UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PATRIOTS FOUNDATION

4020 121st Street

Urbandale, Iowa 50323, 

Plaintiff,

v.

FEDERAL ELECTION COMMISSION

1050 First St., NE

Washington, D.C. 20463,

Defendant,

and

HILLARY FOR AMERICA

P.O. Box 5256

New York, NY 10185-5256

CORRECT THE RECORD

800 Maine Avenue SW, Suite 400

Washington, DC 20024

MEDIA MATTERS FOR AMERICA

800 Maine Avenue SW, Suite 400

Washington, DC 20024

AMERICAN BRIDGE 21ST CENTURY

FOUNDATION

800 Maine Avenue SW, Suite 400

Washington, DC 20024

AMERICAN BRIDGE 21ST CENTURY PAC

800 Maine Avenue SW, Suite 400

Washington, DC 20024

DAVID BROCK

800 Maine Avenue SW, Suite 400

Washington, DC 20024

Defendant-Intervenors.

Civil Action No. 1:20-cv-02229

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF 

DEFENDANT-INTERVENORS’ 

MOTION FOR JUDGMENT ON THE 

PLEADINGS

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TABLE OF CONTENTS

INTRODUCTION ....................................................................................................................1

BACKGROUND ......................................................................................................................2

I. The Federal Election Commission ......................................................................2

II. The Internet Exemption ......................................................................................4

III. TPF’s Administrative Complaint ........................................................................5

IV. Plaintiff’s Lawsuit..............................................................................................9

STANDARD OF REVIEW.....................................................................................................10

ARGUMENT .........................................................................................................................11

I. Plaintiff lacks standing. ....................................................................................11

A. Plaintiff is required to establish Article III standing................................12

B. Plaintiff has not suffered a legally cognizable informational injury.........13

1. Plaintiff’s administrative complaint seeks legal determinations—not 

new factual information—about the in-kind contributions allegedly 

made by CTR PAC. ...................................................................14

2. Plaintiff fails to allege any facts to support its claim that MMFA 

made in-kind contributions to CTR PAC, AB PAC, or HFA. ......18

3. Plaintiff claims to lack information about payments made by AB 

Foundation to AB PAC, but that information is already publicly 

available. ...................................................................................19

4. Plaintiff has failed to show how the alleged lack of information has 

caused it any concrete harm. ......................................................20

C. Plaintiff’s alleged injury was not caused by the FEC’s delay. .................22

D. Plaintiff lacks organizational standing because no discrete programmatic 

activity will be imminently and adversely affected by the FEC’s delay. ..23

II. TPF has not pled facts sufficient to allege that the FEC’s delay is contrary to law.

........................................................................................................................26

A. TPF has not been prejudiced by the FEC’s delay when it waited four years 

before filing the administrative complaint (the fifth TRAC principle). .....28

B. The FEC lacked a quorum for the majority of the time the administrative 

complaint has been pending, and since regaining quorum, it has 

appropriately prioritized more recent matters (the first Common Cause 

factor and the fourth TRAC principle). ...................................................29

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C. The allegations in the administrative complaint are novel, speculative, 

unsupported by any evidence of a violation, and there is no urgent threat of 

recurrence (the second, third, and fourth Common Cause factors)...........32

D. The Complaint does not allege that any of the other TRAC principles are 

satisfied. ...............................................................................................33

CONCLUSION.......................................................................................................................35

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES

21st Century Telesis Joint Venture v. FCC,

318 F.3d 192 (D.C. Cir. 2003) ...........................................................................................12

Am. Nat’l Ins. Co. v. FDIC,

642 F.3d 1137 (D.C. Cir. 2011) .........................................................................................10

Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015).............................................................................................12

Ashcroft v. Iqbal,

556 U.S. 662 (2009).................................................................................................... 11, 26

ASPCA v. Feld Entm’t, Inc.,

659 F.3d 13 (D.C. Cir. 2011).............................................................................................13

Bell Atl. v. Twombly,

550 U.S. 544 (2007).................................................................................................... 10, 11

