United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
AMERICAN ACTION NETWORK, Defendant.
OPINION AND ORDER
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
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]
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.”). 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.
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 . . . 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
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