[00:00:00] Speaker 02:
Case number 20-5159, Campaign Legal Center Appellants vs. Federal Election Commission.

[00:00:07] Speaker 02:
Mr. Gaber for the Appellant, Ms.

[00:00:09] Speaker 02:
Holman for the Appellate.

[00:00:12] Speaker 01:
Mr. Gaber, good morning.

[00:00:14] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
May I please record Mark Gaber for Appellants.

[00:00:17] Speaker 04:
Congress conferred upon CLC a right to timely agency action on its administrative complaint filed with the FEC and Congress and the FEC have conferred upon CLC the right to receive information upon the adjudication of CLC's administrative complaint.

[00:00:35] Speaker 04:
By failing to act for over four years, the FEC has denied both rights to CLC and these injuries fall squarely within this court's precedent, recognizing plaintiffs have standing to pursue their statutory rights to information and in this case to the right to timely agency action.

[00:00:56] Speaker 04:
And this has been true across a number of contexts.

[00:01:00] Speaker 04:
In the Sunshine Act case, the Rushforth case, this court recognized and reaffirmed in the Zivotovsky case that a plaintiff has standing to pursue a statutory right conferred by Congress to remedy that harm.

[00:01:14] Speaker 04:
In the FOIA cases, this court has recognized

[00:01:17] Speaker 04:
that Congress can confer a right, in that case, to information recognized by the Supreme Court in Akins and the FEC context in particular.

[00:01:27] Speaker 04:
And that standing exists regardless, without asking the question of what separate harm has the plaintiff experienced.

[00:01:38] Speaker 04:
This court has reaffirmed that recently in the McGahn case.

[00:01:41] Speaker 04:
And again, in the recent Murphy versus or Maloney versus Murphy case has spoken to the particularized type of injury that one has when Congress gives to an individual in the case of Murphy map certain members of Congress, the right to sue that it does not bestow on others who may have brought that claim, if they so chose.

[00:02:08] Speaker 04:
The FEC and the amici focus on the common cause case, but in common cause, the only issue before this court was whether the plaintiff had standing to challenge the dismissal of their claim.

[00:02:24] Speaker 04:
And although the statutory provision that gives CLC the right to sue here is one statute, it's one provision, it's a long paragraph with a series of sentences, there's two distinct causes of action in that provision.

[00:02:40] Speaker 04:
And there's two distinct types of harm that a plaintiff might have under that provision.

[00:02:47] Speaker 04:
And so in common cause the court was only presented with a dismissal, a question about whether a dismissal was appropriate.

[00:02:56] Speaker 04:
And there the harm is whether or not the substantive area of FEC law harms the plaintiff.

[00:03:05] Speaker 04:
Here, this is a very different context.

[00:03:07] Speaker 04:
And the harm is whether the delay in acting has harmed.

[00:03:14] Speaker 04:
And in this context, there's also the informational harm that we've pointed out in our brief.

[00:03:23] Speaker 00:
You didn't argue informational harm in your complaint or below.

[00:03:29] Speaker 04:
Your honor, the informational aspect is brought up in the complaint in paragraph three, the fact that CLC uses information to do public education campaigns, to inform voters of illegal contributions.

[00:03:50] Speaker 04:
And I would note that the FEC has not challenged the CLC's raising of the informational harm on appeal

[00:03:57] Speaker 00:
We have an independent obligation to determine whether you have standing.

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Doesn't matter whether the FEC raises it or not.

[00:04:10] Speaker 04:
That's right, Your Honor.

[00:04:11] Speaker 04:
And I would say that in this case, this is a legal argument.

[00:04:17] Speaker 04:
The law gives CLC the right to information, including the Federal Register official policy of the FEC lists of bulleted.

[00:04:27] Speaker 01:
But you still have to assert a claim.

[00:04:29] Speaker 01:
What paragraph did you say your complaint

[00:04:32] Speaker 01:
Makes this claim.

