IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

) 

CITIZENS FOR RESPONSIBILITY ) 

AND ETHICS IN WASHINGTON ) 

) 

and ) 

) 

ANNE L. WEISMANN )

) 

Plaintiffs, ) 

) 

v. ) Civil Action No.: 17-cv-02770 (ABJ) 

) 

FEDERAL ELECTION COMMISSION ) 

) 

Defendant, ) 

) 

JOHN DOE 1 ) 

) 

And ) 

) 

JOHN DOE 2 ) 

) 

Proposed Intervenor-Defendants ) 

) 

_______________________________________) 

MOTION TO INTERVENE BY JOHN DOE 1 AND JOHN DOE 2 

John Doe 1 and John Doe 2, by and through undersigned counsel, respectfully move 

pursuant to Fed. R. of Civ. P. 24(a) and 24(b) for leave to intervene in the above-captioned case 

as intervenor-defendants. A memorandum of points and authorities and a proposed order are 

attached to this motion. In accordance with Fed. R. Civ. P. 24(c) and LCvR 7(j), John Doe 1 and 

John Doe 2 enclose a motion to dismiss Plaintiffs’ complaint. 

Pursuant to LCvR 7(m), on February 22, 2018, counsel for John Doe 1 and John Doe 2 

conferred with counsel for Plaintiffs and the defendant Federal Election Commission over the 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 1 of 15
2 

relief requested in this motion. The FEC does not oppose the motion to intervene; Plaintiffs do 

oppose this motion. 

March 1, 2018 Respectfully submitted, 

/s/ William Taylor, III

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

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

Counsel for John Doe 1

/s/ Kathleen Cooperstein

Kathleen Cooperstein (D.C. Bar # 1017553) 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

kcooperstein@velaw.com 

Counsel for John Doe 2

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 2 of 15
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

) 

CITIZENS FOR RESPONSIBILITY ) 

AND ETHICS IN WASHINGTON ) 

) 

and ) 

) 

ANNE L. WEISMANN )

) 

Plaintiffs, ) 

) 

v. ) Civil Action No.: 17-cv-02770 (ABJ) 

) 

FEDERAL ELECTION COMMISSION ) 

) 

Defendant, ) 

) 

JOHN DOE 1 ) 

) 

And ) 

) 

JOHN DOE 2 ) 

) 

Proposed Intervenor-Defendants ) 

) 

_______________________________________) 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

MOTION TO INTERVENE BY JOHN DOE 1 AND JOHN DOE 2 

John Doe 1, a natural person who serves as the trustee of John Doe 2, a trust (together, 

“John Does”), through undersigned counsel, together respectfully move the Court to intervene in 

this action as of right pursuant to Fed. R. Civ. P. 24(a), or, in the alternative, for permission to 

intervene pursuant to Fed. R. Civ. P. 24(b). A proposed motion to dismiss Plaintiffs’ complaints, 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 3 of 15
2 

setting out “the claim or defense for which intervention is sought,” see Fed. R. Civ. P. 24(c); 

LCvR 7(j), is attached.1

I. INTRODUCTION

In practical terms, the relief that Citizens for Responsibility and Ethics in Washington 

and Anne L. Weismann (collectively, “Plaintiffs”) seek from this Court is an order that would 

cause the Federal Election Commission (“FEC” or “Commission”) to investigate John Does for 

an alleged violation of the Federal Election Campaign Act (“FECA”). John Does were not 

respondents to Plaintiffs’ administrative complaint and were not the subject of the attendant FEC 

investigation, yet the relief Plaintiffs seek risks exposing John Does to liability. It is now wellsettled by the D.C. Circuit, as explained in its decision in Crossroads Grassroots Policy 

Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015) (hereinafter, “Crossroads GPS”), that, where a 

plaintiff asks a federal agency to investigate and sanction a party, the party against whom an 

1

 Although Fed. R. Civ. P. 24(c) calls for a proposed “pleading” to be attached to a motion to 

intervene, courts have held that this requirement may be satisfied by a proposed motion to 

dismiss. See Ctr. for Biological Diversity v. Jewell, No. 15-cv-00019, 2015 WL 13037049, at *2 

(D. Ariz. May 12, 2015) (“The Court finds that the stricken Motion to Dismiss would have 

complied with the substantive requirements of Rule 24(c); it puts the existing parties on 

sufficient notice of the State’s claim or defense, such that the procedural requirements of Rule 

24(c) would be met.”); New Century Bank v. Open Solutions, Inc., No. 10-6537, 2011 WL 

1666926, at *3 (E.D. Pa. May 2, 2011) (“other courts have liberally construed the ‘pleading’ 

requirement of Rule 24(c) to embrace other filings as long as the documents filed clearly notify 

the original parties of the position the applicant intervenor will assert”). Indeed, intervention via 

a proposed motion to dismiss is routinely granted in this district. See Clean Water Action v. 

