United States District Court, District of Columbia
AMENDED MEMORANDUM OPINION
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
John Doe 1 and John Doe 2, a trustee and the trust, challenge
the decision of the Federal Election Commission
(“FEC”) to disclose their identities when it
publicly releases the file pertaining to an investigation
that is now closed. Plaintiffs, whose names and identifying
information appear in the file, assert that the agency's
decision is unlawful because releasing their identities would
violate the Federal Election Campaign Act and its
regulations, the Freedom of Information Act, and
plaintiff's rights under the First Amendment of the U.S.
Constitution. They have brought this case under the
Administrative Procedure Act and ask the Court to enjoin the
agency from disclosing their identities as part of its
release of the investigative file.
reasons explained below, the Court will not enjoin
defendant's disclosure of plaintiffs' identities
pursuant to the agency's disclosure policy.
Federal Election Campaign Act (“FECA” or
“the Act”) is a statute that imposes extensive
recordkeeping and disclosure requirements of campaign
contributions in an effort “to remedy corruption of the
political process.” FEC v. Akins, 524 U.S. 11,
11 (1998). Among its requirements, the Act prohibits
“mak[ing] a contribution in the name of another person
or knowingly permit[ting] his name to be used to effect such
a contribution” or “knowingly accept[ing] a
contribution made by one person in the name of another
person.” 52 U.S.C. § 30122. The Act established
the Federal Election Commission, and it requires the agency
to investigate violations of the Act. 52 U.S.C. §§
30106(a)-(b), 30107(a). It also sets forth requirements for
how the agency's investigations are handled, including
the public disclosure of the results of investigations and of
the materials and information uncovered in them. See,
e.g., 52 USC §§ 30109(a)(12)(A);
(a)(4)(B)(ii). This case concerns whether the identities of
an individual and an entity, who were not named as
respondents in an FEC investigation, but were alleged to have
had some role in or connection to the activities being
investigated, may be disclosed by the agency as part of the
release of its investigative materials.
AND PROCEDURAL HISTORY
February 27, 2015, the FEC received an administrative
complaint from Citizens for Responsibility and Ethics in
Washington (“CREW”), alleging that American
Conservative Union, Now or Never PAC, the PAC's treasurer
James C. Thomas III, and an unknown respondent violated the
Federal Election Campaign Act when American Conservative
Union made a $1.71 million contribution, which it received
from an unknown respondent, to Now or Never PAC. See
Pls.' Emergency Mot. for TRO and Prelim. Inj. and Mem. of
P. & A. in Supp., (Sealed) [Dkt. # 4],  (Redacted) [Dkt.
# 13] (“Pls.' Mot.”) at 2-3; Decl. of John
Doe 1, (Sealed) [Dkt. # 4-1], (Redacted) [Dkt. # 13-1] ¶
3; Resp. to Pls.' Mot., (Sealed) [Dkt. # 8] (Redacted)
[Dkt. # 16] (“Def's. Opp.”) at 1; see
also CREW's Admin. Compl., ¶¶ 1, 13-20,
agency initiated an investigation based on these allegations,
Matter Under Review (“MUR”) 6920, and it
identified Government Integrity LLC as the “unknown
respondent.” Def.'s Opp. at 1. The FEC's Office
of General Counsel (“OCG”) learned through
discovery that Government Integrity wired $1.8 million to
American Conservative Union on the same day that American
Conservative Union sent $1.7 million to Now or Never PAC and
that John Doe 2 - which had a relationship with Government
Integrity - had transmitted funds to Government
Integrity immediately before that. See Third General
Counsel's Report (Sept. 15, 2017) at 6,
August 10, 2017, the OGC served a subpoena for information on
plaintiffs John Doe 1 and John Doe 2. Def.'s Opp. at 1-2.
