UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

GIFFORDS, ) 

 ) 

 Plaintiff, ) Civ. No. 19-1192 (EGS) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS OR FOR 

 ) SUMMARY JUDGMENT 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS, OR 

IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT 

Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, the Federal Election 

Commission (“FEC” or “Commission”) hereby moves to dismiss plaintiff’s complaint 

challenging the Commission’s alleged failure to act upon a series of administrative complaints 

filed with the agency under the Federal Election Campaign Act, 52 U.S.C. § 30109(a)(8)(A). 

Even accepting the allegations of the complaint as true, the Commission would not have 

unreasonably delayed in handling the administrative complaints at issue here. Plaintiff thus fails 

to state a claim upon which relief can be granted. In the alternative, the Commission moves for 

summary judgment 

There are no material 

facts in genuine dispute and the Commission is entitled to judgment as a matter of law. A 

supporting memorandum of points and authorities, a statement of material facts not in genuine 

dispute, and a proposed order accompany this motion. 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 1 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

2 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Benjamin A. Streeter III 

Associate General Counsel Benjamin A. Streeter III 

kdeeley@fec.gov Attorney 

bstreeter@fec.gov 

July 1, 2019 FEDERAL ELECTION COMMISSION 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 2 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

GIFFORDS, ) 

 ) 

 Plaintiff, ) Civ. No. 19-1192 (EGS) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM IN SUPPORT OF 

 ) MOTION TO DISMISS OR FOR 

 ) SUMMARY JUDGMENT 

 Defendant. ) 

 ) 

MEMORANDUM IN SUPPORT OF DEFENDANT 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS, 

OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley Benjamin A. Streeter III 

Associate General Counsel Attorney 

kdeeley@fec.gov bstreeter@fec.gov 

 FEDERAL ELECTION COMMISSION 

 1050 First Street NE 

Washington, DC 20463 

July 1, 2019 (202) 694-1650 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 3 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

TABLE OF CONTENTS 

 

 Page 

I. BACKGROUND ...........................................................................................................2 

A. Parties .................................................................................................................2 

 1. The Federal Election Commission .........................................................2 

 2. Giffords ..................................................................................................2 

B. FECA’s Administrative Enforcement Process ...................................................3 

C. FECA Imposes Restrictions on Expenditures Coordinated with Candidates and 

Reporting Obligations ........................................................................................5 

 1. Source and Amount Limitations ............................................................5 

 2. Coordinated Expenditures ......................................................................6 

 3. Reporting Requirements ........................................................................7 

 D. Judicial Review Under FECA ............................................................................8 

 E. Plaintiff Giffords’s Administrative and Court Complaints ................................8 

 .........................10 

ARGUMENT ...........................................................................................................................12 

I. THIS CASE SHOULD BE DISMISSED UNDER RULE 12(b)(6) BECAUSE THE 

ALLEGATIONS IN THE COMPLAINT DO NOT STATE A CLAIM FOR 

UNLAWFUL DELAY ..............................................................................................12 

A. Standards for Evaluating Motions to Dismiss for Failure to State a Claim and 

Claims of Delay Under FECA .........................................................................13 

B. The Circumstances Plaintiff’s Complaint Describe Are Not Arbitrary and 

Capricious Delay ..............................................................................................14 

 

1. The Time That Has Passed in the Administrative Matters That Plaintiff Has 

Put Before the Agency Has Not Been Unreasonable .................................15 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 4 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

ii 

2. The Four Enforcement Matters That Plaintiff Describes Are Legally and 

Factually Complex .....................................................................................16 

3. The FEC Has Considerable Discretion to Allocate Its Enforcement Resources, 

and Public Data Shows That the Agency Has Faced a Heavy Enforcement 

Workload During the Short Time in Which These Matters Have Been Pending

....................................................................................................................18 

II. SUMMARY JUDGMENT SHOULD BE GRANTED

..............22 

A. Summary Judgment Standard ..........................................................................23 

....................................................24 

III. CONCLUSION ............................................................................................................26 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 5 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

iii 

TABLE OF AUTHORITIES

Cases Page 

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) ............................................19 

Adickes v. S,H. Kress & Co., 398 U.S. 144 (1970) ..................................................................23 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................23 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................13 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................13 

Bradley v. Vox Media, Inc., 320 F. Supp. 3d 178 (D.D.C. 2018) ............................................19 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................5 

Cannon v. District of Columbia, 717 F.3d 200 (D.C. Cir. 2013) ............................................19 

Carik v. Dep’t of Health & Human Svcs., 4 F. Supp. 3d 41 (D.D.C. 2013) ............................19 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................23 

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ..........................................13, 14, 23 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................4 

Defs. of Wildlife v. Dep’t of Agric., 311 F. Supp. 2d. 44, 53 (D.D.C. 2004) ...........................23 

Democratic Senatorial Campaign Comm. v. FEC, No. 95-0349, 

1996 WL 34301203 (D.D.C. Apr. 17, 1996) ........................................................................18 

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995) ...............................................................23 

FEC v. Rose, 

806 F.2d 1081 (D.C. Cir. 1986) ......................................................................8, 14, 15, 18, 23 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) ...............................................................18 

In re Federal Election Campaign Act Litigation, 474 F. Supp. 1044 (D.D.C. 1979) ..............17 

In re Nat’l Cong. Club v. FEC, Nos. 84-5701, 84-57, 

1984 WL 148396 (D.C. Cir. Oct. 24, 1984) ............................................13, 14, 15, 17, 22, 23 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ............................................................................15 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 6 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

iv 

Rose v. FEC, 608 F. Supp. 1 (D.D.C. 1984) ......................................................................14, 22 

Sierra Club v. Jackson, 648 F.3d. 848 (D.C. Cir. 2011) ..........................................................13 

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ........14 

Statutes and Regulations 

26 U.S.C. § 501(c)(4) .................................................................................................................8 

52 U.S.C. § 30101(17)(A)..........................................................................................................7 

52 U.S.C. § 30104(a) .................................................................................................................7 

52 U.S.C. § 30104(c) .................................................................................................................7 

52 U.S.C. § 30104(f) ..................................................................................................................7 

52 U.S.C. § 30106 - 107 ............................................................................................................2 

52 U.S.C. § 30106(b)(1) ............................................................................................................2 

52 U.S.C. §§ 30106(c) ...........................................................................................................4, 5 

 52 U.S.C. § 30107(a)(1) ............................................................................................................4 

