IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and

DEMOCRACY 21,

 Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

 Defendant,

RIGHT TO RISE SUPER PAC, INC. 

 Proposed Intervenor-Defendant.

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Case No. 1:20-cv-00730

Hon. Christopher R. Cooper

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RIGHT TO RISE SUPER PAC, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ 

MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT FEDERAL 

ELECTION COMMISSION

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 1 of 17
TABLE OF CONTENTS

Page

i

TABLE OF AUTHORITIES......................................................................................................... ii

I. INTRODUCTION...................................................................................................................... 1

II. BACKGROUND....................................................................................................................... 2

A. The Remainder of Plaintiffs’ FECA Claim is Currently Subject to a 

Pending Motion for Reconsideration and/or Interlocutory Appeal ....................... 2

B. The FEC Cannot Proceed with an Enforcement Action or Appear in this 

Litigation Without the Affirmative Vote of Four Commissioners........................ 3

III. ARGUMENT........................................................................................................................... 4

A. The Court Should Deny Plaintiffs’ Request for a Default Judgment 

Because Plaintiffs Have Not Established a Claim or Right to Relief as 

Required Under Rule 55(d).................................................................................... 4

B. A Default Judgment Would Be Improper In This Multi-Defendant Case............. 9

IV. CONCLUSION...................................................................................................................... 12

CERTIFICATE OF SERVICE .................................................................................................... 13

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 2 of 17
ii

TABLE OF AUTHORITIES

Cases

Auleta v. United States Dep’t of Just., 80 F. Supp. 3d 198 (D.D.C. 2015).................................... 7

Baade v. Price, 175 F.R.D. 403 (D.D.C. 1997)............................................................................. 4

Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172 (D.D.C. 2004)...................... 6

Campaign Legal Ctr. v. Fed. Election Comm’n, 334 F.R.D. 1 (D.D.C. 2019) ..................... 10, 11

Carvajal v. Drug Enf't Agency, 246 F.R.D. 374 (D.D.C. 2007).................................................... 5

Citizens for Responsibility and Ethics in Washington v. FEC, No. 1:19-cv-2753 (D.D.C. 

Apr. 9, 2020)............................................................................................................................ 8

Crossroads Grassroots Pol’y Strategies v. Fed. Election Comm’n, 788 F.3d 312 (D.C. Cir. 

2015) ...................................................................................................................................... 10

Free Speech for People v. FEC, No. 19-CV-1722 (APM), 2020 WL 999205 (D.D.C. Mar. 

2, 2020) .................................................................................................................................... 7

Herbin v. Seau, 317 F. Supp. 3d 568 (D.D.C. 2018)..................................................................... 5

Hudson v. Ashley, 411 A.2d 963 (D.C. 1980)................................................................................ 9

Jackson v. Beech, 636 F.2d 831 (D.C. Cir. 1980)...................................................................... 4, 8

Kareem v. Haspel, 986 F.3d 859 (D.C. Cir. 2021) ........................................................................ 6

McNeil v. Harvey, No. CV 17-1720 (RC), 2018 WL 4623571 (D.D.C. Sept. 26, 2018).............. 7

Payne v. Barnhart, 725 F. Supp. 2d 113 (D.D.C. 2010)............................................................ 4, 6

Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002), aff'd, 333 F.3d 228 

(D.C. Cir. 2003) ....................................................................................................................... 7

Strong-Fisher v. LaHood, 611 F. Supp. 2d 49 (D.D.C. 2009)....................................................... 7

Webb v. D.C., 146 F.3d 964 (D.C. Cir. 1998)................................................................................ 4

Wertheimer v. Fed. Election Comm’n, 268 F.3d 1070 (D.C. Cir. 2001)....................................... 7

Whelan v. Abell, 953 F.2d 663 (D.C. Cir. 1992)............................................................................ 9

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iii

Statutes

52 U.S.C. § 30106(a)(1)................................................................................................................. 3

52 U.S.C. § 30106(c) ................................................................................................................. 3, 4

52 U.S.C. § 30109(a)(8)(A)................................................................................................. 1, 2, 10