[00:04:33] Speaker 04:
Well, in paragraph three, which is the kind of general paragraph that discusses the parties, it talks about CLCs, you know, what CLC does, the fact that CLC engages in public education.

[00:04:47] Speaker 04:
And this legal argument is directly related.

[00:04:52] Speaker 00:
But that's not a claim.

[00:04:53] Speaker 00:
Just saying that you collect information doesn't

[00:04:59] Speaker 00:
isn't a claim that's not asserting a claim of informational injury.

[00:05:03] Speaker 04:
Well, the claim the claim your honor is the is the delay enacting and by delaying the FEC has denied CLC access to the information.

[00:05:15] Speaker 04:
There isn't a you know this isn't your claim is based on delay.

[00:05:21] Speaker 00:
Your claim is not that you have been

[00:05:24] Speaker 00:
denied information your claim is that you were entitled to a decision or action within a certain period of time and you didn't get it that's your claim and that's the claim that the district court analyzed and that's the district court that's the claim that the district court found was wanting and there's there's two types of harm that

[00:05:49] Speaker 04:
claim.

[00:05:50] Speaker 04:
And so because FICA prevents a plaintiff or any person from accessing this information until the administrative complaint is adjudicated and a decision is announced, CLC couldn't bring, for example, a FOIA claim here seeking this information.

[00:06:13] Speaker 04:
The only way CLC can get this information is if its complaint is adjudicated.

[00:06:18] Speaker 04:
And so the only claim CLC could make here is a delay claim.

[00:06:22] Speaker 04:
But the harm that flows from that delay is both the denial of the right to timely agency action, which is an independent statutory right that Congress has conferred, that confers standing here.

[00:06:36] Speaker 04:
and also the fact that by using a delay, the FEC can permanently deny access to this information and in so doing prevent CLC from being able to bring a separate claim under FOIA because the FECA requires the information to remain confidential until the claim, the administrative complaint is adjudicated.

[00:07:01] Speaker 03:
On your delay claim, there are just a lot of federal statutes that say people who are aggrieved by agency action can bring a lawsuit.

[00:07:13] Speaker 03:
That's a lot of cause of action provisions.

[00:07:19] Speaker 03:
What about this statute makes that cause of action provision, that reference to being aggrieved, create a legal right in a way

[00:07:28] Speaker 03:
that wouldn't do so for, I can't imagine how many other statutes.

[00:07:34] Speaker 03:
What I'm asking you is how could we write an opinion in your favor that would distinguish every other statute that uses similar language?

[00:07:45] Speaker 04:
Two points, Your Honor.

[00:07:47] Speaker 04:
The first is that when Congress uses that phrase, aggrieved, the Supreme Court said that should be capping the standing nut

[00:07:56] Speaker 04:
widely.

[00:07:56] Speaker 04:
The second is that FECA, unlike I think most other statutes, actually provides some indication of what Congress thinks is the appropriate time period upon which to measure that delay.

[00:08:13] Speaker 04:
And that's different than most other statutes that do not do that, that for the APA, for example, has a more generalized provision.

[00:08:21] Speaker 03:
peer Congress in an area where it has- Do you agree that it's not a time limit for action?

[00:08:27] Speaker 03:
It's just a measurement for sort of a baseline to start evaluating their conduct.

[00:08:35] Speaker 03:
So I don't know how something that's not even a real time limit can be critical to creating a legal right just to action by the agency.

[00:08:49] Speaker 03:
So I agree that it's- Right, and the legal injury, when I say legal right, I meant legal right and legal injury just by the inaction.

[00:08:58] Speaker 04:
So I think it's more than just a jurisdictional, it's not just, you can file a lawsuit at 120 days.

[00:09:06] Speaker 04:
It is that, but in some case, Congress has given an indication of what it thinks in some cases,

[00:09:14] Speaker 04:
may be an unlawful delay.

[00:09:16] Speaker 04:
In some cases, it'll be 120 days.

[00:09:18] Speaker 04:
In other cases, it'll be longer than that.