52 U.S.C. § 30107(a)(2) .............................................................................................................4 

52 U.S.C. § 30107(a)(3) .............................................................................................................4 

52 U.S.C. § 30107(a)(4) .............................................................................................................4 

52 U.S.C. § 30107(a)(5) .............................................................................................................4 

52 U.S.C. § 30109(a)(1) .........................................................................................................2, 3 

52 U.S.C. § 30109(a)(2) ...................................................................................................2, 4, 17 

52 U.S.C. § 30109(a)(3) .........................................................................................................4, 5 

52 U.S.C. § 30109(a)(4)(A)(i) ...................................................................................................5 

52 U.S.C. § 30109(a)(6) .............................................................................................................2 

52 U.S.C. § 30109(a)(6)(A) .......................................................................................................5 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 7 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

v 

52 U.S.C. § 30109(a)(8) ...........................................................................................................22 

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

52 U.S.C. § 30109(a)(8)(C) ...........................................................................................8, 12, 23

52 U.S.C. §30109(a)(12) ............................................................................................................4 

52 U.S.C. § 30116(a) .................................................................................................................5 

52 U.S.C. § 30116(a)(1)(A) .......................................................................................................6 

52 U.S.C. § 30116(a)(1)(C) ....................................................................................................... c 

2 U.S.C. § 30116(a)(7)(B)(i)......................................................................................................6 

2 U.S.C. § 30118 ........................................................................................................................5 

52 U.S.C. §30119 .......................................................................................................................5 

52 U.S.C. § 30118(a) .................................................................................................................6 

52 U.S.C. § 30118(b)(2)(c) ........................................................................................................8 

52 U.S.C. § 30121 ......................................................................................................................5 

11 C.F.R. § 109.20 .....................................................................................................................6 

11 C.F.R. § 109.20(a).................................................................................................................6 

11 C.F.R. § 109.21 .....................................................................................................................6 

11 CFR § 109.21(c)(3) ...............................................................................................................7 

11 CFR § 109.21 (c)(5) ..............................................................................................................7 

11 CFR § 109.21(d)(4)(i) ...........................................................................................................7 

11 CFR § 109.21(d)(4)(ii) ..........................................................................................................7 

11 CFR § 109.21(d)(4)(iii) .........................................................................................................7 

11 C.F.R. § 111.4 .......................................................................................................................3 

11 C.F.R. § 111.5 .......................................................................................................................3 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 8 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

vi 

11 C.F.R. § 111.6(a)...................................................................................................................3 

11 C.F.R. § 111.6(b) ..................................................................................................................3 

11 C.F.R. § 111.7 .......................................................................................................................4 

11 C.F.R. § 111.9(a)...................................................................................................................4 

11 C.F.R. § 111.10 .....................................................................................................................4 

11 C.F.R. § 111.11 .....................................................................................................................4 

11 C.F.R. § 111.12 .....................................................................................................................4 

11 C.F.R. § 111.13 .....................................................................................................................4 

11 C.F.R. § 111.14 .....................................................................................................................4 

11 C.F.R. § 111.15(a).................................................................................................................4 

11 C.F.R. § 111.16(a).................................................................................................................5 

11 C.F.R. § 111.16(c).................................................................................................................5 

11 C.F.R. § 111.16(d) ................................................................................................................5 

11 C.F.R. § 111.21 .....................................................................................................................4 

Miscellaneous 

FEC, Agency Procedure Following the Submission of Probable Cause Beliefs by the 

 Office of General Counsel, 76 Fed. Reg. 63570 (Oct. 13, 2011)................................5 

FEC, Amendment of Agency Procedures for Probable Cause Hearings, 74 Fed. Reg. 55443 

(Oct. 28, 2009)........................................................................................5 

FEC, Guidebook for Complainants and Respondents on the FEC Enforcement Process 

(“Enforcement Guidebook”) (May 2012), 

https://www.fec.gov/em/respondent_guide.pdf........................................................................ 3, 23 

FEC, Status of Enforcement — Fiscal Year 2018, First Quarter (10/01/17 – 12/31/17) “FY 2018 

First Quarter Status of Enforcement”) (Feb. 5, 2018), https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_for_First_Quarter_of_FY_2018_-

_Public_Version.pdf;.................................................................................................................19

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 9 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

vii 

FEC, Status of Enforcement — Fiscal Year 2019, First Quarter (10/1/2018 – 12/31/18), 1 (Mar. 

8, 2019) https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement__FY2019_1stQtr.pdf............................................20 

FEC, Status of Enforcement — Fiscal Year 2018 (10/01/17 – 09/30/18) (“FY 2018 Status of 

Enforcement”) (Nov. 7, 2018), https://www.fec.gov/resources/cmscontent/documents/status_of_enforcement_FY2018.pdf...........................................................19 

FEC, Responses to Questions from the Committee on House Administration (“FEC Responses to 

House Committee”) (May 1, 2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf..........................................................4

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling 

Disclosure Threshold, 84 Fed. Reg. 2504 (Feb. 7, 2019).......................................... 6 

FEC, Agency Procedure Following the Submission of Probable Cause Briefs by the Office of 

Gen. Counsel, 76 Fed. Reg. 63570 (Oct. 13, 2011)...............................................5 

FEC, Supplemental Statistics for Fiscal Years 2009 – 2010, (Oct. 1, 2010), 

https://transition.fec.gov/em/enfpro/enforcestatsfy09-10.pdf.................................................20 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process., 72 Fed. Reg. 12545 (March 16, 2007) .............................................26 

Fed. R. Civ. P. 12(b)(6)...........................................................................................................13 

FEC, Fiscal Year 2020 Cong. Budget Justification, (Mar. 18, 2019), 

https://www.fec.gov/resources/cmscontent/documents/FY20_congressional_budget_justification.pdf (explaining the budget 

climate)..................................................................................................................................20 

Fiscal Year 2020 Cong. Budget Justification, (Mar. 18, 2019), 

https://www.fec.gov/resources/cmscontent/documents/FY20_congressional_budget_justification.pdf ....................................16 

FEC, Fiscal Year 2019 Cong. Budget Justification (Feb. 12, 2018), 

https://www.fec.gov/resources/cmscontent/documents/FEC_FY_2019_Congressional_Budget_Justification.pdf (requesting a 

budget built on an assumption of a reduction from 345 to 335 in full-time equivalent staff 

positions)...............................................................................................20 

OGC Enforcement Statistics for Fiscal Years 2003-2008 (“FY 2003-08 Enforcement Statistics”), 

(updated Jan. 13, 2009), https://transition.fec.gov/em/enfpro/enforcestatsfy03-08.pdf.....20 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 10 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

viii 

Financial Services and General Government Appropriations Act, 2019, Pub. L. No. 116-6, Div. 