52 U.S.C. § 30109(a)(8)(C) ......................................................................................................... 10

52 U.S.C. § 30145............................................................................................................ 4, 8, 9, 11

Rules

Fed. R. Civ. P. 12(b)(1).......................................................................................................... 2, 6, 7

Fed. R. Civ. P. 12(b)(6).............................................................................................................. 2, 5

Fed. R. Civ. P. 55(d) ............................................................................................................. passim

Miscellaneous

Federal Practice & Procedure § 2690 (2010)................................................................................. 9

Hunter, Caroline, How My FEC Colleague is Damaging the Agency and Misleading the 

Public (Oct. 22, 2019), https://politi.co/2zRfIJY..................................................................... 4

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 4 of 17
I. INTRODUCTION

Plaintiffs challenge as contrary to law the Federal Election Commission’s decision to not 

take public action on the administrative complaints that Plaintiffs filed against IntervenorDefendant Right to Rise Super Pac, Inc., among others. Seemingly unable to garner the four 

Commissioner votes required to authorize its general counsel to defend this suit, the FEC has not 

appeared in this action. As an intervening-defendant, however, Right to Rise has effectively taken 

the FEC’s place and presented meritorious defenses to Plaintiffs’ allegations. Indeed, less than two 

months ago, the Court dismissed the majority of Plaintiffs’ complaint and significantly narrowed 

Plaintiffs’ only remaining claim by granting in part Right to Rise’s motion to dismiss. ECF No. 

17. All that remains now of Plaintiffs’ suit is a limited claim for an alleged violation of the Federal 

Election Campaign Act (“FECA”). Importantly, Right to Rise submitted a motion seeking 

reconsideration of the February 19th Order, or to certify the Order for interlocutory appeal, which, 

if granted, would either dismiss the case in its entirety or set the stage for appeal of an issue that, 

if decided in favor of Right to Rise, would also result in the dismissal of this suit due to Plaintiffs’ 

lack of standing.

While Right to Rise’s potentially dispositive motion for reconsideration remains pending, 

Plaintiffs filed the instant motion for default judgment against the FEC seeking an order that the 

FEC’s decision to not take public action on the administrative complaints is contrary to law. 

Plaintiffs’ motion, however, is but a thinly veiled attempt to obtain an order setting the stage for a 

citizen-suit under 52 U.S.C. § 30109(a)(8)(A) despite the fact they lack standing in this suit, which 

is a precursor to any citizen-suit under FECA.

As explained below, Plaintiffs have not satisfied the burden for a default judgment against 

a United States agency. Plaintiffs cannot establish by a preponderance of evidence that the Court 

has subject matter jurisdiction over the remaining FECA claim—their alleged informational injury 

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 5 of 17
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fails as a matter of fact and law—and therefore cannot demonstrate a claim or right to relief as 

required to obtain a default judgment against the FEC under Rule 55(d). Further, what remains of 

Plaintiffs’ FECA claim is time-barred because the alleged violations occurred more than five years 

ago. Plaintiffs’ request for a default judgment conveniently ignores Right to Rise’s presence in this 

case as an intervening defendant and the irreconcilability that would result from a default judgment 

against the FEC. The Commission’s decision to not take public action amounts to a functional 

dismissal of Plaintiffs’ administrative complaints against Right to Rise, and Right to Rise must be 

afforded an opportunity to defend the FEC’s decision on its merits. The Court should deny 

Plaintiffs’ motion accordingly. 

II. BACKGROUND

A. The Remainder of Plaintiffs’ FECA Claim is Currently Subject to a Pending 

Motion for Reconsideration and/or Interlocutory Appeal 

In March and May of 2015, Plaintiffs filed two FEC complaints alleging FECA violations 

by Right to Rise Super PAC, Inc. (“Right to Rise”), Right to Rise PAC, and Governor John Ellis 

“Jeb” Bush. Compl. Ex. B. Mar. Admin. Compl., ECF No. 1-2; Compl. Ex. A., May Admin. 