[00:09:21] Speaker 03:
Is your position that every single time they use the word aggrieved and then have a time frame for anticipated agency action in every one of those statutes in the US code, those folks are legally injured for Article III standing purposes to file suit?

[00:09:41] Speaker 03:
just because they asked for agency action and it didn't happen within that non-limiting time period.

[00:09:49] Speaker 04:
No, Your Honor, I think that it's context specific and one within with respect to Congress, what was clear that part of the substantive importance of the statute is that responses happen quickly and otherwise that you can totally subvert the purpose of the statute and two, there's lots of statutes where Congress wants agents to act

[00:10:13] Speaker 03:
quickly, particularly if health and human welfare are at stake.

[00:10:18] Speaker 03:
So I'm not sure that is much of a distinction.

[00:10:21] Speaker 03:
I'm just not sure how one could write an opinion on your delay claim that would find standing in a way that's not going to open the doors pretty broadly.

[00:10:29] Speaker 03:
That's what I'm trying to get.

[00:10:30] Speaker 03:
So the fact that Congress put that, I mean, the only indication we have that they wanted them to act quickly is that timeframe.

[00:10:40] Speaker 03:
It's kind of bootstrapping to say that that's a difference.

[00:10:44] Speaker 04:
I'm red lights are flashing.

[00:10:46] Speaker 04:
I mean, may I answer?

[00:10:48] Speaker 01:
Go ahead.

[00:10:48] Speaker 04:
Thank you.

[00:10:50] Speaker 04:
I think an important thing that distinguishes this case from those other statutes is this informational component that goes along with the delay that is a right granted by statute.

[00:11:02] Speaker 03:
And I think anytime an agency doesn't act, someone could say, well, if they had, if they did act, I would have whatever information is created by their action.

[00:11:10] Speaker 04:
But I think this court's precedent in the PETA case and in the anti-divisection case makes this a stronger case for standing.

[00:11:19] Speaker 04:
But there is, unlike in PETA, where there was no statutory right to file a complaint and there was no statutory right to the information, it was just information that the USDA was voluntarily giving.

[00:11:33] Speaker 04:
here there is congress has given a set up a complaint process and given a right to timely action in that complaint process and has by statute by regulation and in the federal register uh set out information that you'll receive you must receive but the problem is is that you never said in your complaint anywhere that there was specific information that you hadn't received

[00:12:03] Speaker 00:
that if you had gotten it, you would do something with or that is harming you in any particular way because you haven't received that information.

[00:12:14] Speaker 04:
And your honor, I think that the FEC has challenged the standing sort of facially and not factually, and I think recognizes that there is this obligation to provide this information.

[00:12:28] Speaker 04:
And to the extent there is a pleading issue on that score, I would submit that the proper course would be to grant leave to add that

[00:12:37] Speaker 04:
that allegation, which I believe elevates sort of a form and not a substance issue.

[00:12:46] Speaker 03:
Can you tell me a case where this court has granted leave to amend or ordered the district court to grant leave to amend when you never asked the district court first?

[00:12:58] Speaker 04:
Off the top of my head, no, Your Honor, but

[00:13:02] Speaker 04:
But I would point out that this court has recognized that CLC uses this information in cases where CLC is the party.

[00:13:12] Speaker 03:
And that this is- CLC has alleged informational injury.

[00:13:18] Speaker 04:
Correct.

[00:13:19] Speaker 04:
But this is not an issue that either the MECUS or the FEC have raised.

[00:13:24] Speaker 04:
And I would say they have waived it.

[00:13:27] Speaker 01:
All right.

[00:13:27] Speaker 01:
If there are no more questions, we'll give you a couple of minutes and reply.

[00:13:30] Speaker 01:
Ms.

[00:13:30] Speaker 01:
Holman.

[00:13:37] Speaker 02:
Ms.

[00:13:37] Speaker 02:
Holman.

[00:13:39] Speaker 02:
May it please the court.

[00:13:41] Speaker 02:
My name is Elise Holman, and I represent the Federal Election Commission in this matter.