D, title V, 133 Stat. 13, 166 (Feb. 15, 2019) (awarding the requested amount)..............20 

Responses to Questions from the House Committee on Administration (May 1, 2019), 

https://www.fec.gov/resources/cms- 

 content/documents/FEC_Response_to_House_Admin.pdf ...................................................... 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 11 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

The claim of plaintiff Giffords that defendant Federal Election Commission 

(“Commission” or “FEC”) has unlawfully failed to act on four administrative complaints 

pursuant to 52 U.S.C. § 30109(a)(8)(A) of the Federal Election Campaign Act (“FECA”) must 

be dismissed. Plaintiff has failed to state a claim upon which relief can be granted because no 

claim of delay could succeed based on the facts alleged in the court complaint, which itself 

shows the recency of the administrative complaints, as well as the factual and legal complexity 

of the matters at issue. In the alternative, summary judgment is appropriate 

 

According to the court complaint, Giffords filed four administrative complaints with the 

Commission in the second half of 2018. Each administrative complaint alleged, according to 

plaintiff, that two entities associated with the National Rifle Association of America (“NRA”), 

the NRA Political Victory Fund (“NRA-PVF”) and the NRA Institute for Legislative Action 

(“NRA-ILA”), made unlawful contributions to a presidential campaign and a large number of 

Senate campaigns. (Compl. ¶¶ 10-54.) In particular, plaintiff claims that these NRA entities 

used common vendors in a complex, concealed manner to make millions of dollars of ostensibly 

independent expenditures that were in fact coordinated with the campaigns that benefited, during 

the 2014, 2016, and 2018 election cycles. (Id.) 

In this court case, Giffords asserts that the Commission has unlawfully failed to act on its 

administrative complaints in violation of 52 U.S.C. § 30109(a)(8)(A). (Compl. ¶ 66.) But this 

case must be dismissed under the applicable standards for evaluating such claims, which accord 

the Commission deference and impose no specific deadlines for the handling of such matters. 

Plaintiff fails to state a claim for unlawful delay in light of the time required to conduct the 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 12 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

2 

FEC’s statutorily required administrative process, which provides for responses from those 

against whom allegations are made; the agency’s heavy current enforcement workload; and the 

nature of the allegations, which plaintiff itself describes as a “complicated scheme.” (Compl. at 

2.) 

Alternatively, the FEC is entitled to summary judgment 

I. BACKGROUND 

B. Parties 

1. The Federal Election Commission

The FEC is a six-member independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106-07. Congress authorized the Commission, inter alia, to investigate possible 

violations of FECA, id. § 30109(a)(1)-(2), and granted the Commission exclusive jurisdiction to 

initiate civil enforcement actions for violations of FECA in the United States district courts, id., 

§§ 30106(b)(1), 30109(a)(6). 

2. Giffords 

Giffords identifies itself as a section 501(c)(4) organization headquartered in 

Washington, D.C. that researches and proposes policies, as well as mobilizes voters and 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 13 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

3 

lawmakers, in support of safer gun laws. (Compl. ¶ 8.) It is founded and led by former 

Congresswoman Gabrielle Giffords. (Id.) 

B. FECA’s Administrative Enforcement Process 

 FECA permits any person to file an administrative complaint with the Commission 

alleging a violation. 52 U.S.C. § 30109(a)(1); 11 C.F.R. § 111.4. The FEC’s Office of General 

Counsel reviews filed complaints for compliance with technical requirements and sends 

notification letters within five days. 52 U.S.C. § 30109(a)(1); 11 C.F.R. § 111.5. 

Respondents whose conduct is at issue are afforded fifteen days to demonstrate in writing 

that no action should be taken on the administrative complaint. 52 U.S.C. § 30109(a)(1); 11 

C.F.R. § 111.6(a). The Commission may take no action on a complaint other than dismissal until 

the fifteen-day period has elapsed. 52 U.S.C. § 30109(a)(1); 11 C.F.R. § 111.6(b). Extensions 

beyond fifteen days may be obtained and the Commission similarly takes no action on the 

complaint until after the new deadline if an extension is granted.1

 

 After the response period has elapsed, the Commission’s Office of General Counsel 

evaluates the complaint and any responses under the agency’s Enforcement Priority System. 

Enforcement Guidebook at 11. Depending on their priority and other criteria, matters may then 

be referred to the agency’s Alternative Dispute Resolution Office, Administrative Fine Program, 

or recommended for dismissal. Id. Matters that are of relatively higher priority are assigned to 

the agency’s Enforcement Division and processed under FECA’s general enforcement 

procedures. Id.

 

1

 FEC, Guidebook for Complainants and Respondents on the FEC Enforcement Process 

(“Enforcement Guidebook”), 10 - 11 (May 2012), 

https://www.fec.gov/em/respondent_guide.pdf. 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 14 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

4 

Matters that have been assigned to the Enforcement Division are activated and assigned 

to staff attorneys for preparation of a recommendation to Commissioners as staff are available 

and in consideration of case priority.2 The Office of General Counsel sends a report to the 

Commission recommending whether it should find that there is “reason to believe” that FECA 

has been violated and whether it should dismiss the matter. 11 C.F.R. § 111.7. If at least four of 

the FEC’s Commissioners vote to find such reason to believe, the agency must notify 

respondents by letter of the alleged violations and factual basis. 52 U.S.C. § 30109(a)(2); 11 

C.F.R. § 111.9(a). If the Commission finds no reason to believe or otherwise terminates its 

proceedings, an explanation of the Commission’s reasons is required to enable potential judicial 

review. See Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). 

If the Commission finds reason to believe a violation has occurred, it may investigate the 

alleged violation. 52 U.S.C. §§ 30106(c), 30109(a)(2); 11 C.F.R. § 111.10. The Commission is 

authorized to employ compulsory methods during such an investigation, including written 

questions, document subpoenas, and depositions. Id. § 30107(a)(1)-(5); 11 C.F.R. §§ 111.10-

111.14. Persons subpoenaed may file motions to quash with the Commission. 11 C.F.R. § 

111.15(a). Absent waiver by the respondent, any complaint, notification, finding, or 

investigation is confidential until the administrative process is complete. Id. § 30109(a)(12); 11 

C.F.R. § 111.21. 