Plaintiffs refused to respond to the subpoena, Def.'s
Opp. at 1-2, and on September 15, 2017, the OGC recommended
that the Commission find reason to believe that plaintiffs
violated 52 U.S.C. § 30122 and authorize the filing of a
civil action to enforce the subpoena. Pls.' Reply Mem. in
Supp. of Pls.' Mot., (Sealed) [Dkt. # 8]; (Redacted)
[Dkt. # 25] (“Pls.' Reply”) at 3; Third
General Counsel's Report at 12-13.
September 20, 2017, the Commission rejected the OGC
recommendation by a vote of 3 to 2. Pls.' Reply at 3;
Def.'s Opp. at 2; Certification (Sept. 20, 2017),
That same day, the Commission voted 5 to 0 to authorize the
OGC to pursue conciliation with American Conservative Union
and “pre-probable cause” conciliation with
Government Integrity, Now or Never PAC, and Mr. Thomas.
Id. Finally, it voted 5 to 0 to “[t]ake no
action at this time on the remaining recommendations”
of the OGC. Id. The FEC did not inform plaintiffs of
the OGC's allegations and recommendations. Pls.'
Reply at 3-4.
the agency entered into conciliation discussions with
respondents to the investigation and ultimately reached a
conciliation agreement with them. See Def.'s
Opp. at 2; Pls.' Reply at 4. On October 24, 2017, the
Commission voted unanimously to approve the conciliation
agreement, which involved Government Integrity, American
Conservative Union, Now or Never PAC, and James C. Thomas
III. Def.'s Opp. at 2; Certification (Oct. 24, 2017),
That agreement concluded MUR 6920. Id. Government
Integrity agreed not to contest the Commission's finding
against it any further, and the respondents collectively
agreed to pay a civil penalty of $350, 000. Def.'s Opp.
November 3, 2017, the FEC notified CREW of the results of its
investigation, advising that:
the Commission found that there was probable cause to believe
American Conservative Union violated 52 U.S.C. § 30122 .
. . . The Commission also found reason to believe that
Government Integrity, LLC, violated 52 U.S.C. § 30122;
that Now or Never PAC and James C. Thomas, III in his
official capacity as treasurer knowingly and willfully
violated 52 U.S.C. §§ 30122 and 30104(b); and that
James C. Thomas, III knowingly and willfully violated 52
U.S.C. §§ 30122 and 30104(b).
from Antoinette Fuoto, FEC, to Anne L. Weismann, CREW (Nov.
(“FEC Closing Letter”), at 1.
also advised that pursuant to its disclosure policy,
“[d]ocuments related to the case [would] be placed on
the public record within 30 days” - or by December 3,
2017. FEC Closing Letter at 1, citing Disclosure of Certain
Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,
702 (Aug. 2, 2016) (“Disclosure Policy”).
for plaintiffs and counsel for Government Integrity objected
to the publication of their clients' names and
identifying information in connection with the release of the
investigative file. Pls.' Mot. at 3. While the agency was
considering these objections, and after the 30-day deadline
to release the investigation file had passed, CREW contacted
the agency to ask when it would publish the file. Def.'s
Opp. at 3.
December 12, 2017, the FEC told counsel for Government
Integrity that, pursuant to its disclosure policy, the agency
would not redact plaintiffs' names when it released the
investigative file. Pls.' Mot. at 3. Two days later, on
December 14, the FEC advised plaintiffs' counsel of this
decision. Pls.' Reply at 4; Def.'s Opp. at 3.
Plaintiffs asked the agency to wait two business days to
publish the file, and the agency agreed to wait until
December 18, 2017 at 5:00 p.m. or later to do so. Pls.'
Mot. at 4; Def.'s Opp. at 3.
next day, December 15, 2017, plaintiffs filed this lawsuit.
Compl., (Sealed) [Dkt. # 1]; (Redacted) [Dkt. # 12];
Pls.' Mot. They filed a sealed complaint and a sealed
motion for a temporary restraining order, asking the Court to
enjoin the agency from releasing their identities in its
investigative file. On December 18, 2017, defendant filed its
opposition to plaintiffs' motion, Def.'s Opp., and on
that day, the Court held a sealed hearing in which the FEC
agreed to redact plaintiffs' names and any other
identifying information from its investigative file and not
publish the redacted information until further order of the
Court in this case. Min. Order (Dec. 18. 2017). In light of
that agreement, the Court denied plaintiffs' motion for a
temporary restraining order as moot and consolidated the
motion for a preliminary injunction with the merits of the
case. Id., citing Fed. R. Civ. Proc. 65.