[00:13:46] Speaker 02:
The sole issue on appeal is whether repellents have standing to file suit against the SEC for its alleged failure to act on an administrative complaint.

[00:13:54] Speaker 02:
According to this court's decision in common cause, the SEC, the answer to that question is a resounding no.

[00:14:01] Speaker 02:
In Common Cause, the court held that Section 30109A8A of the Federal Election and Campaign Act creates a procedural right to sue, not standing.

[00:14:11] Speaker 02:
And the court further held that plaintiffs do not suffer informational injury if the information being repelled is simply the fact that a violation of FECA has occurred.

[00:14:21] Speaker 02:
Common Cause effectively forecloses standing in this matter because appellants have failed to distinguish their two alleged injuries from Common Cause's clear holdings.

[00:14:30] Speaker 03:
How would this statute ever be enforced if the FEC could simply just not act on anything that's filed?

[00:14:43] Speaker 02:
Your honor, it would be enforced if the plaintiffs actually first established that they had standing.

[00:14:50] Speaker 03:
It's not that... What kind of standing?

[00:14:54] Speaker 03:
If you're not actually sort of the someone running against somebody, the competitor, and it's not the type of claim that we had in Akins where even voters could say they need that information.

[00:15:07] Speaker 03:
In a case like this,

[00:15:12] Speaker 03:
who could ever sue if the FEC said, we just don't feel like doing this part of our job.

[00:15:21] Speaker 03:
I'm not saying this would happen here.

[00:15:22] Speaker 03:
The FEC just said that we don't want to deal with this stuff.

[00:15:27] Speaker 03:
I don't know what injury anyone's ever going to have in this context.

[00:15:32] Speaker 02:
Your Honor, you were correct that the plaintiffs in Akins would have standing in this circumstance.

[00:15:39] Speaker 02:
If a complainant had alleged that there were some nondisclosure, whether nondisclosure of a contribution or an expenditure, some sort of nondisclosure related to their underlying claim of an alleged FICA violation, then they could establish informational injury that could be sufficient for standing.

[00:16:02] Speaker 02:
However,

[00:16:04] Speaker 03:
How can they know what's an unknown disclosure or unknown contribution?

[00:16:12] Speaker 03:
How can people know an unknown contribution?

[00:16:17] Speaker 03:
Your honor, I believe that.

[00:16:20] Speaker 03:
Right, it was undisclosed.

[00:16:22] Speaker 03:
I'm sorry.

[00:16:22] Speaker 03:
That was your answer, right?

[00:16:23] Speaker 03:
It was undisclosed and they can sue, but of course it was undisclosed.

[00:16:27] Speaker 03:
Members of the public aren't going to know about it.

[00:16:29] Speaker 03:
That's the whole point of not disclosing it.

[00:16:32] Speaker 02:
Your Honor, often there are enforcement and administrative complaints filed claiming that disclosures were not properly reported.

[00:16:41] Speaker 02:
And it would be a similar situation here if they alleged that there was, I'm sorry.

[00:16:49] Speaker 03:
No, so people just proudly announced their violations of the law, hypothetically.

[00:16:54] Speaker 03:
Let's not talk about this case because we're not anywhere near a merit stage.

[00:16:57] Speaker 03:
But if, let's say someone is just sort of flagrantly making contributions in violation of the law.

[00:17:03] Speaker 03:
to a pack.

[00:17:06] Speaker 03:
They, they, they, they realized from this case that as long as they disclose them, they actually can't be stopped.

[00:17:14] Speaker 03:
And the FEC is like, we're not going to bother with these things.

[00:17:18] Speaker 03:
The statute, just Congress intended to just, the FEC just wouldn't, there'd be no enforcement of these problems.

[00:17:26] Speaker 02:
Well, your honor, I believe that what you're getting at, if they understand that, or if they know that a contribution has been made and that contribution they allege violates FECA and they bring a claim, but they don't disclose or they don't allege that they've suffered informational injury, then essentially their interest that they are asserting is an interest in enforcement of the law.

