CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. AMERICAN ACTION NETWORK, INC.

Filing 37

ORDER denying 33 Motion for Certificate of Appealability; and denying as moot 33 Motion to Stay. See full Order for details. Signed by Judge Christopher R. Cooper on 11/21/2019. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
Plaintiff,

Case No. 18-cv-945 (CRC)

v.
AMERICAN ACTION NETWORK,
Defendant.

OPINION AND ORDER
The Court has recounted the long procedural history of this case elsewhere. See CREW
v. AAN, No. 18-cv-945, 2019 WL 4750248, at *3–5 (Sept. 30, 2019) (“CREW III”). To recap
briefly: In 2012, Citizens for Responsibility in Washington (“CREW”) filed a complaint with
the Federal Election Commission alleging that defendant American Action Network (“AAN”)
had been operating as an unregistered political committee in violation of the Federal Election
Campaign Act (“FECA”). The FEC twice dismissed the complaint and, in actions brought by
CREW against the FEC, this Court found both dismissals to be contrary to law and remanded the
case to the agency for further action. See CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77
(D.D.C. 2016); CREW v. FEC (“CREW II”), 299 F. Supp. 3d 83 (D.D.C. 2018). After the FEC
failed to act on the second remand, CREW invoked FECA’s citizen-suit provision to sue AAN
directly. See 52 U.S.C. § 30109(a)(8)(C). AAN then moved to dismiss CREW’s citizen suit on
a variety of grounds, which the Court largely rejected. CREW III, 2019 WL 4750248, at *20.
AAN now seeks a certification for interlocutory appeal of four distinct issues: (1)
whether CREW has standing to pursue this action; (2) whether the FEC’s decisions to dismiss
CREW’s complaint were reviewable by this Court; (3) whether the FEC’s dismissals were

contrary to law, as the Court found in two prior cases; and (4) whether the Court has authority to
craft remedies implicating AAN’s conduct beyond the period covered by CREW’s original
administrative complaint. In the event the Court certifies any issue for appeal, AAN also seeks a
stay of the district court proceedings pending the appeal. The Court will deny the motion for
certification in its entirety, which moots the motion for a stay.
I.

Legal Standards
“Although courts have discretion to certify an issue for interlocutory appeal, interlocutory

appeals are rarely allowed.” Nat’l Cmty. Reinvestment Coal. v. Accredited Home Lenders
Holding Co., 597 F. Supp. 2d 120 (D.D.C. 2009) (internal quotations omitted). The Court may
certify an order for interlocutory appeal only if it first determines that the moving party has met
its burden to show that a nonfinal order “[1] involves a controlling question of law [2] as to
which there is substantial ground for difference of opinion and that [3] an immediate appeal from
the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292(b). This is a demanding standard. See Judicial Watch, Inc. v. Nat’l Energy Policy Dev.
Grp., 233 F. Supp. 2d 16, 19–20 (D.D.C. 2002).
In addition, because of the “strong congressional policy against piecemeal reviews, and
against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals,” id. at
20, the party seeking an interlocutory appeal also bears a heavy burden to show that “exceptional
circumstances justify a departure from the basic policy of postponing appellate review until after
the entry of final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978); see also
APCC Servs., Inc. v. AT&T Corp., 297 F. Supp. 2d 101, 104 (D.D.C. 2003) (same). 1

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AAN contends that this standard is “outdated” in light of the Supreme Court’s decision
in Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017). Reply at 2 n.1. But the Supreme
2

II.

Analysis
A. Standing
First, AAN seeks an interlocutory appeal of the Court’s standing decision. Determining

that a plaintiff has standing necessarily “involves a controlling question of law” and reversal on
appeal would “materially advance the ultimate termination of the litigation.” See 28 U.S.C. §
1292(b). But that is not enough. Contrary to AAN’s assertions that the Court “relied . . . on a
non-binding decision” instead of the “D.C. Circuit[] and the majority of courts in this District,”
Mot. at 11–13, the Court’s standing analysis is a straight-forward application of the Supreme
Court’s “helpfulness” test for informational standing. See FEC v. Akins, 524 U.S. 11, 21 (1994)
(holding that plaintiffs are injured where the information they sought “would help them (and
others to whom they would communicate it) to evaluate candidates for public office”) (emphasis
added); see also Friends of Animals v. Jewell, 828 F.3d 989, 1040–41 (D.C. Cir. 2016) (holding
that a plaintiff suffers injury in fact “where a statute (on the claimants’ reading) requires that the
information be publicly disclosed and there is no reason to doubt their claim that the information
would help them”).
Despite these straightforward holdings, AAN continues to misconstrue CREW’s injury as
derivative. See Reply at 5. AAN also points to cases where CREW happened to lack
informational standing, as if to argue that if CREW didn’t have standing once, it can never has
standing. See Mot. at 11–12 (citing cases holding “that CREW lacks standing to assert
informational injury premised on a supported failure to make disclosures required by FECA.”).