Compl. ECF No. 1-1. The FEC designated Plaintiffs’ complaints as Matter Under Review 

(“MUR”) 6927. Many years later, Plaintiffs filed the present action seeking injunctive and 

declaratory relief to compel the FEC to take up their complaints under 52 U.S.C. § 30109(a)(8)(A). 

Compl. ¶ 2. After the Court granted Right to Rise’s motion to intervene in June 2020, Right to 

Rise moved to dismiss Plaintiffs’ complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules 

of Civil Procedure. 

On February 19, 2021, this Court issued a Memorandum Opinion and Order granting most 

of Right to Rise’s Motion to dismiss. ECF No. 17 (“February 19th Order”). Specifically, the Court 

held Plaintiffs failed to state a claim under the Administrative Procedure Act, and also that 

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Plaintiffs lacked standing to pursue their FECA claim as it relates to any alleged coordinated 

spending between Governor Bush and Right to Rise. Id. 12-15; 18-19. The Court, however, also

found that Plaintiffs sufficiently alleged an informational injury relating to the five-month period 

from January 2015 to June 2015, when Governor Bush was testing-the-waters as to a bid for the 

presidency. Id. at 10-12. As a result, the Court held that Plaintiffs had Article III standing to pursue 

that limited portion of their FECA claim. Id.

Right to Rise then filed a motion for reconsideration and/or certification for interlocutory 

appeal regarding that portion of the February 19th Order holding that Plaintiffs have standing to 

pursue a limited aspect of their FECA claim. ECF No. 19. In that motion, Right to Rise asserts that 

the February 19th Order’s conclusion that Plaintiffs had sufficiently alleged an informational injury 

relied on the wrong legal standard and was otherwise based on a misconception of the facts. Right 

to Rise’s motion is fully briefed and currently pending before the Court. 

B. The FEC Cannot Proceed with an Enforcement Action or Appear in this 

Litigation Without the Affirmative Vote of Four Commissioners 

To date, the Commission has not publicly acted on MUR 6927 and has not appeared in this 

litigation. Under FECA, the Commission consists of six voting members “appointed by the 

President, by and with the advice and consent of the Senate,” no more than three of which “may 

be affiliated with the same political party.” 52 U.S.C. § 30106(a)(1). FECA requires that “[a]ll 

decisions of the Commission with respect to the exercise of its duties and powers under the 

provisions of [FECA] shall be made by a majority vote of the members of the Commission,” with 

the exception that certain actions, such as enforcement decisions, may only be made with “the 

affirmative vote of 4 members of the Commission.” Id. § 30106(c). As for administrative

complaints such as those at issue in this case, if the Commission does not find reason to believe 

that a respondent violated FECA through an affirmative vote of at least four Commissioners within 

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five years of the date of the alleged violation, the Commission may not proceed with investigation 

of, or enforcement against, that respondent. Id. U.S.C. § 30145.

Similarly, the FEC cannot authorize its general counsel to defend a civil suit unless four 

Commissioners vote to authorize such a defense. Id. § 30106(c). Here, the FEC consisted of only 

three Commissioners from September 2019 through May 20, 2020. Although the Senate

subsequently approved a fourth, fifth, and sixth Commissioner, the FEC has not appeared in this

suit, as one of the Commissioners at the time “took the unprecedented step of refusing to allow the 

[Commission] to defend itself in court.” Caroline Hunter, How My FEC Colleague is Damaging 

the Agency and Misleading the Public (Oct. 22, 2019), https://politi.co/2zRfIJY. Regardless of 

the reason, the FEC has not authorized its general counsel to appear in this action. And while the 

Clerk of Court entered a default against the FEC on March 5, 2021, ECF No. 20, Right to Rise 

remains in the case as an intervening defendant and is committed to defending the suit on the

merits. 

III. ARGUMENT

A. The Court Should Deny Plaintiffs’ Request for a Default Judgment Because 

Plaintiffs Have Not Established a Claim or Right to Relief as Required Under 

Rule 55(d).