Biton v. Palestinian Interim Self-Gov’t Auth.,

310 F. Supp. 2d 172 (D.D.C. 2004).............................................................................. 10, 20

Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247 (3d Cir. 2014)...............................................................................................25

Browning v. Clinton,

292 F.3d 235 (D.C. Cir. 2002) ...........................................................................................10

Campaign Legal Ctr PAC. v. FEC,

No. 18-CV-0053 (TSC), 2020 WL 2735590 (D.D.C. May 26, 2020) ..................................12

Campaign Legal Ctr. v. FEC,

507 F. Supp. 3d 79 (D.D.C. 2020).....................................................................15, 16, 17, 35

Campaign Legal Ctr. v. FEC,

No. 19-2336 (JEB), 2020 WL 2996592 (D.D.C. June 4, 2020) ............................5, 16, 17, 35

Carey v. FEC,

791 F. Supp. 2d 121 (D.D.C. 2011)......................................................................................6

Citizens for Responsibility & Ethics in Washington v. FEC,

236 F. Supp. 3d 378 (D.D.C. 2017) (CREW 2017).................................................... 6, 12, 20

Citizens for Responsibility & Ethics in Washington v. FEC,

799 F. Supp. 2d 78 (D.D.C. 2011) (CREW 2011) ................................................... 13, 14, 20

Case 1:20-cv-02229-EGS Document 21-1 Filed 07/20/21 Page 4 of 45
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Common Cause v. FEC,

108 F.3d at 419...................................................................................................... 12, 13, 14

Common Cause v. FEC,

489 F. Supp. 738 (D.C.C. 1980).................................................................................. passim

Common Cause v. FEC,

842 F.2d 436 (D.C. Cir. 1988) ...........................................................................................31

Correct the Record,

FEC, https://www.fec.gov/data/committee/C00578997/ (last visited July 20, 

2021) ..................................................................................................................................7

CREW v. U.S. Dep’t of the Treasury, IRS,

21 F. Supp. 3d 25 (D.D.C. 2014)........................................................................................13

Ctr. for Biological Diversity v. Bernhardt,

442 F. Supp. 3d 97 (D.D.C. 2020)......................................................................................21

Ctr. for Biological Diversity v. Haaland,

849 F. App’x 2 (D.C. Cir. 2021)........................................................................................21

Democratic Nat. Comm. v. FEC,

552 F. Supp. 2d 20 (D.D.C. May 14, 2008)........................................................................30

Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity,

878 F.3d 371 (D.C. Cir. 2017) ...........................................................................................21

Envtl. Working Grp. v. U.S. Food & Drug Admin.,

301 F. Supp. 3d 165 (D.D.C. 2018)....................................................................................25

FEC v. Democratic Senatorial Campaign Comm.,

454 U.S. 27 (1981)............................................................................................................29

FEC v. Rose,

806 F.2d 1081 (D.C. Cir. 1986) ............................................................................... 3, 29, 34

Fla. Audubon Soc. v. Bentsen,

94 F.3d 658 (D.C. Cir. 1996).............................................................................................24

Free Speech for People v. FEC,

442 F. Supp. 3d 335 (D.D.C. 2020).............................................................................. 13, 20

Friends of Animals v. Jewell,

115 F. Supp. 3d 107 (D.D.C. 2015), aff’d, 828 F.3d 989 (D.C. Cir. 2016)............... 18, 19, 21

Friends of Animals v. Jewell,

824 F.3d 1033 (D.C. Cir. 2016) .........................................................................................21

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Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000).................................................................................................... 12, 22

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982)..........................................................................................................23

In re Nat. Cong. Club,

No. 84-5701, 1984 WL 148396 (D.C. Cir. Oct. 24, 1984)...................................................27

Jeanblanc v. Oliver Carr Co.,

No. 94–7118, 1995 WL 418667 (D.C. Cir. June 21, 1995)..................................................34

Jerome Stevens Pharm., Inc. v. FDA,

402 F.3d 1249 (D.C. Cir. 2005) .........................................................................................10

Judicial Watch, Inc. v. FEC,

293 F. Supp. 2d 41 (D.D.C. 2003)......................................................................................12

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ......................................................10