If an investigation has been conducted, the FEC must then determine whether there is 

“probable cause” to believe that FECA has been violated. The Office of General Counsel 

prepares a brief with a recommendation to the Commission. 52 U.S.C. § 30109(a)(3); 11 C.F.R. 

 

2

 FEC, Responses to Questions from the Committee on House Administration (“FEC 

Responses to House Committee”) at 16 (May 1, 2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf. 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 15 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

5 

§ 111.16(a). Respondents may file a brief within 15 days. 52 U.S.C. § 30109(a)(3); 11 C.F.R. § 

111.16(c). The Office of General Counsel then sends the Commission a written notice advising 

whether it intends to proceed or withdraw its recommendation. 11 C.F.R. § 111.16(d). Under 

certain circumstances, respondents may request within five days and be granted permission by 

the Commission to file a supplemental reply brief up to 10 days later.3

 Respondents have the 

option to request a transcribed oral hearing before the Commission regarding whether there is 

probable cause to believe violations occurred.4

Like a reason-to-believe finding, a determination to find probable cause to believe that a 

violation has occurred requires an affirmative vote of four Commissioners. If at least four 

Commissioners so vote, the agency is generally required by statute to spend a minimum of 30 

days trying to remedy the apparent violation informally and try to reach a conciliation agreement 

with the respondent. 52 U.S.C. §§ 30106(c), 30109(a)(4)(A)(i). If the Commission is unable to 

reach a conciliation agreement, the Act authorizes the agency to institute a de novo civil 

enforcement action in federal district court. Id. § 30109(a)(6)(A). 

C. FECA Imposes Restrictions on Expenditures Coordinated with Candidates 

and Reporting Obligations 

1. Source and Amount Limitations 

FECA contains requirements to regulate the financing of federal election campaigns. The 

dollar amounts and sources of contributions to the campaign committees of federal candidates 

are limited. 52 U.S.C. §§ 30116(a), 30118-19, 30121. Most “political committees,” groups 

which inter alia have the major purpose of electing federal candidates, Buckley v. Valeo, 424 

 

3

 See FEC, Agency Procedure Following the Submission of Probable Cause Briefs by the 

Office of Gen. Counsel, 76 Fed. Reg. 63570 (Oct. 13, 2011). 

4

 See FEC, Amendment of Agency Procedures for Probable Cause Hearings, 74 Fed. Reg. 

55443 (Oct. 28, 2009). 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 16 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

6 

U.S. 1, 79 (1976) (per curiam), may contribute $5,000 per year to federal candidates. Most other 

persons are currently limited to contributions to a candidate totaling $2,800 per election. 52 

U.S.C. § 30116(a)(1)(A), (C); see FEC, Price Index Adjustments for Contribution and 

Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 84 Fed. Reg. 2504 (Feb. 

7, 2019) (establishing the inflation-adjusted contribution limits for the current two-year election 

cycle). Funds from corporate treasuries may not be contributed to federal candidates, although 

corporations may establish separate segregated funds that receive voluntary contributions to do 

so. See 52 U.S.C. § 30118(a). One of the NRA entities, NRA-PVF, is registered with the 

Commission as such a separate segregated fund, a type of political committee, connected to the 

NRA. 

2. Coordinated Expenditures 

Expenditures made by a person in coordination with a candidate are generally considered 

in-kind contributions to that candidate’s campaign, and they are therefore limited in the same 

way as direct monetary contributions are, because the campaign receives the same benefit from 

having money spent at its direction as it would by having money contributed to it directly. 52 

U.S.C. § 30116(a)(7)(B)(i). 

The specific standards for determining whether an expenditure has been coordinated with 

a candidate or political committee are set forth in FEC regulations. 11 C.F.R. §§ 109.20, 109.21. 

Section 109.20 defines coordinated acts as those “(a) made in cooperation, consultation or 

concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, 

or a political party committee.” 11 C.F.R. §§ 109.20(a). Section 109.21 defines a 

communication as being coordinated with a candidate or committee when it is 1) “paid for, in 

whole or in part, by a person other than that candidate” or committee; 2) “[s]atisfies at least one 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 17 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

7 

of the content standards” specified in the regulation; and 3) satisfies at least one conduct standard 

also found in the regulation. 11 C.F.R. §§ 109.21(a). The content standard can be satisfied if the 

communication meets one of five tests, including whether the communication expressly 

advocates the election or defeat of a clearly identified federal candidate, or if the public 

communication is aired within 90 days of a clearly identified candidate’s federal election. 11 

C.F.R. § 109.21(c)(3), (c)(5). The conduct standard for coordination can be met by the activities 

of a common vendor if the communication maker hires the vendor to create, produce or 

disseminate a communication, 11 C.F.R. § 109.21(d)(4)(i), and the vendor has supplied specified 

services to a candidate within the previous 120 days, such as developing a media strategy, 

developing the content of communications, or producing communications, 11 C.F.R. § 

109.21(d)(4)(ii). In addition, the vendor must use or convey to the communication maker 

information about the candidate or candidate’s opponent that is material to the new 

communication, unless that information derives from public sources. 11 C.F.R. § 

109.21(d)(4)(iii). 

3. Reporting Requirements 

FECA also requires political committees to report detailed information to the 

Commission on a regular basis regardless of their specific activities. See 52 U.S.C. § 30104(a). 

By contrast, groups that are not deemed to be political committees are required to file eventdriven reports with the FEC if they engage in certain election-related spending such as 

independent expenditures, 52 U.S.C. § 30104(c), or electioneering communications, 52 U.S.C. § 

30104(f). An independent expenditure is a communication made without coordination with a 

candidate, campaign, or political party that “expressly advocat[es] the election or defeat of a 

clearly identified candidate.” 52 U.S.C. § 30101(17)(A). 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 18 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

8 

D. Judicial Review Under FECA

Administrative complainants may challenge in federal court the FEC’s handling of their 

complaints in two limited situations. 52 U.S.C. § 30109(a)(8)(A). First, after 120 days have 

elapsed since the complaint has been filed, a party who has filed an administrative complaint 

may bring a claim against the Commission alleging “a failure of the Commission to act on [the 

administrative] complaint.” Id.; FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986). The 

second situation in which an administrative complainant may file suit is where the Commission 

decides to dismiss the administrative complaint. In that event, FECA allows the complainant to 

challenge the dismissal in court. 52 U.S.C. § 30109(a)(8)(A). In either type of suit, the plaintiff 

must establish that the FEC has acted “contrary to law.” 52 U.S.C. ¶ 30109(a)(8)(c). 