In the D.C. Circuit, “there is a strong policy favoring the adjudication of a case on its 

merits.” Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997). Accordingly, “[d]efault judgments 

are not favored” and “must normally be viewed as available only when the adversary process has 

been halted because of an essentially unresponsive party.” Jackson v. Beech, 636 F.2d 831, 835-

26 (D.C. Cir. 1980). In other words, because of the “drastic nature of a default judgment,” it “must

be a sanction of last resort.” Webb v. D.C., 146 F.3d 964, 971 (D.C. Cir. 1998). 

“The disfavor in which [default] judgments are held is especially strong in situations where 

the defendant is the government.” Payne v. Barnhart, 725 F. Supp. 2d 113, 116 (D.D.C. 2010). In 

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those situations, like here, Rule 55(d) expressly provides that a default judgment against the United 

States, its officers, or its agencies, may only be entered “if the claimant establishes a claim or right 

to relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). See also Carvajal v. Drug Enf't 

Agency, 246 F.R.D. 374, 375 (D.D.C. 2007) (A “default judgment may not be entered against the 

United States absent an independent factual showing of a meritorious claim.”). Plaintiffs have not 

met this burden, and their motion should be denied.

1. Plaintiffs Have Not Established Standing On Their FECA Claim 

As a threshold matter, Plaintiffs cannot meet their burden under Rule 55(d) without first

establishing Article III standing by a preponderance of the evidence. Indeed, “the procedural 

posture of a default does not relieve a federal court of its ‘affirmative obligation’ to determine 

whether it has subject matter jurisdiction over the action.” Herbin v. Seau, 317 F. Supp. 3d 568, 

571 (D.D.C. 2018) (denying motion for default judgment where plaintiff failed to provide 

sufficient evidence establishing the court’s jurisdiction). 

Here, Plaintiffs’ purported basis for standing is premised on the February 19th Order’s

holding regarding the sufficiency of Plaintiffs’ alleged informational injury. ECF No. 23 at 8-9. 

But as demonstrated in Right to Rise’s motion for reconsideration, that Order mistakenly relied 

on the more liberal Rule 12(b)(6) standard, thereby improperly alleviating Plaintiffs of their burden 

of establishing by a “preponderance of the evidence” that the Court has subject-matter jurisdiction 

over their claims. ECF No. 19 at 5-8. Instead, the Order merely accepted Plaintiffs’ factual 

allegations as true and, for purposes of determining whether Plaintiffs have standing to sue, 

“assum[ed] that plaintiffs are correct that Bush was testing the waters as of January 2015.” ECF 

No. 17 at 11; ECF No. 19 at 6-8. By incorrectly assuming that Plaintiffs were deprived of 

statutorily required disclosures for the period from January to June 2015, and despite the Plaintiffs’ 

burden to show their alleged injury by a preponderance of evidence, the February 19th Order

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 9 of 17
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erroneously determined that Plaintiffs suffered an informational injury even though the public 

record shows that Governor Bush reported the testing-the-waters spending for the exact period in 

question. See ECF No. 22 at 4. Under the “closer scrutiny” required for a Rule 12(b)(1) analysis, 

Plaintiffs have failed to establish the requisite standing. See Biton v. Palestinian Interim Self-Gov’t 

Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); Kareem v. Haspel, 986 F.3d 859, 869 (D.C. Cir. 

2021). 

Further, even if the February 19th Order had applied the correct legal standard under Rule 

12(b)(1), Plaintiffs still cannot establish an informational injury that would entitle them to a default 

judgment at this stage. Here, Plaintiffs allege they have “been denied complete, FECA-mandated 

reporting of Bush’s receipts and expenditures prior to June 2015.” ECF No. 23 at 10. Faced with 

the reality that Governor Bush satisfied his obligations under FECA by reporting the testing-thewaters activity, Plaintiffs shift their theory, speculating instead that those disclosures “cannot 

possibly account for all of Bush’s reportable activity over his pre-candidacy period” by relying on 

“public reports and Bush’s own statements revealing his extensive travel, fundraising efforts, 

meetings and speeches across the country.” Id. at 9, 11.

