CREW’s theory advances a legal conclusion that is both wrong on the merits and unentitled to the 

presumption of truth.

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F.3d at 891 (expressly rejecting CREW’s argument “that four commissioners must concur not only 

in enforcement actions, but also in nonenforcement actions”). That is why, when the Commission 

deadlocks, the reviewing court employs “a rather apparent fiction” whereby “the statement or 

statements of those naysayers . . . will be treated as if they were expressing the Commission’s 

rationale for dismissal.” CHGO, 892 F.3d at 437–38. 

This fiction works to enable meaningful judicial review—including, as happened here, 

review that ultimately determines the agency’s dismissal decision is unreviewable because it rests 

on prosecutorial discretion. But according to CREW’s attempted abuse of this legal fiction, 

Commissioner Weintraub may, by abstaining from the Commission’s 2018 enforcement vote and 

then subsequently issuing a statement explaining that her decision was disingenuous, singlehandedly rescind the agency’s 2014 exercise of discretion and override the written explanations of 

the three Commissioners who (unlike Commissioner Weintraub) actually voted to dismiss. The 

result of that position, if taken seriously, would be to undermine meaningful judicial review and 

to allow individual rogue commissioners to compel enforcement action without “the requisite four 

affirmative votes” mandated by statute. DCCC, 831 F.2d at 1133. That is not the law. 

The history of this litigation also proves the absurdity of CREW’s position. For years, 

CREW subjected its ideological opponent, AAN, to invasive and burdensome discovery of its 

confidential, highly confidential, and First Amendment privileged information. For years, AAN 

sought review in the court of appeals and was rebuffed, see, e.g., CREW v. FEC, No. 18-5136, 

2018 WL 5115542 (D.C. Cir. Sept. 19, 2018); CREW v. FEC, Nos. 16-5300, 16-5343, 2017 WL 

4957233 (D.C. Cir. Apr. 4, 2017), and forced to wait until the end of CREW’s meritless citizen 

suit. Now, CREW claims all that was meaningless because Commissioner Weintraub had not yet 

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spoken “as the Commission.” Opp’n 30. Why then has CREW been wasting everyone’s time and 

resources for the last decade?

Adding insult to repeated injury, CREW claims that it can pursue simultaneously the 

original citizen suit that this Court dismissed (that is, the citizen suit that is now on appeal in the 

D.C. Circuit with CREW’s principal brief due next month) and a second citizen suit that it asks 

this Court to authorize through this litigation. Opp’n 15 (“CREW’s citizen suit should be 

authorized immediately”), 44 (“This Court should . . . expeditiously authorize CREW to bring its 

own citizen suit.”). That, of course, is nonsense. FECA authorizes, in limited circumstances, “a

civil action to remedy the violation involved in the original complaint.” 52 U.S.C. 

§ 30109(a)(8)(C) (emphases added). By the plain terms of the statute, this Court may not authorize 

more than one citizen suit based on the same original complaint.

The best view is the obvious one. When, in April 2018, the FEC “failed to act” and 

permitted CREW “to sue AAN directly,” AAN I, 410 F. Supp. 3d at 7, 25; see also Compl. Ex. 2 

(Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. FEC & AAN, at 1 (Apr. 19, 

2018)), jurisdiction shifted from the agency to this Court. The first stage of CREW’s citizen suit 

culminated when the Court correctly held that binding precedent unambiguously required 

dismissal. That decision will now be subject to the D.C. Circuit’s review, and CREW can make 

there all its meritless arguments for rejecting binding Circuit authority. But FECA does not permit 

CREW to bring—or Commissioner Weintraub to unilaterally authorize—a second citizen suit that

collaterally attacks the first merely because they are unhappy with the result. See also AAN Mem. 

27–28.

III. CREW CONFIRMS THAT IT LACKS STANDING.

In addition, the Court should dismiss because CREW lacks standing. As AAN explained, 

the Supreme Court recently held that “[a]n ‘asserted informational injury that causes no adverse 

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 17 of 20
13

effects cannot satisfy Article III,’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021) 

(quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020) (Katsas, J., 

sitting by designation)), and CREW’s conclusory allegations fail to plead factual content showing 

any ill effects from its failure to obtain AAN’s donor information. AAN Mem. 15–17.