E. Plaintiff Giffords’s Administrative and Court Complaints 

Plaintiff’s court complaint alleges that on July 16, 2018, the Campaign Legal Center 

(“CLC”) filed the first of four administrative complaints at issue with the FEC. (Compl. ¶ 2.) 

Plaintiff alleges that this was designated by the Commission as Matter Under Review (“MUR”) 

7427. (Compl. ¶ 56.) 

NRA-PVF is alleged to be registered with the Commission as a separate segregated fund 

connected to the NRA that makes contributions to federal candidates and political committees 

and makes independent expenditures through a separate account. Compl. ¶ 28; 52 U.S.C. ¶ 

30118(b)(2). 

The NRA-ILA is alleged to be an incorporated tax-exempt organization under 

Section 501(c)(4) of the Internal Revenue Code. Compl. ¶ 28; 26 U.S.C. ¶ 501(c)(4). 

In the first administrative complaint, CLC alleged that these two NRA entities made 

illegal, unreported and excessive contributions to certain political candidates in the form of 

coordinated communications using common vendors. (Compl. ¶ 55.) A month later, on August 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 19 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

9 

16, 2018, this administrative complaint was amended to add Giffords as a complainant. (Compl. 

¶ 55.) Plaintiff states that the second administrative complaint, designated as MUR 7497, was 

filed jointly by Giffords and CLC on September 14, 2018, alleging that the same NRA entities 

had made coordinated contributions to another Senate candidate. (Compl. ¶¶ 3, 57-58.) Giffords 

and CLC alleged in a third administrative complaint filed on October 22, 2018 (and designated 

MUR 7524) that the same NRA entities had made additional coordinated contributions to yet 

another Senate candidate. (Compl. ¶¶ 60-61.) Finally, according to the court complaint, 

Giffords and CLC alleged in a fourth administrative complaint filed on December 7, 2018 

(designated MUR 7553) that the same NRA entities had pursued a similar scheme to make 

improper contributions to the Donald J. Trump for President, Inc. committee. (Compl. ¶¶ 5, 62-

63). 

According to the court complaint, the basic facts that Giffords alleges in support of these 

legal claims are that in the 2014, 2016, and 2018 election cycles, the NRA entities made millions 

of dollars in excessive, prohibited corporate, and unlawfully unreported contributions to federal 

candidates by coordinating political ad spending through the use of common vendors operating 

through a network of corporate shells. (Compl. ¶ 10.) In particular, plaintiff alleges that 

OnMessage was an advertising consultant and vendor used previously by the NRA entities in the 

2010 and 2012 election cycles. (Compl. ¶ 22.) Beginning with the 2014 election cycle, the NRA 

entities allegedly directed their communication expenditures through a new but functionally 

indistinguishable vendor, Starboard, while candidates the NRA supported utilized OnMessage. 

(Compl. ¶ 23.) According to the court complaint, the NRA entities made multiple expenditures 

through Starboard, while U.S. Senate candidates they supported placed ads with OnMessage in 

the 2014 election cycle (Compl. ¶¶ 34-37) and the 2016 election cycle (Compl. ¶¶ 38-45), 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 20 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

10 

including expenditures made on behalf of Trump for President, and also coordinated ad spending 

for Senate candidates in the 2018 election cycle (Compl. ¶¶ 46-51). 

Giffords also alleges that National Media, another advertising consultant and vendor, did 

business under the name Red Eagle and also operated an affiliate by the name of America Media 

Advocacy Group. (Compl. ¶ 26.) Red Eagle and AMAG constituted the second common 

vendor scheme, plaintiff alleges, with the NRA entities purchasing advertisements through Red 

Eagle while NRA-supported Senate candidates and the Trump presidential campaign placed 

advertisements through AMAG. (Compl. ¶¶ 42-44, 48.) 

On April 24, 2019, Giffords filed this suit seeking declaratory and injunctive relief 

against the FEC for allegedly failing to act on the four administrative matters Giffords had 

initiated in the latter half of 2018. (Compl. ¶¶ 55-63.) Giffords asks the Court to declare that the 

FEC’s purported failure to act on its administrative complaints within 120 days was contrary to 

law under 52 U.S.C. § 30109(a)(8)(A). (Compl. ¶ 66.) Plaintiff also asks the Court to order the 

FEC to conform with the declaration it seeks within thirty days after the entry of the Court’s 

declaration. (Compl., Requested Relief ¶ 2.) 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 21 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

11 

 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 22 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

12 

 

 

 

 

 

ARGUMENT 

I. THIS CASE SHOULD BE DISMISSED UNDER RULE 12(b)(6) BECAUSE THE 

ALLEGATIONS IN THE COMPLAINT DO NOT STATE A CLAIM FOR 

UNLAWFUL DELAY 

In this case, Giffords claims that the NRA entities have “engaged in a complicated 

scheme” to commit “campaign finance violations of dramatic scale,” but that the Commission 

has engaged in “unlawful and unreasonable delay” in addressing four administrative matters 

about that activity. (Compl. at 2.) Accepting all the allegations in the complaint as true, 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 23 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

13 

however, Giffords does not state a claim that the Commission’s actions in addressing plaintiff’s 

claims were unreasonable or otherwise “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Nothing 

in the law requires the FEC to complete work on administrative complaints within the statutory 

120-day period for filing court complaints. And as explained below, the situation described in 

the court complaint does not constitute a violation of the contrary-to-law standard of section 

30109(a)(8) for a number of reasons, including the minimal passage of time since plaintiff made 

the allegations and the complex scenarios alleged in the administrative complaints, as well as 

matters of which the court may take judicial notice, particularly the FEC’s heavy current 

workload and its statutorily required administrative process. 

A. Standards for Evaluating Motions to Dismiss for Failure to State a Claim 

and Claims of Delay Under FECA 

 Dismissal of a claim is appropriate where, accepting the factual allegations in the court 

complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the allegations 

fail as a matter of law to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Sierra Club v. Jackson, 648 F.3d. 848, 854 (D.C. 

Cir. 2011). A claim must be dismissed “when the allegations in a complaint, however true, could 

not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). 