Pruitt, No. 1:17-cv-00817-DLF, ECF No. 33 (granting motion to intervene and docketing motion 

to dismiss and opposition to summary judgment); Macon-Bibb Cty. Econ. Opportunity Council, 

Inc. v. U.S. Dep’t of Health & Human Servs., No. 1:15-cv-01850-RBW, ECF No. 10 (motion to 

intervene, granted by minute order on the same day as filing); Knapp Med. Ctr. v. Burwell, No. 

1:15-cv-01663, ECF No. 11; W. Org. of Res. Councils v. Jewell, No. 1:14-cv-01993-RBW, ECF 

Nos. 10, 17, 22, 29, 37 (granting motions to intervene and docketing motions to dismiss); Alec L. 

v. Jackson, No. 1:11-cv-02235, ECF No. 153. John Does stand prepared to answer the 

complaint, should it survive a motion to dismiss, and to participate as full intervenor-defendants 

should the Court grant such relief. 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 4 of 15
3 

enforcement proceeding is sought has the right, pursuant to Fed. R. Civ. P. 24(a), to intervene 

and set forth the reasons why they should not be subject to that enforcement proceeding. The 

need for intervention to protect John Does’ interest in avoiding enforcement proceedings is all 

the more acute where the agency (should Plaintiffs prevail) that would be charged with 

investigating John Does is the very same agency that John Does would be forced to rely on to 

defend their interests absent intervention. 

II. FACTUAL BACKGROUND

John Does’ right to intervene is demonstrated by the factual allegations set forth in 

Plaintiffs’ complaint. On February 27, 2015, Plaintiffs filed an administrative complaint with the 

FEC alleging that three parties and an “Unknown Respondent” violated FECA in connection 

with a $1.7 million contribution to a Super PAC. Compl. ¶ 24. Thereafter, the FEC opened 

Matter Under Review (“MUR”) 6920. Id. On July 11, 2017, the FEC, by a 5-0 vote, substituted 

Government Integrity, LLC (“Government Integrity”) in the place of the “Unknown 

Respondent” in the investigation triggered by Plaintiffs’ complaint. Compl. Ex. 6. On 

September 20, 2017, the FEC failed, by a vote of 2-3, to find reason to believe that John Does 

violated § 30122. Compl. Ex. 4. As two Commissioners later noted, it is the Commission’s 

regular practice for its Office of General Counsel (“OGC”) to first recommend that a new 

respondent be added as a party to a complaint, as was done with Government Integrity, before 

the Commission votes whether to find “reason to believe” that a person or entity violated FECA. 

See Compl. Ex. 5 at 1 n.2. That did not happen here, and, accordingly, John Does were never 

added as respondents to MUR 6920. 

The FEC resolved Plaintiffs’ complaint and MUR 6920 through conciliation via an 

agreement executed on October 31, 2017. Compl. ¶ 30. Four respondents, the three identified in 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 5 of 15
4 

Plaintiffs’ administrative complaint and Government Integrity, were parties to the agreement. 

John Does were not. On December 15, 2017, John Does filed suit against the FEC, seeking to 

prevent the Commission from disclosing their names in connection with the release of the 

investigative file in MUR 6920. Thereafter, on December 19, 2017, an FEC Commissioner 

issued a statement of reasons that, rather than explaining the reason for any particular vote, 

lamented the FEC’s enforcement process and provided a narrative of that Commissioner’s view 

of the facts. See Compl. Ex. 1. On the following day, December 20, 2017, two of the 

Commissioners who voted against finding reason to believe that John Does violated FECA, 

issued a statement of reasons explaining their votes. See Compl. Ex. 5. They explained that 

their decision was, in essence, an exercise of the Commission’s prosecutorial discretion, based 

on the uncertain legal theory of John Does’ liability, the impending expiration of the statute of 

limitations, and the public interest in pursuing enforcement against the four respondents. Id.

On December 22, 2017, Plaintiffs filed the instant complaint, alleging that the FEC’s 

failure to find reason to believe that John Does violated FECA, the dismissal of Plaintiffs’ 

administrative complaint, and the FEC’s vote not to enforce a subpoena issued against John Does 

were “contrary to law” within the meaning of 52 U.S.C. § 30109(a)(8) and arbitrary, capricious, 

and an abuse of discretion pursuant to the Administrative Procedure Act, 5 U.S.C. § 706. 