December 19, 2017, Commissioner Ellen Weintraub released
through Twitter a redacted version of a Statement of Reasons
concerning this matter and the September 20 vote of 2 to 3
against authorizing action to enforce the subpoena against
plaintiffs. Pls.' Reply, Ex. C; Commissioner Weintraub
Statement of Reasons,
(“Weintraub Statement of Reasons”). On December
20, 2017, Commission Vice Chair Caroline Hunter and
Commissioner Lee Goodman issued their own Statement of
Reasons about the vote. Statement of Reasons (Dec. 20, 2017),
(“Hunter and Goodman Statement of Reasons”).
December 22, 2017, defendant filed notice with the Court that
it had published a redacted version of the investigative
file. Notice [Dkt. # 20]. On January 3, 2018, plaintiffs
filed their reply in support of their motion. Pls.'
Reply. Finally, on February 12, 2018, CREW filed an amicus
brief in this matter. Brief of CREW and Anne Weismann as Amici
Curiae [Dkt. # 45].
Administrative Procedure Act (“APA”) establishes
the scope of judicial review of agency action. See
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 545-49 (1978). It requires
courts to “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law, ” in excess of statutory
authority, or “without observance of procedure required
by law.” 5 U.S.C. §§ 706(2)(A), (C) and (D).
are required to analyze an agency's interpretation of a
statute by following the two-step procedure set forth in
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). First, the court must
determine “whether Congress has directly spoken to the
precise question at issue.” Id. at 842.
“If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of
Congress.” Id. at 842-43. If the court
concludes that the statute is either silent or ambiguous, the
second step of the court's review process is to determine
whether the interpretation proffered by the agency is
“based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843.
reviewing court reaches the second step, it must accord
“considerable weight” to an executive
agency's construction of a statutory scheme it has been
“entrusted to administer.” Id. at 844.
“[U]nder Chevron, courts are bound to uphold
an agency interpretation as long as it is reasonable -
regardless whether there may be other reasonable or, even
more reasonable, views.” Serono Labs., Inc. v.
Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998). And the
court must defer to an agency's reading of its own
regulations unless it is “plainly erroneous or
inconsistent with the regulation.” Id. at 1320
(internal quotation marks omitted).
Federal Election Campaign Act has a number of provisions that
address the confidentiality of investigation materials. The
Court has concluded that the issue cannot be resolved at the
Chevron step one stage, since none of the statutory
provision cited by the parties speaks directly to the matter.
Disclosure in this case is neither barred by 52 U.S.C. §
30109(a)(4)(B)(i), as plaintiffs contend,
nor required by section 30109(a)(4)(B)(ii), as the FEC
Federal Election Commission's administrative enforcement
authority is set forth in 52 U.S.C § 30109. Subsection
(a)(4) specifies the informal methods and procedures the
agency may invoke to correct or prevent violations of FECA.
Id. at § 30109(a)(4). Subsection (a)(4)(A)
requires the FEC to attempt to correct or prevent a violation
through a number of informal methods, and it authorizes the
agency to enter into conciliation agreements with any person
involved. Id. at § 30109(a)(4)(A). “A
conciliation agreement, unless violated, is a complete bar to
any further action by the Commission.” Id.
Commission seeks to disclose its investigative file for MUR
6920 pursuant to subsection (a)(4)(B), which governs
disclosures by the agency within the context of these
conciliation attempts and agreements. Def.'s Opp. at 4.
Subsection (a)(4)(B)(i) states the following with regard to
No action by the Commission or any person, and no information
derived, in connection with any conciliation attempt by the
Commission under subparagraph (A) may be made public by the
Commission without the ...