But newspaper articles that were published before Governor Bush’s first FECA report, see 

ECF No. 22 at 4, are far from the “uncontroverted evidence” required to obtain a default judgment 

against the federal government under Rule 55(d). Payne, 725 F. Supp. 2d at 116. Rather, Plaintiffs’

allegations are directly contradicted by the public record, which establishes that: (1) Governor 

Bush reported $386,020.15 of testing-the-waters activity on his campaign’s first FEC report in 

July 2015, after he formally announced his candidacy; and (2) the activities described in Plaintiffs’ 

“public reports” were on behalf of Right to Rise and were paid for and reported by Right to Rise.

ECF No. 22 at 4, 7-8. Accordingly, Plaintiffs’ alleged informational injury plainly relates to 

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 10 of 17
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already disclosed expenditures, which cannot support Article III standing as a matter of law. E.g., 

Wertheimer v. Fed. Election Comm’n, 268 F.3d 1070, 1075 (D.C. Cir. 2001); Free Speech for 

People v. FEC, No. 19-CV-1722 (APM), 2020 WL 999205, at *6 (D.D.C. Mar. 2, 2020). 

Simply put, Plaintiffs’ conclusory allegations are insufficient to establish a right to relief 

for purposes of a default judgment against the federal government. Where, as here, a movant “has 

not established, and cannot establish, that the court has subject matter jurisdiction over her claims,” 

the movant “has failed to carry her burden under Rule 55(d)” and “the motion for default judgment 

must be denied.” Strong-Fisher v. LaHood, 611 F. Supp. 2d 49, 52 n.2 (D.D.C. 2009). See also 

Auleta v. United States Dep’t of Just., 80 F. Supp. 3d 198, 199 (D.D.C. 2015) (granting motion to 

dismiss pursuant to Rule 12(b)(1) and consequently denying plaintiff’s motion for default 

judgment against the Department of Justice under Rule 55(d)).

Right to Rise’s motion for reconsideration seeks to redress the deficiencies in the February 

19th Order’s standing determination and dispose of Plaintiffs’ remaining FECA claim. Of course, 

if the Court reconsiders the standing analysis set forth in the February 19th Order, or if that holding 

is reversed on appeal, a default judgment against the FEC would be rendered invalid. Roeder v. 

Islamic Republic of Iran, 195 F. Supp. 2d 140, 159 (D.D.C. 2002), aff'd, 333 F.3d 228 (D.C. Cir. 

2003) (reasoning the “court has ‘no alternative’ but to vacate a default judgment entered without 

subject matter jurisdiction.”) (cleaned up); McNeil v. Harvey, No. CV 17-1720 (RC), 2018 WL 

4623571, at *7 n. 6 (D.D.C. Sept. 26, 2018) (“Plaintiffs’ motions for default judgment are denied 

because the Court lacks subject matter jurisdiction over Plaintiffs’ claims.”). Thus, at a minimum, 

the Court should refrain from the “drastic remedy” of a default judgment against the FEC because 

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 11 of 17
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Plaintiffs have not established Article III standing by a preponderance of the evidence, and 

therefore cannot establish a claim or right to relief as required under Rule 55(d).

1

2. Plaintiffs’ Remaining FECA Claim is Time-Barred

In addition to lacking an informational injury, Plaintiffs have failed to establish a claim as 

required under Rule 55(d) because the statute of limitations on Plaintiffs’ remaining FECA claim

has expired. While Plaintiffs allege the FEC has failed “to take any action on plaintiffs’ 

administrative complaints for over five and a half years” and request the Court enter a default 

judgment that such failure to act is contrary to law, ECF No. 23 at 17, 19, the express language of 

FECA precludes the relief sought by Plaintiffs. Under FECA, unless the FEC finds through an 

affirmative vote of at least four Commissioners reason to believe that a respondent violated FECA 

within five years of the date of the alleged violation, the FEC may not proceed with an investigation 

of, or enforcement against, that respondent. 52 U.S.C. § 30145.