CREW asserts TransUnion is “ambiguous in context.” Opp’n 20 n.6. But the Supreme 

Court said what it said, explaining that where a statute makes “information subject to public[ ]

disclosure” the plaintiff must still “identif[y] . . . ‘downstream consequences’ from failing to 

receive the required information.” TransUnion, 141 S. Ct. at 2214; see Trichell, 964 F.3d at 1004 

(“the plaintiffs in Public Citizen and Akins identified consequential harms from the failure to 

disclose the contested information”). Far from ambiguous, the “context” of the Supreme Court’s 

statement confirms that merely identifying a statutory right is insufficient to demonstrate 

informational injury under Article III.

CREW reveals the inadequacy of its alleged harm when it attempts to differentiate between 

“assess[ing] anyone else’s legal compliance” (which it appears to agree is not a cognizable injury) 

and “pursu[ing] violations of the Act” (which it contends is a cognizable injury). Opp’n 21–22. 

Either way, CREW’s hair splitting overlooks the simple reality that a plaintiff cannot “establish 

injury in fact merely by alleging that he has been deprived of the knowledge as to whether a 

violation of the law has occurred.” Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997); 

see TransUnion, 141 S. Ct. at 2206 (“the public interest that private entities comply with the law 

cannot ‘be converted into an individual right by a statute that denominates it as such’”) (quoting 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992)). Because that is what the Complaint 

alleges, CREW has not demonstrated standing.

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 18 of 20
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CREW appears to reveal its true concern when it asserts that “AAN’s donors” “supported 

candidates of the Republican [P]arty and helped flip the House.” Opp’n 23. AAN is an issuefocused 501(c)(4) social-welfare organization that works to encourage and promote “center-right 

policies based on principles of freedom, limited government, American exceptionalism, and strong 

national security,” AAN, About AAN, https://americanactionnetwork.org/about (last visited Feb. 

10, 2023). As such, AAN “welcomes supporters of its center-right values and policy proposals 

regardless of party affiliation” and frequently works “with legislators, government officials, and 

advocates of either party who are willing to advance policies consistent with the [AAN’s] 

principles.” Ibid. AAN’s purpose is not to advocate partisan outcomes.

CREW, on the other hand, adopts a partisan framing throughout its brief, repeatedly 

labeling people and issues as either “Republican” or “Democratic.” Opp’n 9, 15, 23, 24, 26, 33, 

34. That CREW views its own work as inherently partisan has not escaped the notice of outside 

observers. See, e.g., Kenneth P. Vogel, David Brock expands empire, Politico (Aug. 14, 2014), 

https://www.politico.com/story/2014/08/david-brock-citizens-for-responsibility-and-ethics-inwashington-110003 (explaining “[David] Brock was elected chairman of the group’s board last 

week after laying out a multifaceted expansion intended to turn the group into a more muscular —

and likely partisan — attack dog[.]”); Paul Singer, Ethics watchdog drops its non-partisan veneer, 

USA Today (Aug. 14, 2014), https://www.usatoday.com/story/news/politics/onpolitics/

2014/08/14/ethics-watchdog-drops-its-non-partisan-veneer/81232064/. But CREW’s apparent 

motives are certainly not consistent with the fact that it holds itself out as an allegedly non-partisan 

501(c)(3) organization that is prohibited by the Internal Revenue Code from engaging in partisan 

political activity. In any event, CREW’s apparent concern with Republican activity in the 2022 

mid-term elections cannot establish informational injury. 

Case 1:22-cv-03281-CRC Document 17 Filed 02/10/23 Page 19 of 20
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CONCLUSION

The Court should dismiss this case.

Respectfully submitted,

By: s/ Stephen J. Obermeier

Stephen J. Obermeier (D.C. Bar No. 979667)

Caleb P. Burns (D.C. Bar No. 474923)

Jeremy J. Broggi (D.C. Bar No. 1191522)

WILEY REIN LLP

2050 M Street, NW

Washington, DC 20036

(202) 719-7000

sobermeier@wiley.law

Dated: February 10, 2023 Counsel for American Action Network

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