[00:17:52] Speaker 02:
which is not a legally cognizable interest that is sufficient to create standing.

[00:17:58] Speaker 03:
Well, what if their interest was, it's very hard for our members to participate in a voting system in which all of these illegal contributions are happening.

[00:18:07] Speaker 03:
Someone said we have members and they're now incentivized to vote because of this sort of pollution of the electoral system.

[00:18:16] Speaker 03:
To be clear, I'm talking about a hypothetical case.

[00:18:19] Speaker 03:
Would that be sufficient to have standing?

[00:18:24] Speaker 02:
Your Honor, I'm sorry, I don't think I heard all of your questions.

[00:18:27] Speaker 02:
I apologize.

[00:18:28] Speaker 03:
If an organization sued and said our members are disincentivized to participate in the electoral system, they're turned off.

[00:18:38] Speaker 03:
because there's all this corrupt money being donated and they cite a particular instance like was done here.

[00:18:47] Speaker 03:
They find sort of something that they believe was improper and they say it happened three times and this still colors their faith in the electoral system.

[00:18:59] Speaker 03:
They're no longer interested in voting or participating because it's not being policed the way it's supposed to be.

[00:19:06] Speaker 03:
Would that be a sufficient article for injury?

[00:19:11] Speaker 02:
No, Your Honor, I do not believe that it would because Section 30109 A and A creates a procedural right to sue.

[00:19:19] Speaker 02:
The complainants need to allege a harm to a substantive right.

[00:19:25] Speaker 02:
And I'm not sure that in that context they will have made a sufficient argument that a substantive right

[00:19:32] Speaker 02:
has been harmed.

[00:19:34] Speaker 03:
So the statute doesn't create a substantive right to an electoral system in which these types of unlawful donations aren't made?

[00:19:48] Speaker 02:
Your Honor, Section 30109 does not create a substantive right.

[00:19:52] Speaker 03:
It creates a procedural right system.

[00:19:55] Speaker 03:
Your injury doesn't have to be in the enforcement provision.

[00:19:58] Speaker 03:
Does the statute, does FECA protect the rights of voters?

[00:20:04] Speaker 03:
to the electoral system that's not polluted by what the statute defines as improper donations.

[00:20:12] Speaker 02:
Your Honor, I agree that that is the purpose of the Federal Election Campaign Act, to maintain integrity of the electoral system and to maintain the faith of the voters in the electoral system.

[00:20:28] Speaker 02:
But given that this is a procedural section in order to claim a violation of Section 30109A8A, they need to allege a substance of harm, which they have failed to do in this context.

[00:20:45] Speaker 03:
Section 30109.

[00:20:46] Speaker 03:
Your argument on informational standing focused on, as you said, they already have whatever information they might need.

[00:20:56] Speaker 03:
But you don't otherwise contest their standing to assert an informational standing case?

[00:21:04] Speaker 03:
You don't seem to contest that they haven't asserted an informational injury, and I'm curious about that.

[00:21:10] Speaker 02:
No, Your Honor, they haven't alleged an informational injury, as Your Honors were discussing earlier.

[00:21:16] Speaker 03:
Why does your brief argue the merits of whether there's an informational injury as opposed to whether they've even alleged one at all?

[00:21:26] Speaker 02:
Your honor, um, our brief worked off of the, uh, assumption that perhaps their complaints, um, sufficiently, uh, sufficiently way or, um, saved an informational argument.

[00:21:40] Speaker 02:
However, I agree that it absolutely did not explicitly allege informational injury.

[00:21:46] Speaker 02:
Um, and they certainly at the district court level did not rely on an allegation that they were entitled to FEC investigatory materials.

[00:21:54] Speaker 02:
But assuming that they had sufficiently alleged an informational injury, we engaged in a discussion of whether that injury was actually sufficient for Article III, and it is not.

[00:22:11] Speaker 03:
Somebody in their situation, so whether them or someone else, came forward and had identified a distinct concrete

[00:22:19] Speaker 03:
particularized injury from these unlawful donations.