Compl. ¶¶ 36-46. John Does now respectfully request that the Court grant them leave to 

intervene in this action, before the FEC’s answer is due, and to file the attached proposed motion 

to dismiss. 

III. ARGUMENT 

John Does’ intervention in this matter is appropriate as a matter of right. Federal Rule of 

Civil Procedure 24(a)(2) provides that a non-party may intervene as a matter of right where the 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 6 of 15
5 

non-party “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.” The D.C. Circuit has held that the adoption of this rule was intended to “liberalize the 

right to intervene in federal actions.” Nuesse v. Camp, 385 F.2d 694, 701 (D.C. Cir. 1967). 

Thus, when determining whether to grant intervention as of right, the D.C. Circuit has identified 

four factors: 

In deciding whether a party may intervene as of right, we employ a 

four-factor test requiring: 1) timeliness of the application to 

intervene; 2) a legally protected interest; 3) that the action, as a 

practical matter, impairs or impedes that interest; and 4) that no 

party to the action can adequately represent the potential 

intervenor’s interest. 

Crossroads GPS, 788 F.3d at 320; see also Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 

(D.C. Cir. 2003). While an intervenor must demonstrate standing, “any person who satisfies 

Rule 24(a) will also meet Article III’s standing requirement.” Roeder v. Islamic Republic of 

Iran, 333 F.3d 228, 233 (D.C. Cir. 2003). 

A. John Does Are Entitled To Intervene as a Matter of Right 

John Does have met the four requirements for intervention as of right. The instant 

motion is timely, because the time has not yet elapsed for the FEC to file its responsive pleading. 

John Does have a legally cognizable interest in the outcome of this action, which threatens to 

subject them to investigation and potential sanction by the FEC. Lastly, the FEC, the very 

agency that would be tasked with investigating and sanctioning Plaintiffs, and where at least one 

Commissioner thereof has already prejudged John Does’ guilt, cannot adequately represent 

Plaintiffs’ interests. 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 7 of 15
6 

1. This motion is timely

The D.C. Circuit’s decision in Crossroads GPS suggests that a motion to intervene that is 

filed before the defendant’s responsive pleading is due is timely. See Crossroads GPS, 788 F.3d 

at 320. The FEC’s responsive pleading is not due until March 9, 2018. Thus, there can be no 

prejudice to the existing parties were John Does to be added to this action as defendants. 

Moreover, no current or scheduled proceedings will be disrupted or delayed if John Does are 

permitted to intervene as defendants. Accordingly, intervention at this point in the litigation is 

timely. 

2. John Does have a legally protected interest in this litigation 

The essence of the relief sought by Plaintiffs’ complaint is an order from this Court 

declaring that the FEC is obligated to conduct an investigation into John Does’ conduct, thus 

exposing them to potential civil liability. As the case now stands, there is no prospect that the 

FEC will investigate John Does. MUR 6920 was concluded via conciliation, and the statute of 

limitations has run with respect to any conduct in connection with the subject matter of that 

MUR. As such, John Does currently face no prospect that the FEC will investigate them, a status 

quo that Plaintiffs seek to overturn with this lawsuit. Moreover, if Plaintiffs are successful here, 

John Does are threatened not only with a burdensome and intrusive investigation, but also face 

the risk of a civil action against them, either by the FEC, pursuant to 52 U.S.C. § 30109(a)(6)(A), 

or a civil suit by Plaintiffs themselves should the FEC fail to act, pursuant to 52 U.S.C. 

§ 30109(a)(8)(C). 

The D.C. Circuit has recognized in a nearly identical case that intervention is appropriate 

in these circumstances. In Crossroads GPS, which involved a more typical Subsection (a)(8) 

action, the administrative complainant challenged the FEC’s decision to dismiss a complaint 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 8 of 15
7 

against the respondent named in the complaint. 788 F.3d at 315. The respondent then sought 

intervention in the Subsection (a)(8) action as a defendant in order to protect the benefit it 

obtained from the FEC’s dismissal. Id.