In the context of a claim of “failure to act” under section 30109(a)(8), FECA’s contraryto-law standard means “action which is arbitrary and capricious.” Common Cause v. FEC, 489 

F. Supp. 738, 744 (D.D.C. 1980). The Court of Appeals has explained that “in using the 

language ‘contrary to law,’ Congress appears to have intended that the unreasonableness of the 

Commission’s delay in completing its task be tested under standards generally applicable to 

review of agency inaction.” In re Nat’l Cong. Club, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 

1984) (per curiam). To make this determination, the Court of Appeals has instructed district 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 24 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

14 

courts to consider the four factors used in Common Cause — “‘[1] the credibility of the 

allegation, [2] the nature of the threat posed, [3] the resources available to the agency, and [4] the 

information available to it, as well as the novelty of the issues involved.’” Id. (quoting Common 

Cause, 489 F. Supp. at 744). In addition, administrative delay cases are evaluated by reference 

to the six factors announced in Telecommunications Research & Action Center v. FCC: 

(1) the time agencies take to make decisions must be governed by a 

rule of reason; (2) where Congress has provided a timetable or 

other indication of the speed with which it expects the agency to 

proceed in the enabling statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that might be reasonable 

in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the 

effect of expediting delayed action on agency activities of a higher 

or competing priority; (5) the court should also take into account 

the nature and extent of the interests prejudiced by delay; and 

(6) the court need not find any impropriety lurking behind agency 

lassitude in order to hold that agency action is unreasonably 

delayed. 

750 F.2d 70, 80 (D.C. Cir. 1984) (citations and internal quotation marks omitted) (“TRAC”). 

B. The Circumstances Plaintiff’s Complaint Describe Are Not Arbitrary and 

Capricious Delay

 

Under the standards above, Giffords’s allegations regarding the Commission’s handling 

of the underlying MURs at issue here do not constitute unreasonable delay. Plaintiff pleads that 

it initiated four administrative matters in the latter half of 2018 alleging what it terms a 

“complicated scheme” to violate the common vendor rules, including a large number of actors 

who would have rights as respondents under FECA’s mandatory administrative enforcement 

procedure. At the same time, publicly available data shows the Commission’s heavy workload 

during the short period these complaints have allegedly been pending, a period that included the 

35-day government shutdown of 2018-2019. Yet plaintiffs filed this delay suit in April 2019. 

Applying the Common Cause and TRAC standards, there is no basis to find that the FEC’s 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 25 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

15 

actions in handling the four administrative matters described in the complaint here were other 

than “substantially justified.” Rose, 806 F.2d at 1091 n.17. 

4. The Time That Has Passed in the Administrative Matters That Plaintiff 

Has Put Before the Agency Has Not Been Unreasonable 

At the time Giffords filed this suit, the final administrative complaints had been pending 

for approximately five to eight months, an obviously reasonable amount of time not to have 

concluded all of the FECA-required administrative proceedings. The specific amounts of 

elapsed time were 251 days (MUR 7427, after an amended complaint), 219 days (MUR 7497), 

184 days (MUR 7524), and 138 days (MUR 7553). As the caselaw demonstrates, the 

Commission has not acted contrary to law. 

There is no specific time frame governing how quickly the Commission must act on 

administrative enforcement complaints. The Court of Appeals has made clear that, despite 

section 30109(a)(8)(A)’s reference to a failure to act upon an administrative complaint within 

120 days, FECA does not impose any particular time period within which FEC administrative 

enforcement matters must be resolved. Rose, 806 F.2d at 1091-92. The Rose court emphasized 

that the 120-day period is simply a basic jurisdictional threshold before which a delay suit cannot 

be filed, and the court unequivocally rejected the argument that FECA requires the FEC to act on 

an administrative complaint within 120 days, or even within a two-year election cycle. Id. at 

1092. The court recognized that the Commission “[l]ike the federal courts...appears to have 

more than one case on its docket” and that “[i]t is not for the judiciary to ride roughshod over 

agency procedures or sit as a board of superintend[e]nce” because “[we] are not here to run the 

agencies.” Id. at 1091 & n.17. Likewise, in National Congressional Club, 1984 WL 148396, at 

*1, the D.C. Circuit summarily reversed a district court’s contrary-to-law finding where it was 

based on the incorrect presumption that administrative complaints must be resolved “within the 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 26 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

16 

two-year period between elections”; accord Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) 

(per curiam) (explaining that section 30109(a)(8) is “designed to ensure fairness not only to 

complainants but also to respondents” and that it reflected Congressional understanding that 

some complaints would not be investigated or reviewed by the judiciary until after the election at 

issue). 

Thus, controlling precedent makes clear that there is no set timetable for the 

Commission’s handling of administrative complaints (the second factor to be considered under 

the TRAC case) and that a reasonable amount of time in the context of FEC enforcement activity 

(the first TRAC factor) is reviewed with regard to the particular circumstances of each matter 

under a deferential standard. 

The five to eight months during which the administrative complaints are alleged to have 

been pending are plainly not unreasonable periods. The agency’s own goal, which has been 

explained to Congress repeatedly over a number of years, is to resolve half of the enforcement 

matters it resolves each year within 15 months of the date of receipt.5

 That goal reflects the 

inclusion of lower priority, less complex allegations than those at issue here and assumes that 

many more complex matters will not be resolved within 15 months. Even setting aside 

complaint amendments and counting from the original complaint filing date in each matter, the 

agency’s 15-month benchmark is more than three months away. 

2. The Four Enforcement Matters That Plaintiff Describes Are Legally and 

Factually Complex 

 

5

 See, e.g., FEC, Fiscal Year 2020 Cong. Budget Justification, 34 (Mar. 18, 2019), 

https://www.fec.gov/resources/cmscontent/documents/FY20_congressional_budget_justification.pdf (explaining the budget 

climate). 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 27 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

17 

It is undisputed that plaintiff makes allegations that describe numerous complicated 

campaign finance law matters. Giffords itself repeatedly emphasizes the complexity and 

opaqueness of the common vendor scheme through which it alleges the administrative 

respondents violated FECA. Plaintiff points to a “complex network of shell corporations” 

(Compl. at 1) allegedly engaging in an “elaborate scheme” (Compl. at 17) and a “complicated 

scheme to coordinate” leading to “campaign finance violations of dramatic scale” (Compl. at 2). 

At the same time, the legal rules governing coordinated expenditures under FECA, which were 

designed to be targeted and sensitive to First Amendment concerns, are complex. See supra p. 

