UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

GIFFORDS, )

)

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

)

v. )

)

FEDERAL ELECTION COMMISSION, ) REPLY IN SUPPORT OF

) MOTION TO DISMISS

Defendant. )

)

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION TO DISMISS

The Federal Election Commission (“FEC” or “Commission”) has moved to dismiss

because plaintiff Giffords has failed to state a claim upon which relief can be granted. See Fed. 

R. Civ. P. 12(b)(6); Mem. in Supp. of FEC’s Mot. to Dismiss, or in the Alternative, for Summ. J.

(“Mem.”) (July 2, 2019) (Docket No. 19).

1

 Plaintiff challenges the FEC’s alleged failure to act 

upon four administrative complaints, all filed with the agency in the latter half of 2018, pursuant 

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

showed, however, plaintiff cannot demonstrate that the FEC’s handling of these matters was 

“contrary to law” under the deferential standards of review. Relatively little time has passed 

 1

 The Commission’s motion to dismiss was filed on July 1, 2019, together with an 

alternative motion for summary judgment (Docket No. 17) which was to be placed under seal 

pursuant to the protective order that had been previously issued (Minute Order, June 21, 2019; 

Proposed Protective Order, Docket No. 16-1). The Court denied this initial filing without 

prejudice for failure to include a motion to seal. (Min. Order, July 2, 2019.) However, the FEC 

had also filed a redacted version of its dispositive motion, in which all parts submitted in support 

of its motion to dismiss were unredacted and publicly available. (See Mem. (July 2, 2019) 

(Docket No. 19).) Plaintiff Giffords has filed an opposition to that motion to dismiss (Docket 

No. 22), and the Commission now replies. 

Case 1:19-cv-01192-EGS Document 23 Filed 07/23/19 Page 1 of 6
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since the complaints were filed, Giffords concedes that the four matters are complex, and the 

FEC has discretion in allocating its limited resources, particularly during what the agency has 

shown to be a period of heavy administrative enforcement activity. (See Mem. at 12-22.) 

In its opposition, plaintiff does not seem to seriously dispute the Commission’s showing 

as to these key factors, but it essentially argues that cases alleging FEC delay cannot be resolved 

on a Rule 12(b)(6) motion because doing so would involve deciding questions of fact. (See Pl.’s 

Opp’n to Def.’s Mot. to Dismiss (“Opp.”) (Docket No. 22).) Indeed, plaintiff appears to take the 

position that the mere filing of section 30109(a)(8) delay suits after the 120-day jurisdictional 

threshold for such suits insulates them from dismissal. But plaintiff provides no support for its

positions, and they are incorrect. Plaintiff also claims that particular elements of the FEC’s 

motion, including the short time that has passed and the complexity of the four matters, cannot 

by themselves justify dismissal. However, those are red herrings. The FEC’s actual position is 

that all of the factors it has raised together mean that plaintiff’s claim fails as a matter of law, 

even assuming the facts plaintiff alleges are true. Plaintiff’s complaint should be dismissed. 

I. THE PASSAGE OF TIME SINCE THE ALLEGED ADMINISTRATIVE 

COMPLAINTS, ALL FILED IN THE LATTER HALF OF 2018, HAS NOT BEEN 

UNREASONABLE

The Commission showed that the limited time the four FEC administrative enforcement 

matters plaintiff describes have been pending is not unreasonable under the relevant standards of 

review. (Mem. at 15-16.) Under those standards, Giffords must allege agency delay that is 

“arbitrary and capricious.” Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980); see In 

re Nat’l Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984). 

In evaluating a claim of unreasonable delay, courts consider a number of factors, including the 

length of the alleged delay, the novelty and complexity of the matters involved, and the need to 

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defer to agency expertise in allocating limited public resources. See Common Cause, 489 F. 

Supp. at 744; Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)

(“TRAC”). With regard to the FEC in particular, the D.C. Circuit has made clear that the 120-

day period in section 30109(a)8) is merely a jurisdictional threshold, so there is no specific

timetable for the handling or resolution of these matters by the agency. See FEC v. Rose, 806 

F.2d 1081, 1091-92 (D.C. Cir. 1986).

Plaintiff does not dispute that these are the applicable standards, nor does it claim that 

any definite timetable exists for FEC action on administrative enforcement matters. Instead 

plaintiff argues, in effect, that whether a time frame is reasonable in this context can never be 

resolved on a motion to dismiss. (Opp. at 3-5.) Plaintiff goes so far as to claim that after 

alleging that 120 days has passed, plaintiff has done “all that is required to survive a Rule 

12(b)(6) motion.” (Id. at 5.) Thus, it is plaintiff’s view that no delay case should be dismissed

on this ground because doing so “requires a factual review of the evidence regarding the 

agency’s actions.” (Id. at 4.) But plaintiff cites no authority to support its position. Of course, 

the facts of a particular case are important, but that clearly does not preclude the possibility that a 

plaintiff’s allegations can be accepted as true and found legally deficient. At the same time, 

plaintiff actually claims that the Commission has argued that all delay suits must be dismissed 

for failure to state a claim. (Id.) However, the Commission has argued only that the passage of 

time here, together with the other key factors discussed below, means that plaintiff has failed to 

state a claim in the circumstances of this case. (Mem. at 15-16.) 

