District court denies motions to dismiss in CREW v. FEC (22-3281)

On September 20, 2023, the U.S. District Court for the District of Columbia denied both the FEC’s and Intervenor American Action Network’s (AAN) motions to dismiss and stayed the case pending the D.C. Circuit Court’s decision in CREW v. American Action Network.

Background

In 2012, CREW filed a complaint with the FEC alleging AAN violated the Act by failing to register as a political committee based on independent expenditures and electioneering communications it produced between June 23, 2009, and June 30, 2011.

In 2014, the Commission failed by a 3-3 vote to find reason to believe that AAN violated the Act and dismissed CREW’s complaint. CREW challenged that dismissal, and in 2016 the U.S. District Court for the District of Columbia granted CREW’s motion for summary judgment and remanded for reconsideration within 30 days.

On October 18, 2016, the Commission failed by a 3-3 vote to find reason to believe AAN violated the Act and voted 5-1 to close the file. CREW sought judicial review, and on March 20, 2018, a district court judge remanded the matter to the Commission and ordered it to conform with the judgment within 30 days. On May 10, 2018, the Commission, by a 3-1 vote, was unable to find reason to believe that AAN violated the Act, and on August 29, 2022, voted to dismiss the remanded complaint against AAN.

CREW then filed a new suit alleging that the Commission’s most recent dismissal of their administrative complaint was contrary to law. The court granted AAN’s motion for leave to intervene in the case. Both the FEC and AAN filed motions to dismiss.

Analysis

The court rejected AAN’s argument that CREW lacked standing to sue, finding that CREW plausibly states an informational injury sufficient to confer standing. The court held that the Commission did not “dismiss” CREW’s administrative complaint until it voted to close the file in August 2022. The court found CREW’s petition was timely because it was filed within the 60-day window to petition for review after dismissal.

In denying the Commission’s motion to dismiss, the court rejected the Commission’s argument that any remand would serve no purpose other than necessitating another round of administrative proceedings. Finally, the court deferred its consideration AAN’s argument that the Commission’s invocation of prosecutorial discretion renders the dismissal of CREW’s administrative complaint unreviewable because the D.C. Circuit may review that question in the pending case, CREW v. American Action Network.

Resources

• CREW v. FEC (22-3281) litigation page