Court said nothing in Baker to abrogate Coopers & Lybrand’s “exceptional circumstances”
burden. It merely explained that for class certifications, a later rule provided different
interlocutory standards. Id. at 1709. Nor do the other cases cited by AAN cast doubt on the
exacting standard set forth in Coopers & Lybrand.
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But, as the Court explained in detail, those cases are readily distinguishable based on the
information CREW sought. CREW III, 2019 WL 4750248, at *7 (“[T]he nature of the
information allegedly withheld is critical to the standing analysis”). For example, AAN
continues to quote from the first half of the Circuit’s injury-in-fact discussion in CREW v. FEC
(“Americans for Tax Reform”), 475 F.3d 337, 339 (D.C. Cir. 2007), to argue that CREW must
be a voter or have members who vote to be injured by a lack of information. Reply at 5. But it
omits the second part of the discussion about the injury to CREW’s ability to inform others.
There the Circuit held that CREW did not suffer an injury because the particular information
sought “would add only a trifle to the store of information about the transaction already publicly
available.” Americans for Tax Reform, 475 F.3d at 340. That is not the case here. A “different
outcome based on different facts” simply does not establish “a substantial ground for difference
of opinion” that CREW has standing in this case. See Selden v. Airbnb, Inc., No. 16-cv-933,
2016 WL 7373776, at *1 (Dec. 19, 2016).
B. Reviewability
Like standing, the Court’s finding on reviewability “involves a controlling question of
law” and reversal on appeal would “materially advance the ultimate termination of the
litigation.” See 28 U.S.C. § 1292(b). Indeed, it would end the case. And the Court
acknowledges that it has suggested that this issue may be appropriate for interlocutory appeal
given the split in the panel in CREW v. FEC (“CHGO”), 892 F.3d 434 (D.C. Cir. 2018), and
Judge Griffith’s concurrence to the denial of rehearing en banc. Tr. Hr’g at 34–35, 50–51.
Those opinions suggested to the Court that the Circuit might be inclined to revisit the extent to
which exercises of prosecutorial discretion foreclose judicial review of the FEC’s dismissal of a
complaint.

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Upon further reflection, however, the Court concludes that this is not a case that raises a
“substantial difference of opinion.” See 28 U.S.C. § 1292(b). While it may still be true that the
Circuit will wish to reconsider the reviewability of FEC dismissals in general, this case is not the
appropriate vehicle because, in the Court’s view, the issue here is not a particularly close call. In
reaching its reviewability ruling, the Court faithfully applied CHGO, as well as prior Supreme
Court and Circuit precedent, to hold that FEC dismissals based on discretion rooted entirely in
legal conclusions are reviewable. See CREW III, 2019 WL 4750248 at *12; see also CHGO,
892 F.3d at 441 & n.11. AAN has not offered any case that conflicts with this holding. It merely
disagrees with it, which is not enough to establish a substantial ground for difference of opinion.
See Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 104 (D.D.C. 2005) (noting that a “mere
claim that the district court’s ruling was incorrect” is not enough to establish “a substantial
ground for difference of opinion”). The only case AAN cites for the contrary proposition
actually supports this Court’s holding. Judge Contreras, facing a similar case with different facts
post-CHGO, reached the same conclusion: When the FEC’s invocation of prosecutorial
discretion is based on legal analysis, it does not preclude judicial review under CHGO. See
CREW v. FEC (“New Models”), 380 F. Supp. 3d 30, 42 n.12 (D.D.C. 2019). He found that,
unlike here, the controlling Commissioners had grounded their dismissal in part on prudential
factors, which precluded review. Id. at 37–38 (describing the prudential factors the controlling
Commissioners listed).
AAN also emphasizes that, as the first citizen suit brought under FECA, this case raises
an issue of first impression. While that may weigh in favor of certifying an interlocutory appeal,
it alone is not enough. See Washington Tennis & Educ. Found., Inv. v. Clark Nexen, Inc., 324 F.
Supp. 3d 128, 145 (D.D.C. 2018) (explaining that an issue of “first impression in this Circuit . . .