Plaintiff claims (Opp. at 4-5) that the FEC’s reliance on case law showing that the agency 

need not complete action on an administrative enforcement matter within far longer time periods 

than the brief ones involved here is misplaced because plaintiff’s suit challenges a mere “failure 

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to act.” However, the standards for evaluating the overall time consumed by the underlying 

enforcement matters are relevant to plaintiff’s claims, and plaintiff offers no alternative guidance 

for judging interim progress. These cases make clear that judicial review of the speed with 

which the Commission handles such matters is deferential and that there is no set time frame for 

the agency to handle them. See, e.g., Rose, 806 F.2d at 1091-92.

In sum, plaintiff cannot justify its position that no section 30109(a)(8) claim can be 

dismissed as long as it was filed after the jurisdictional filing threshold of 120 days. And 

plaintiff cannot show that the time that has passed here constitutes “arbitrary and capricious” 

delay under the applicable standards. 

II. THE COMPLEXITY OF THE ENFORCEMENT MATTERS PLAINTIFF 

DESCRIBES IS A CRITICAL FACTOR WEIGHING AGAINST ANY FINDING 

OF UNREASONABLE DELAY

The Commission showed that the matters about which plaintiff complains are legally and 

factually complicated (Mem. at 16-18), and in fact plaintiff has conceded the “complexity” of the 

relevant activities (Opp. at 5). Plaintiff also does not dispute the FEC’s showing that FECA’s 

mandatory administrative process takes significant time, nor that these enforcement matters 

involve economic and political issues, not issues of human safety that would be more urgent to 

resolve. (Mem. at 16-18.) However, plaintiff claims that the complexity of the underlying 

administrative proceeding cannot justify dismissal of its delay suit. (Opp. at 5.) But the 

Commission never claimed that complexity alone was sufficient; again, plaintiff exaggerates the 

FEC’s position. And as with plaintiff’s arguments as to timing, discussed above, plaintiff claims

that “whether or how [complexity of the allegations] bears on the reasonableness of the 

Commission’s inaction” (Opp. at 5) can only be considered at the “merits stage,” not in a Rule 

12(b)(6) motion. But the Common Cause and TRAC factors governing review here clearly 

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include analysis of the nature of the underlying claims, and plaintiff provides no authority to 

support the claim that these factors cannot be considered at the dismissal stage. See Common 

Cause, 489 F. Supp. at 744; TRAC, 750 F.2d at 80. 

Thus, while the Commission does not argue that the complexity of issues raised 

administratively alone renders the court complaint legally insufficient, the nature of the legal and 

factual issues is highly relevant to whether the agency has acted reasonably in handling them.

III. THE COMMISSION HAS DISCRETION IN ALLOCATING ITS LIMITED

RESOURCES DURING A PERIOD OF HEAVY ENFORCEMENT ACTIVITY

Finally, the Commission showed that it receives considerable judicial deference in 

allocating its resources, and it cited a wealth of public data showing the heavy enforcement 

workload it has experienced during the time that the alleged enforcement complaints at issue

here have been pending. (Mem. at 18-22.) Plaintiff does not dispute that the FEC gets this 

deference or that the FEC has recently experienced a busy docket. But plaintiff argues (Opp. at 

6-7) that these factors alone are insufficient to compel dismissal for failure to state a claim under 

Rule 12(b)(6). Once again, however, the FEC does not claim that this deference and the high 

volume of enforcement matters constitute a shield against all delay suits. Instead, when 

considered together with the other key factors discussed above, they mean plaintiff cannot meet 

its burden to show that the FEC has acted unreasonably here. 

Plaintiff fails to provide any specific reason to doubt the sources of information the 

Commission cites to demonstrate its heavy enforcement workload, but it vaguely asserts (Opp. at 

6) that the agency’s arguments “appear to rely in part on cherry-picked data.” However, the 

Commission cited only documents freely available on the Commission’s website at 

www.fec.gov. (Mem. at 19-21.) Because this data is publicly available and not subject to 

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

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the Commission showed. See Mem. at 19 n.6; 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, plaintiff does not dispute the accuracy of the FEC’s data. And it provides no other 

information to counter the FEC’s showing, despite the public nature of the information from 

which the Commission drew the data it supplied.

2

 

IV. CONCLUSION

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

granted, and its court 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 23, 2019 FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

(202) 694-1650

 2 Plaintiff does specifically object (Opp. at 6 n.2) that the Commission erred in relying 

upon its Statement of Material Facts to support two statements it made regarding the significant 

delay caused by the 2018-2019 partial government shutdown (Mem. at 21). However, the Court 

can take judicial notice of the public sources of information for that disruption of government 

services and its effect on the FEC, even if they were inadvertently not included in the motion to 

dismiss portion of the Commission’s filing. See FEC Plan for Agency Operations in the Absence 

of a Fiscal Year 2019 Appropriation (Dec. 2018), https://www.fec.gov/resources/cmscontent/documents/FEC_shutdown_plan_updated_Dec_2018.pdf; OPM Memorandum for Chief 

Human Capital Officers (Jan. 27, 2019), https://www.chcoc.gov/content/pay-and-benefitsemployees-affected-lapse-appropriations-1. Plaintiff does not dispute the accuracy of the FEC’s

statements and the general time of the shutdown is hardly subject to reasonable dispute.

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