__. And the D.C. Circuit has confirmed that the “novelty of the issues involved” is a key factor 

in evaluating allegations of agency delay. See In re Nat. Cong. Club, 1984 WL 148396, at *1 

(quoting Common Cause, 489 F. Supp. at 744). 

Moreover, even assuming that the detailed allegations made by Giffords had credibility, 

another factor the D.C. Circuit has cited, “the Commission may not rely solely on the facts 

presented by the sworn complaint when deciding whether to investigate.” In re Fed. Election 

Campaign Act Litig., 474 F. Supp. 1044, 1046 (D.D.C. 1979). Careful agency consideration is 

required, and information received from administrative respondents may cast an apparently 

persuasive complaint in a different light. Indeed, it is important to stress the extensive 

procedural requirements in FECA that safeguard the interests of respondents, including their 

right to respond to each processed administrative complaint, such as those at issue here — the 

last of which was not even filed until December 2018. See 52 U.S.C. § 30109(a)(2). As 

explained above, the Commission’s administrative enforcement process is largely mandated by 

statute and takes time. 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 28 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

18 

In addition, although Giffords makes claims encompassing many actors over three federal 

election cycles, these claims all raise economic (and political) issues common to many FEC 

matters, not human safety or welfare issues. Because no immediate issues of safety or wellness 

are at stake in these alleged violations of campaign finance restrictions, the third TRAC factor 

clearly weighs against any finding that the Commission’s handling of the matters could be 

deemed unlawful. 

3. The FEC Has Considerable Discretion to Allocate Its Enforcement 

Resources, and Public Data Shows That the Agency Has Faced a Heavy 

Enforcement Workload During the Short Time in Which These Matters 

Have Been Pending 

The Commission’s significant discretion to allocate its resources in discharging its 

enforcement responsibilities is another factor demonstrating the insufficiency of Giffords’s 

complaint. And the agency’s current budgetary and workload context further demonstrate that 

allegations of the agency having complex matters pending for five to eight months do not state a 

claim for unlawful delay. 

As a general matter, the “FEC is clearly entitled to deference in the allocation of its 

resources to meet its statutory obligations.” Democratic Senatorial Campaign Comm. v. FEC, 

No. 95-0349, 1996 WL 34301203, at *5 (D.D.C. Apr. 17, 1996). “[R]espect for the autonomy 

and comparative institutional advantage of the executive branch has traditionally made courts 

slow to assume command over an agency’s choice of priorities.” In re Barr Labs., Inc., 930 F.2d 

72, 74 (D.C. Cir. 1991). Courts have repeatedly refused to reorder agency priorities by ordering 

a particular case to be expedited ahead of others. The effect of such relief is to put a plaintiff “at 

the head of the queue[, which] simply moves all others back one space and produces no net 

gain.” Id. at 75. Moreover, courts lack any “basis for reordering agency priorities. The agency 

is in a unique — and authoritative — position to view its projects as a whole, estimate the 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 29 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

19 

prospects for each, and allocate its resources in the optimal way. Such budget flexibility as 

Congress has allowed the agency is not for [the courts] to hijack.” Id. at 76. 

Judicial review of the agency’s handling of administrative complaints is thus deferential. 

Rose, 806 F.2d at 1092. Indeed, the discretion to mobilize the internal resources, especially staff 

time, to determine whether and how to investigate the “complicated scheme” Giffords alleges is 

at the heart of the resource considerations that underlie the third Common Cause factor (available 

agency resources) and the fourth TRAC factor (potential effects on other agency activities). Not 

only must the Commission identify resources available to work on new matters, it must also 

consider the impact of staffing decisions upon other matters under consideration. Even assuming 

the allegations raised here are serious ones, the FEC regularly evaluates many important and 

complex allegations in its enforcement role. 

Publicly available data shows that the Commission has experienced a heavy workload 

and staffing pressures during the short period that plaintiff’s matters have been pending, 

particularly in light of the lengthy federal government shutdown of 2018-2019.6

 In fiscal year 

2018, the Commission received 258 cases, a historically very high number.7 By comparison, the 

totals in fiscal years 2003-17 averaged 156 cases received and never exceeded 235.8 

 

6

 Because this data is all available on the Commission’s website at www.fec.gov and not 

subject to reasonable dispute, the court may take judicial notice of it in ruling on this motion to 

dismiss, even though the data is not found in the pleadings of this case. See Abhe & Svoboda, 

Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007); Bradley v. Vox Media, Inc., 320 F. Supp. 3d 

178, 181 (D.D.C. 2018). Indeed, courts in this jurisdiction have frequently taken judicial notice 

of information posted on official public websites of government agencies. See, e.g., Cannon v. 

District of Columbia, 717 F.3d 200, n.2 (D.C. Cir. 2013) (District of Columbia’s Retirement 

Board); Carik v. Dep’t of Health & Human Svcs., 4 F. Supp. 3d 41, 48 n.4 (D.D.C. 2013) (FDA). 

7

 See FEC, Status of Enforcement — Fiscal Year 2018 (10/01/17 – 09/30/18) (“FY 2018 

Status of Enforcement”), 3 (Nov. 7, 2018), https://www.fec.gov/resources/cmscontent/documents/status_of_enforcement_FY2018.pdf. 

8

 See FEC, Status of Enforcement — Fiscal Year 2018, First Quarter (10/01/17 – 

12/31/17) “FY 2018 First Quarter Status of Enforcement”), 3 (Feb. 5, 2018), 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 30 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

20 

The agency has had to manage this burgeoning docket during the recent period with 

comparatively fewer resources. Recognizing the current “challenging Federal budget 

conditions” in its last several budget requests, the Commission sought and was appropriated a 

budget for the current fiscal year, 2019, that assumed ten fewer full-time equivalent staff 

positions than in the preceding fiscal year.9

 

The agency has done more with less over time. The average number of days to close a 

matter has decreased from a peak of 790 days or 26.3 months in fiscal year 2004 to 436 days or 

approximately 14.5 months in fiscal year 2018.10

Despite these efforts, the increasing workload has strained agency resources and 

contributed to the agency’s efficiency gains potentially getting outpaced. The total pending load 

of cases with the agency’s Enforcement Division increased from 241 matters at the end of 

December 2017 to 320 matters at the end of December 2018.11 Available data for the time 

 

https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement_for_First_Quarter_of_FY_2018_-

_Public_Version.pdf; FEC, Supplemental Statistics for Fiscal Years 2009 – 2010, 2 (Oct. 1, 

2010), https://transition.fec.gov/em/enfpro/enforcestatsfy09-10.pdf; FEC, OGC Enforcement 

Statistics for Fiscal Years 2003-2008 (“FY 2003-08 Enforcement Statistics”), 2 (updated Jan. 13, 

2009), https://transition.fec.gov/em/enfpro/enforcestatsfy03-08.pdf. 