Consequently, the time in which the FEC could take any authorized action in connection 

with Plaintiffs’ administrative complaints has passed. Right to Rise intends to seek summary 

judgment on this and other grounds and, for this additional reason, a default judgment against the 

FEC would be improper. This is simply not a case “where the adversary process has been halted 

because of an essentially unresponsive party,” Jackson, 636 F.2d at 836, and a default judgment 

would therefore be inappropriate. Here, Plaintiffs waited years to bring this action, and Right to 

Rise promptly presented meritorious defenses to Plaintiffs’ claims. The Court should permit the 

parties to resolve this matter on the merits, and Plaintiffs’ motion should be denied.

 1 Plaintiffs’ reliance on Citizens for Responsibility and Ethics in Washington v. FEC, No. 1:19-cv2753 (D.D.C. Apr. 9, 2020) is inapposite. See ECF No. 23 at 7. There, the plaintiff’s motion for 

default judgment against the FEC was unopposed. And, unlike here, at the time of the request for 

the default judgment, there was no challenge to the sufficiency of the evidence presented, no 

question as to the plaintiff’s standing to sue or the Court’s jurisdiction over the case, and no 

argument that the case should be decided on its merits. 

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 12 of 17
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B. A Default Judgment Would Be Improper In This Multi-Defendant Case.

Even if the Court were to deny Right to Rise’s motion for reconsideration and/or 

certification for interlocutory appeal, the Court should still wait on entering default judgment

against the FEC until Right to Rise has concluded its defense of this case. In a matter

involving multiple defendants, a default judgment should not be entered against one defendant for 

failure to appear or answer when another defendant remains in the case and inconsistent results 

will arise from the entry of a default judgment. See Whelan v. Abell, 953 F.2d 663, 674-75 (D.C. 

Cir. 1992); 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2690 (2010). 

Inconsistent results may occur between the default judgment and the ultimate resolution of the 

case where the defendants face joint liability or, like here, have closely related defenses. See 

Hudson v. Ashley, 411 A.2d 963, 969 (D.C. 1980) (vacating default judgment where defendants’ 

defenses “were closely related”).

To grant default judgment against the FEC now would present an irreconcilable conflict if 

Right to Rise is successful in defending this case on the merits. To date, the FEC has not taken 

public action on Plaintiffs’ complaints, as is its prerogative. The FEC’s decision to not take public 

action serves as the functional equivalent of the dismissal of an administrative complaint five years 

from the date of the alleged violation. 52 U.S.C. § 30145. It is this functional dismissal that the 

Plaintiffs are challenging in this suit, and the default judgment sought by Plaintiffs would result in 

an order holding that the FEC’s treatment of MUR 6927 is contrary to law and, presumably, would 

attempt to require the FEC to conform to such a judgment within 30 days. ECF No. 23 at 19.

Plaintiffs further assert that, if the FEC were to fail to conform with such a default judgment, 

Plaintiffs would avail themselves of FECA’s private right of action. Id. at 18. As a result, the 

default judgment may deprive Right to Rise of the FEC’s effective dismissal of MUR 6927 before 

Right to Rise has had an opportunity to defend the case on the merits.

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 13 of 17
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A similar case challenging the FEC’s dismissal of an administrative complaint is 

instructive as to the closely related nature of the FEC’s and Right to Rise’s positions in this matter.

In Campaign Legal Ctr. v. Fed. Election Comm’n, 334 F.R.D. 1 (D.D.C. 2019) (hereinafter “CLC 

2019”), as here, the FEC could not garner the four votes necessary to appear in the case to defend

its treatment of an administrative complaint, so the court permitted the intervening defendants to 

appear, “effectively tak[ing] the defaulting FEC’s place in th[e] suit.” Id. at 3. The court explained 

that for respondents in an administrative action, the FEC’s dismissal “provides them with a

significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability.” 

Id. at 5, citing Crossroads Grassroots Pol’y Strategies v. Fed. Election Comm’n, 788 F.3d 312, 

317 (D.C. Cir. 2015) (cleaned up).