[00:22:26] Speaker 03:
And the FEC found probable cause, went forward.

[00:22:35] Speaker 03:
What kind of documents would be created through that investigative process and the voting process by the commissioners?

[00:22:43] Speaker 03:
What kind of publicly, sorry, publicly available or publicly disclosable documents?

[00:22:48] Speaker 02:
Of course, Your Honor.

[00:22:49] Speaker 02:
Well, the documents cannot be disclosed until the resolution of the matter because FICO prohibits any information being disclosed while it's pending.

[00:22:58] Speaker 02:
But upon the resolution, the SEC releases the basis of its determinations and has a policy of generally releasing documents such as the general counsel's report, briefs, memos, votes, reasons to believe

[00:23:14] Speaker 02:
and similar sorts of documents in order to satisfy the regulations requirements of supplying the basis thereof.

[00:23:23] Speaker 03:
Okay, thank you.

[00:23:27] Speaker 02:
Of course.

[00:23:27] Speaker 02:
Your honors, neither of appellants alleged injuries amount to injury.

[00:23:33] Speaker 02:
In fact, the section does not create a substantive right to FEC action within a specified timeframe, and they have not alleged

[00:23:41] Speaker 02:
Your honors, I see that I have run out of time.

[00:23:43] Speaker 02:
May I briefly conclude?

[00:23:50] Speaker 03:
Yes, go ahead.

[00:23:52] Speaker 02:
Thank you.

[00:23:53] Speaker 02:
They have not sufficiently alleged informational injury because they have not been denied any of the information that FECA requires to be disclosed at this time.

[00:24:02] Speaker 02:
And the additional information that they seek are legal determinations that they are not entitled to.

[00:24:07] Speaker 02:
And because they have failed to establish injury, they have not demonstrated standing.

[00:24:12] Speaker 02:
And we would respectfully request that this court affirms the district court's dismissal of the appellant's complaint for lack of standing.

[00:24:18] Speaker 02:
Thank you.

[00:24:20] Speaker 03:
You want to go ahead and just take two minutes, Mr. Gaber.

[00:24:23] Speaker 04:
Two points in rebuttal, Your Honors.

[00:24:27] Speaker 04:
I'll start with where Council left off.

[00:24:32] Speaker 04:
I do not think it's the case, and this is court's precedent, do not make it the case that the only type of informational harm could be a reporting or disclosure violation.

[00:24:41] Speaker 04:
In the Friends of Animals case, the informational harm under the Endangered Species Act was the information sent along by the participants in the agency proceedings.

[00:24:53] Speaker 04:
And here under the FEC's policy in the Federal Register, we would be entitled to the respondents' responses and any information in the FEC's discovery that they produced.

[00:25:05] Speaker 04:
And that's similar in the

[00:25:08] Speaker 04:
in the PETA case with the Animal Welfare Act, that it's investigatory information that's provided that there's an entitlement to.

[00:25:18] Speaker 04:
And so to cabin informational standing in this case to just the reporting and disclosure substantive FICA violation would set a different precedent under FICA than exists in any of this case, in any of this court's precedent.

[00:25:32] Speaker 04:
Second, on the claim that this is just a mere procedural right, in Spokio, the Supreme Court said that the reason that some procedural rights will not confer standing is that there might not be any harm that flows from, for example, incorrect zip code.

[00:25:50] Speaker 04:
in the Fair Credit Reporting Act context.

[00:25:53] Speaker 04:
Here there's always harm that flows from the agency delay because one for the substantive enforcement of FICA and CLC's ability to educate people to decide whether or not they need to make a rulemaking if FEC is not interpreting the law correctly.

[00:26:13] Speaker 04:
We'll never know

[00:26:14] Speaker 04:
the FEC's interpretation if they never act and can't engage in any of those activities, but we will also never receive the information we're entitled to but can't make a claim about until the agency acts.

[00:26:28] Speaker 03:
The case is submitted.