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does not require, or [on its own] justify, certification of an interlocutory appeal”). There must be
something more to suggest that there is the possibility for “substantial difference of opinion.”
See, e.g., Government of Guam v. United States, No. 17-cv-2487, 2019 WL 1003606 (D.D.C.
Feb. 28, 2019) (finding a substantial ground for difference of opinion when the issue was one of
first impression in this Circuit and there was a deep circuit split); Kennedy v. District of
Columbia, 145 F. Supp. 3d 46 (D.D.C. 2015) (finding a substantial ground for difference of
opinion when the issue was one of first impression and there was a contradictory holding in the
District of Connecticut as well as an EEOC guidance document that disagreed). AAN has not
provided anything else.
What’s more, “a court faced with a motion for certification must analyze the strength of
the arguments in opposition to the challenged ruling to decide whether the issue is truly one on
which there is a substantial ground for dispute.” APCC Srvs., 297 F. Supp. 2d at 107. AAN’s
disagreement with the Court’s opinion is largely factual and is not enough to meet the high bar
for interlocutory appeal. The concurring Commissioners mentioned prosecutorial discretion only
twice in their first Statement of Reasons, and each time it was tied to legal analysis. And
importantly, those passing references to prosecutorial discretion were made only in the first
Statement of Reasons, which was superseded by the second Statement of Reasons. In the
operative statement, the controlling Commissioners never mentioned discretion, relying
exclusively on legal conclusions to dismiss CREW’s complaint. There are a host of D.C. Circuit
and Supreme Court opinions acknowledging that FEC dismissals are reviewable when they are
based entirely on legal conclusions.
Lest there be any doubt, the Circuit has already decided that this question does not
warrant a premature appeal in this case. As AAN acknowledges in its Motion, the Circuit had

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recently handed down CHGO the last time it sought an appeal of one of this Court’s non-final
orders. AAN expressly raised the reviewability issue with the motions panel, see AAN’s Mot.
for Summ. Reversal and Vacatur, CREW v. FEC, No. 18-5136 (D.C. Cir. June 25, 2018), and the
Circuit decided that AAN would have to wait for a final order, see Order, CREW v. FEC, No.
18-5136 (D.C. Cir. Sept. 19, 2018) (per curiam). This Court sees no reason to depart from that
result now.
C. Merits of the Court’s “Contrary to Law” Findings in CREW I & CREW II
AAN seeks, for the third time, to obtain review of this Court’s decisions in CREW I and
CREW II prior to a final order. As an intervenor, AAN sought review from the Circuit after each
of those decisions and was rebuffed each time. See CREW v. FEC, No.16-5300 (D.C. Cir.
appeal docketed Oct. 24, 2016); CREW v. FEC, No. 18-5136 (D.C. Cir. appeal docketed May 9,
2018). The Circuit twice explained that AAN must await a final decision on the merits, see
Order, CREW v. FEC, No. 16-5300 (D.C. Cir. Apr. 4, 2017) (per curiam); Order, CREW v.
FEC, No. 18-5136 (D.C. Cir. Sept. 19, 2018) (per curiam), which still is yet to come. AAN has
provided the Court no reason to disagree with the Circuit. Either party may appeal the merits of
this case once the Court issues a final, appealable order.
D. Remedies
Finally, AAN seeks an interlocutory review of the Court’s observations about potential
remedies in this case. But, as CREW points out and AAN concedes, the Court expressly has not
decided the scope of its remedial powers. See CREW III, 2019 WL 4750248, at *14 (“The Court
. . . reserves the flexibility to consider whether, if a registration violation is found, the proper
remedy would be to require AAN to disclose reporting information from post-June 2011.”).
Thus, there is nothing for the Circuit to review even if the Court certified the question for appeal.

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See Ray v. Am. Nat’l Red Cross, 921 F.2d 324, 325 (D.C. Cir. 1990) (“The basic requirement of
an interlocutory appeal under section 1292(b) is that the district court have made an order. The
statute does not contemplate that a district judge may simply certify a question without first
deciding it.”) (internal quotation omitted). If AAN succeeds on the merits, this point will
become moot; and if it fails, it will have the opportunity to explain why the Court’s initial
inclinations are wrong. It would therefore be premature for the Circuit to consider remedies for
potential FECA violations that have yet to be established.
III. Conclusion
For the foregoing reasons, it is hereby
ORDERED that [ECF No. 33] Defendant’s Motion for Certification for Interlocutory
Appeal is DENIED. It is further
ORDERED that [ECF No. 33] Defendant’s Motion for a Stay Pending Interlocutory
Appeal is DENIED as moot.
SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge
Date: November 21, 2019

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