So too here. More than five years ago, Plaintiffs filed with the FEC an administrative 

complaint against Right to Rise. Years later, the FEC has not taken public action on MUR 6927, 

presumably because it lacks four affirmative votes to find reason to believe that Right to Rise or 

the other respondents violated FECA. Plaintiffs now seek a default judgment declaring that the 

“FEC’s failure to act on plaintiffs’ administrative complaints is contrary to law under 52 U.S.C. § 

30109(a)(8)(A),” and ordering “the FEC to conform to the judgment within 30 days pursuant to 

52 U.S.C. § 30109(a)(8)(C).” ECF No. 23, at 19. Simply put, if Plaintiffs’ motion were granted, 

Right to Rise would be forced to defend itself as a respondent in a Commission action against it. 

As initially stated in Right to Rise’s motion to intervene, ECF No. 9, the FEC appears to 

lack the four affirmative votes necessary to take public action on the allegations in Plaintiffs’ 

administrative complaints presumably because less than four Commissioners have reason to 

believe that Right to Rise or the other respondents violated FECA. That being the case, the FEC 

simply cannot proceed with the investigation of, or enforcement against, Right to Rise or the other 

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 14 of 17
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respondents. This is the functional equivalent of the dismissal of the administrative complaints 

five years from the date of the alleged violation(s)—a deadline that has passed for the alleged 

violations. 52 U.S.C. § 30145.

That Plaintiffs are disgruntled by the lack of four Commissioner votes in support of their 

aggressive legal theories and policy stances does not make the FEC’s actions contrary to law. If 

Plaintiffs obtain a default judgment now, the above-described FEC process will be disrupted, 

thereby depriving Right to Rise of the statutorily afforded protection from investigation and 

enforcement absent the affirmative probable cause vote of at least four Commissioners. But the 

aforementioned process—both the “four vote” requirement and the five year statute of 

limitations—are among the legal defenses the FEC would make had four Commissioners voted in 

the affirmative to defend this case. Indeed, the FEC has complied and is complying with FECA, 

and the relief sought by Plaintiffs would do nothing but order the FEC to do something it simply 

cannot due—take action without four Commissioner votes, and do so more than five years after 

the alleged violations. Accordingly, Right to Rise has and will pursue some of the same defenses 

in this case as would the FEC, and therefore it should have the opportunity to defend the case on 

the merits.

This likely explains why Plaintiffs now seek to avoid a determination on the merits by 

virtue of a default judgment. Yet, as the court noted in CLC 2019, while the FEC has defaulted, 

“an entry of default does not equate with default judgment.” 334 F.R.D. at 7. Right to Rise must

be afforded an opportunity to defend the case on the merits because it has effectively taken the 

FEC’s place in this suit, and Plaintiffs cannot obtain judgment merely because the FEC has failed 

to appear. Plaintiffs’ motion should be denied. 

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IV. CONCLUSION

For these reasons, Right to Rise respectfully requests that the Court deny Plaintiffs’ Motion 

for Default Judgment. 

Dated: April 9, 2021 Respectfully Submitted, 

DICKINSON WRIGHT PLLC

/s/ Charles R. Spies

Charles R. Spies, Bar ID: 989020

Jessica G. Brouckaert*

1825 Eye Street, N.W., Suite 900

Washington, D.C. 20006

Telephone: (202) 466-5964

Facsimile: (844) 670-6009

cspies@dickinsonwright.com

jbrouckaert@dickinsonwright.com

Robert L. Avers

350 S. Main Street, Ste 300

Ann Arbor, MI 48104

(734) 623-1672

ravers@dickinsonwright.com

John J. Bursch*

Bursch Law PLLC

9339 Cherry Valley Ave. SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Attorneys for Defendant-Intervenor

*Pending Admission

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 16 of 17
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CERTIFICATE OF SERVICE

I hereby certify that on April 9, 2021, I caused a true and correct copy of the foregoing 

document to be served upon all counsel of record registered with the Court’s ECF system by 

electronic service via the Court’s ECF transmission facilities.

/s/ Robert L. Avers

Robert L. Avers (P75396)

Case 1:20-cv-00730-CRC Document 24 Filed 04/09/21 Page 17 of 17