In the Crossroads GPS case, the D.C. Circuit recognized that a party receives “a 

significant benefit, similar to a favorable civil judgment,” sufficient to confer standing to 

intervene, where it “faces no further enforcement proceedings” from the FEC. Id. at 317. John 

Does are not precisely analogous to the proposed intervenor in Crossroads GPS, given that the 

proposed intervenor in that case was an actual respondent to an administrative complaint that had 

actually been dismissed, but the practical effect of the relief Plaintiffs seek is the same as that 

faced by the proposed intervenor in Crossroads GPS. As in that case, John Does received a 

benefit from the FEC’s failure to name them as respondents to Plaintiffs’ complaint, in that John 

Does are not subject to investigation and potential enforcement proceedings by the FEC. Should 

Plaintiffs prevail in the instant lawsuit, John Does stand to be “subject to enforcement 

proceedings before a federal agency,” and “an unfavorable decision” from this Court would thus 

“remove the party’s benefit.” Id. Such a decision “would extinguish the current barrier to 

enforcement and would limit the Commission’s discretion in the future.” Id. at 319. 

Accordingly, the D.C. Circuit recognized in Crossroads GPS that this direct harm could serve as 

an “injury in fact” for standing purposes, confirming that John Does have a legally protected 

interest in the outcome of this case. See id. at 317-19. 

In addition to the interest identified in Crossroads GPS, John Does have an interest as 

non-respondent, third-party witnesses to an FEC enforcement proceeding, in maintaining their 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 9 of 15
8 

anonymity. That interest is presently being litigated in a related case before this Court.2 Based 

on the position the FEC has taken in the related case, causing the Commission to conduct an 

investigation into John Does could result in the disclosure of their identities, even without a 

finding of wrongdoing. Moreover, the FEC has taken the position in that litigation that this case 

cannot be conducted without revealing John Does’ identities to Plaintiffs. See FEC Opp’n to the 

Mot. to Intervene by Citizens for Responsibility and Ethics in Washington and Anne Weismann 

at 5-6, 9, Doe v. FEC, No. 17-2694 (ABJ), Dkt. No. 35. Plaintiffs are also actively seeking to 

use this litigation as a basis for obtaining John Does’ identities. See Plaintiffs’ Motion for 

Clarification or In the Alternative, for a Protective Order, Dkt. No. 10. Therefore, John Does 

also have a legal interest in defending the present action in order to prevent what amounts to a 

collateral attack on the relief they may obtain in their action against the FEC. 

3. John Does’ interest would be impeded as a practical matter were Plaintiffs to 

prevail 

If Plaintiffs prevail, and thereby succeed in extinguishing the present barrier to 

enforcement, John Does will be practically impeded in their attempts to protect their interest in 

avoiding investigation and potential civil litigation against them by the FEC or Plaintiffs. The 

D.C. Circuit held in Crossroads GPS that “[a]n adverse judgment in the district court would 

impair [proposed intervenor’s] defense in a new proceeding because a judicial pronouncement 

that the FEC’s dismissal was contrary to law would make the ‘task of reestablishing the status 

quo . . . [more] difficult and burdensome.’” 788 F.3d at 320 (quoting Fund for Animals, 322 

F.3d at 735). Plaintiffs seek an order from this Court declaring, among other things, that it was 

“contrary to law” under FECA and prohibited by the APA for the FEC to (1) exercise its 

2

See Doe et al. v. FEC, No. 17-2694 (ABJ). 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 10 of 15
9 

prosecutorial discretion based on the expiration of the statute of limitations; and (2) “refus[e] to 

vote to find reason to believe” that John Does violated FECA. Compl. ¶ 38. Such findings 

would, pursuant to Crossroads GPS, undoubtedly prejudice John Does’ efforts to resist further 

investigation or any subsequent civil action. 

4. The FEC does not adequately represent John Does’ interests

John Does cannot entrust the defense of their interests to the very agency that would be 

tasked with investigating and, potentially, seeking sanctions against them. Although John Does 

bear the burden of demonstrating that the FEC does not represent their interests, this burden is 

“not onerous” and has been described as “minimal.” Dimond v. District of Columbia, 792 F.2d 

179, 192-93 (D.C. Cir. 1986). The FEC is the agency that would “directly and immediately” 

investigate and regulate John Does in the event that Plaintiffs prevail, and as the Crossroads GPS

Court held, “[i]n such circumstances, [a proposed intervenor] should not need to rely on a 

doubtful friend to represent its interests, when it can represent itself.” Crossroads GPS, 788 F.3d 

at 321. 

There could be no more doubtful “friend” of the John Does than the FEC in this case. 

