Doe v. Fed. Election Comm'n, Civil Action No. 17–2694 (ABJ)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtAMY BERMAN JACKSON, United States District Judge
Citation302 F.Supp.3d 160
Parties John DOE 1 & John Doe 2, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant.
Docket NumberCivil Action No. 17–2694 (ABJ)
Decision Date23 March 2018

302 F.Supp.3d 160

John DOE 1 & John Doe 2, Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.

Civil Action No. 17–2694 (ABJ)

United States District Court, District of Columbia.

Signed March 23, 2018
As Amended May 29, 2018


302 F.Supp.3d 161

Adam L. Fotiades, William W. Taylor, III, Dermot W. Lynch, Zuckerman Spaeder, LLP, Kathleen C. Cooperstein, Vinson & Elkins LLP, Washington, DC, for Plaintiffs.

Charles Kitcher, Gregory John Mueller, Haven G. Ward, Kevin Deeley, Federal Election Commission, Washington, DC, for Defendant.

AMENDED MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

302 F.Supp.3d 162

Plaintiffs 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.

For the reasons explained below, the Court will not enjoin defendant's disclosure of plaintiffs' identities pursuant to the agency's disclosure policy.

BACKGROUND

The 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, 118 S.Ct. 1777, 141 L.Ed.2d 10 (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.

FACTUAL AND PROCEDURAL HISTORY

On 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],1 (Redacted) [Dkt. # 13] ("Pls.' Mot.") at 2–3;

302 F.Supp.3d 163

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, https://www.fec.gov/files/legal/murs/6920/17044434345.pdf.

The 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 Integrity2 —had transmitted funds to Government Integrity immediately before that.3 See Third General Counsel's Report (Sept. 15, 2017) at 6, https://www.fec.gov/files/legal/murs/6920/17044435484.pdf.

On 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.

On 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), https://www.fec.gov/files/legal/murs/6920/17044434647.pdf. 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.

Thereafter, 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), https://www.fec.gov/files/legal/murs/6920/17044434742.pdf. That agreement concluded MUR 6920. Id. Government Integrity agreed not to contest the Commission's

302 F.Supp.3d 164

finding against it any further, and the respondents collectively agreed to pay a civil penalty of $350,000. Def.'s Opp. at 2.

On 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).

Letter from Antoinette Fuoto, FEC, to Anne L. Weismann, CREW (Nov. 3, 2017), https://www.fec.gov/files/legal/murs/6920/17044434744.pdf ("FEC Closing Letter"), at 1.

The FEC 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").

Counsel 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.

On 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.

On the 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...

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4 practice notes
  • U.S. Office of Pers. Mgmt. Data Sec. Breach Litig. v. Office of Pers. Mgmt., No. 17-5217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 2019
    ...1 v. Buratai , 318 F. Supp. 3d 218 (D.D.C. 2018) ; Doe v. George Washington Univ. , 305 F. Supp. 3d 126 (D.D.C. 2018) ; Doe 1 v. FCC , 302 F. Supp. 3d 160 (D.D.C. 2018) ; Doe v. Mattis , 288 F. Supp. 3d 195 (D.D.C. 2018) ; Does 1–144 v. Chiquita Brands Int'l, Inc. , 285 F. Supp. 3d 228 (D.D......
  • Am. Fed'n of Gov't Emps. v. Office of Pers. Mgmt. (In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.), No. 17-5217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 2019
    ...Doe 1 v. Buratai, 318 F. Supp. 3d 218 (D.D.C. 2018); Doe v. George Washington Univ., 305 F. Supp. 3d 126 (D.D.C. 2018); Doe 1 v. FCC, 302 F. Supp. 3d 160 (D.D.C. 2018); Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018); Does 1-144 v. Chiquita Brands Int'l, Inc., 285 F. Supp. 3d 228 (D.D.C. 2......
  • John Doe v. Fed. Election Comm'n, No. 18-5099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 12, 2019
    ...releasing information identifying a trust and its trustee in connection with a misreported federal campaign contribution. Doe v. FEC , 302 F.Supp.3d 160 (D.D.C. 2018).Plaintiffs — the trust and its trustee — appear incognita as John Doe 2 and John Doe 1. They claim that the Commission’s rel......
  • Citizens for Responsibility & Ethics v. Fed. Election Comm'n, Civil Action No. 17-2770 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 27, 2018
    ...identities remain redacted pending an appeal of this Court's ruling in an earlier related case. See Doe 1 v. Fed. Election Comm'n , 302 F.Supp.3d 160 (D.D.C. 2018) (ruling that the identities of John Doe 1 and 2 may be revealed as part of the agency's publication of its investigative file);......
4 cases
  • U.S. Office of Pers. Mgmt. Data Sec. Breach Litig. v. Office of Pers. Mgmt., No. 17-5217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 2019
    ...1 v. Buratai , 318 F. Supp. 3d 218 (D.D.C. 2018) ; Doe v. George Washington Univ. , 305 F. Supp. 3d 126 (D.D.C. 2018) ; Doe 1 v. FCC , 302 F. Supp. 3d 160 (D.D.C. 2018) ; Doe v. Mattis , 288 F. Supp. 3d 195 (D.D.C. 2018) ; Does 1–144 v. Chiquita Brands Int'l, Inc. , 285 F. Supp. 3d 228 (D.D......
  • Am. Fed'n of Gov't Emps. v. Office of Pers. Mgmt. (In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.), No. 17-5217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 2019
    ...Doe 1 v. Buratai, 318 F. Supp. 3d 218 (D.D.C. 2018); Doe v. George Washington Univ., 305 F. Supp. 3d 126 (D.D.C. 2018); Doe 1 v. FCC, 302 F. Supp. 3d 160 (D.D.C. 2018); Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018); Does 1-144 v. Chiquita Brands Int'l, Inc., 285 F. Supp. 3d 228 (D.D.C. 2......
  • John Doe v. Fed. Election Comm'n, No. 18-5099
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 12, 2019
    ...releasing information identifying a trust and its trustee in connection with a misreported federal campaign contribution. Doe v. FEC , 302 F.Supp.3d 160 (D.D.C. 2018).Plaintiffs — the trust and its trustee — appear incognita as John Doe 2 and John Doe 1. They claim that the Commission’s rel......
  • Citizens for Responsibility & Ethics v. Fed. Election Comm'n, Civil Action No. 17-2770 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 27, 2018
    ...identities remain redacted pending an appeal of this Court's ruling in an earlier related case. See Doe 1 v. Fed. Election Comm'n , 302 F.Supp.3d 160 (D.D.C. 2018) (ruling that the identities of John Doe 1 and 2 may be revealed as part of the agency's publication of its investigative file);......

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