9

 FEC, Fiscal Year 2020 Cong. Budget Justification, 2 (Mar. 18, 2019), 

https://www.fec.gov/resources/cmscontent/documents/FY20_congressional_budget_justification.pdf (explaining the budget 

climate); FEC, Fiscal Year 2019 Cong. Budget Justification, 2 (Feb. 12, 2018), 

https://www.fec.gov/resources/cmscontent/documents/FEC_FY_2019_Congressional_Budget_Justification.pdf (requesting a budget 

built on an assumption of a reduction from 345 to 335 in full-time equivalent staff positions); See 

Financial Services and General Government Appropriations Act, 2019, Pub. L. No. 116-6, Div. 

D, title V, 133 Stat. 13, 166 (Feb. 15, 2019) (awarding the requested amount). 

10 FY 2018 Status of Enforcement at 4; FY 2003-08 Enforcement Statistics at 2. 

11 FEC, Status of Enforcement — Fiscal Year 2019, First Quarter (10/1/2018 – 12/31/18), 1 

(Mar. 8, 2019) https://www.fec.gov/resources/cmscontent/documents/Status_of_Enforcement__FY2019_1stQtr.pdf; FY 2018 First Quarter Status 

of Enforcement at 1. 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 31 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

21 

during which plaintiff’s administrative complaints were filed thus show a very high-volume 

period for enforcement matters as the budgeted size of the agency’s staff has decreased. 

 Another major factor weighing against a finding that the Commission has acted contrary 

to law is the impact of the partial government shutdown of 2018-2019. This interruption of 

operations completely closed the doors of some federal agencies, including the FEC, throughout 

the lapse of funding, which began on December 22, 2018 and lasted until January 25, 2019, a 

period of 35 days. (FEC Facts ¶¶ 37, 57, 77, 92.) All four of the Giffords administrative 

complaints alleged to have initiated matters in the court complaint had been filed by then, so the 

shutdown completely halted any work that FEC staff may have been performing on those and all 

other FEC enforcement matters, since staffed were legally barred from working on them. (FEC 

Facts ¶¶ 37, 57, 77, 92.) The interruption substantially diminished the amount of time that FEC 

staff has had to work on those administrative complaints. In fact, at the time plaintiff filed this 

suit, the FEC had actually had less than the 120-day period in 52 U.S.C. § 30109(a)(8) in which 

to work on the fourth administrative complaint (MUR 7553) because only 103 non-shutdown 

days had passed between the filing of that complaint on December 7, 2018 and the date this suit 

was filed on April 24, 2019. 

This workload data means that the fourth TRAC factor and the third Common Cause

factor, which focus on the availability of agency resources, reinforce the failure of the complaint 

to plead unlawful delay. With a busier docket, the Commission has harder choices to make when 

allocating scarce resources to address pending matters that may have comparable importance. 

In sum, all of these circumstances combine to establish that plaintiff’s allegations do not 

state a claim that the Commission has acted unlawfully in handling plaintiff’s recent 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 32 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

22 

administrative complaints, which allege a legally and factually complex scheme of FECA 

violations over several election cycles. Plaintiff’s case should be dismissed. 

II. SUMMARY JUDGMENT SHOULD BE GRANTED 

 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 33 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

23 

 

A. Summary Judgment Standard 

Summary judgment is appropriate when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The court must view the record in the 

light most favorable to the party opposing the motion, giving the non-movant the benefit of all 

favorable inferences that can reasonably be drawn from the record and the benefit of any doubt 

as to the existence of a genuine issue of material fact. Defs. of Wildlife v. Dep’t of Agric., 311 F. 

Supp. 2d. 44, 53 (D.D.C. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 – 59 

(1970)). “To determine which facts are ‘material,’ a court must look to the substantive law on 

which each claim rests.” Id. (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). 

“A ‘genuine issue’ is one whose resolution could establish an element of a claim or defense and, 

therefore, affect the outcome of the action.” Id. (citing Celotex, 477 U.S. at 322, and Anderson, 

477 U.S. at 248). 

 

 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 34 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

24 

 

 

 

 

 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 35 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

25 

 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 36 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

26 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 37 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

27 

 

III. CONCLUSION 

For all the foregoing reasons, plaintiff Giffords has failed to state a claim on which relief 

can be granted, and the Complaint should be dismissed. 

 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Benjamin A. Streeter III 

Associate General Counsel Benjamin A. Streeter III 

kdeeley@fec.gov Attorney 

bstreeter@fec.gov 

July 1, 2019 FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

 (202) 694-1650 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 38 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

CERTIFICATE OF SERVICE 

I, Benjamin A. Streeter III, an attorney of record, hereby certify that I caused a copy of 

the foregoing Motion and Memorandum in Support of Defendant Federal Election Commission’s 

Motion to Dismiss, or in the Alternative, for Summary Judgment to be filed, both under seal and 

via redacted copy with the Clerk of the Court via its ECF system this date. I also certify that I 

served a copy of the unredacted version of this motion to counsel for the plaintiff via electronic 

mail delivery this date pursuant to their consent to such service. 

 /s/ Benjamin A. Streeter III____________ 

 Benjamin A. Streeter III 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 39 of 40
UNDER SEAL 

CONFIDENTIAL 30109(a)(12)(A) MATERIAL 

2 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

GIFFORDS, ) 

 ) 

 Plaintiff, ) Civ. No. 19-1192 (EGS) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) PROPOSED ORDER 

 ) 

 Defendant. ) 

 ) 

[PROPOSED] ORDER 

 Upon consideration of defendant Federal Election Commission’s Motion to Dismiss, or 

in the Alternative, for Summary Judgment, and any opposition filed by plaintiff Giffords, it is 

hereby ORDERED that the Federal Election Commission’s Motion to Dismiss is GRANTED, 

and plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

Dated: _______________, 2019 ____________________________ 

 The Honorable Emmet G. Sullivan 

United States District Judge 

Case 1:19-cv-01192-EGS Document 19 Filed 07/02/19 Page 40 of 40