OGC, the very group that will be responsible for litigating this Subsection (a)(8) action, 

articulated a position to the FEC (which failed to garner the support of a majority of 

Commissioners) that mirrors Plaintiffs’ position in their Complaint. See Compl. ¶ 31. John 

Does are presently litigating against the FEC in another case arising out of MUR 6920, and the 

FEC has affirmatively stated it will not seek to preserve John Does’ anonymity from Plaintiffs in 

this case. Moreover, one Commissioner already has, in the words of her fellow Commissioners, 

“publicly prejudged” John Does’ guilt (Compl., Ex. 5 at 3 n.8), accusing them of having 

participated in a money laundering scheme. Given that the Commission is currently 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 11 of 15
10 

understaffed, having only four of its six members, John Does have a legitimate concern that this 

Commissioner, who believes they “got away with it,” might refuse not only to appeal any 

adverse decision but may refuse to defend against this lawsuit at all. See 52 U.S.C. § 30106(c) 

(imposing four-vote requirement for “[a]ll decisions of the Commission with respect to the 

exercise of its duties and powers”). This lone Commissioner, who has already prejudged 

Plaintiffs’ guilt, has the power to prevent the FEC from defending this case. This concern is not 

hypothetical; in the Crossroads GPS case, two Commissioners (one of whom no longer sits on 

the Commission) voted against allowing their own agency to defend a lawsuit filed by an activist 

group. Statement of Reasons of Chairman Lee E. Goodman, and Commissioners Caroline C. 

Hunter and Matthew S. Petersen Regarding the Commission’s Vote to Authorize Defense of Suit 

in Public Citizen, et al. v. FEC, Case No. 14-cv-00148 (RJL) (Apr. 10, 2014), 

https://www.fec.gov/resources/about-fec/commissioners/goodman/statements/ 

PublicCitizenStatement_LEG_CCH_MSP.pdf. John Does therefore have a firm basis for 

doubting whether the FEC will be willing or able to adequately defend their interests, which 

clearly are at stake in this litigation. 

Accordingly, John Does are entitled to intervene in this action by right. 

B. In the Alternative, John Does Request Permission To Intervene

If the Court concludes that John Does are not entitled to intervene as of right, John Does 

respectfully request that the Court grant them permission to intervene pursuant to Fed. R. Civ. P. 

24(b). Rule 24(b) permits the Court to allow a non-party to intervene, on a timely motion, where 

they have “a claim or defense that shares with the main action a common question of law or 

fact.” Fed. R. Civ. P. 24(b)(1)(B). The “claim or defense” language in Rule 24(b) is flexible and 

nontechnical. See Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 312 (D.D.C. 2011). 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 12 of 15
11 

When weighing whether to grant permissive intervention, the rules provide that the Court should 

“consider whether the intervention will unduly delay or prejudice the adjudication of the original 

parties’ rights.” Fed. R. Civ. P. 24(b)(3); see EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 

1042, 1045 (D.C. Cir. 1998). The Court “may also consider ‘whether parties seeking 

intervention will significantly contribute to . . . the just and equitable adjudication of the legal 

question presented.’” Ctr. for Biological Diversity, 274 F.R.D. at 313 (quoting Aristotle Int’l, 

Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010)). 

The same reasons that support intervention as of right support permissive intervention. 

As discussed above, John Does have a significant legal interest in this case: preventing the 

initiation and pursuit of an administrative enforcement proceeding against them. As set out in 

the attached motion to dismiss, John Does have defenses to raise against Plaintiffs, and are 

prepared to fully participate in this action as defendants beyond the motion to dismiss, if 

necessary. John Does intend to raise arguments contesting Plaintiffs’ right to bring this action, 

and the FEC, hamstrung as it is by the requirement that all of its current members vote to 

approve any action, may not provide a full defense of a decision that divided its Commissioners. 

The perspective of John Does, who are as much a party in interest in this litigation as the 

Plaintiffs and the FEC, can thus be expected to significantly contribute to the just and equitable 

adjudication of this case. 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 13 of 15
12 

CONCLUSION 

For the reasons stated above, John Does respectfully request that the Court grant them 

leave to intervene as party defendants and file the attached motion to dismiss. 

March 1, 2018 Respectfully submitted, 

/s/ William Taylor, III________ 

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

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

Counsel for John Doe 1

/s/ Kathleen Cooperstein_______

Kathleen Cooperstein (D.C. Bar # 1017553) 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

kcooperstein@velaw.com 

 Counsel for John Doe 2

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 14 of 15
CERTIFICATE OF SERVICE 

I hereby certify that on this 1st day of March, 2018, I served the foregoing papers on all 

counsel of record in this case by filing them in the Court’s electronic filing system, which served 

these same papers on counsel of record. 

/s/ William W. Taylor, III 

William W. Taylor, III 

Case 1:17-cv-02770-ABJ Document 11 Filed 03/01/18 Page 15 of 15