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).............................................................................................. 12, 21, 24

Nader v. FEC,

725 F.3d 226 (D.C. Cir. 2013) ...........................................................................................14

National Taxpayers Union, Inc. v. United States,

68 F.3d 1428 (D.C. Cir.1995)...................................................................................... 23, 25

Plain v. AT & T Corp.,

424 F. Supp. 2d 11 (D.D.C. 2006)......................................................................................10

Pro–Football, Inc. v. Harjo,

415 F.3d 44 (D.C. Cir.2005)..............................................................................................34

Pub. Citizen Health Rsch. Grp. v. Comm’r, Food & Drug Admin.,

740 F.2d 21 (D.C. Cir. 1984).............................................................................................28

Qi v. F.D.I.C.,

755 F. Supp. 2d 195 (D.D.C. 2010)....................................................................................10

Smallwood v. United States Dep’t of Just.,

266 F. Supp. 3d 217 (D.D.C. 2017).............................................................................. 10, 13

Spann v. Colonial Vill., Inc.,

899 F.2d 24 (D.C. Cir. 1990).............................................................................................25

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Stockman v. FEC,

944 F. Supp. 518 (E.D. Tex. 1996), aff’d as modified, 138 F.3d 144 (5th Cir. 

1998) .................................................................................................................... 28, 32, 33

Telecommunications Research & Action Center (“TRAC”) v. FCC,

750 F.2d 70 (D.C. Cir. 1984)............................................................................27, 28, 29, 33

Vroom v. FEC,

951 F. Supp. 2d 175 (D.D.C. 2013).............................................................................. 14, 16

Warth v. Seldin,

422 U.S. 490 (1975)..........................................................................................................23

Wertheimer v. FEC,

268 F.3d 1070 (D.C. Cir. 2001) ........................................................................14, 16, 17, 18

STATUTES

28 U.S.C § 2462........................................................................................................................6

52 U.S.C. §§ 30106, 30107, 30108 ............................................................................................2

52 U.S.C. §§ 30106(c), 30107(a)(6)–(9) ....................................................................................4

52 U.S.C. §§ 30106(c), 30109(a)(2)...........................................................................................3

52 U.S.C. § 30109...............................................................................................................2, 12

52 U.S.C. § 30109(a)(1)......................................................................................................3, 12

52 U.S.C. § 30109(a)(2)......................................................................................................3, 30

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

52 U.S.C. § 30109(a)(6)(A).......................................................................................................3

52 U.S.C. § 30109(a)(8)..........................................................................................................13

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

52 U.S.C. § 30109(a)(8)(B).......................................................................................................3

52 U.S.C. § 30109(a)(8)(C).................................................................................................9, 34

52 U.S.C. § 30116(a)(7)(B)(i)....................................................................................................4

Federal Election Campaign Act of 1971.....................................................................................2

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OTHER AUTHORITIES

11 C.F.R. § 114.3(d)(3)..................................................................................................... 32, 33

11 C.F.R. § 100.26....................................................................................................................4

11 C.F.R. § 109.21....................................................................................................................4

11 C.F.R. § 109.21(c)................................................................................................................4

71 Fed. Reg. 18589 (April 12, 2006)..........................................................................................5

Fed. R. Civ. Proc. 12(b)(1) ......................................................................................................10

Fed. R. Civ. Proc. 12(b)(6) ......................................................................................................10

Fed. R. Civ. Proc. 12(c).......................................................................................................1, 10

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TABLE OF ABBREVIATIONS

American Bridge 21st Century Foundation AB Foundation

American Bridge 21st Century PAC AB PAC

Campaign Legal Center and its Senior Director, Policy & 

Strategic Partnerships Catherine Hinckley Kelley (collectively)

CLC

Citizens for Responsibility & Ethics in Washington v. FEC, 799 

F. Supp. 2d 78 (D.D.C. 2011)

CREW 2011

Citizens for Responsibility & Ethics in Washington v. FEC, 236 

F. Supp. 3d 378 (D.D.C. 2017)

CREW 2017

Correct the Record CTR PAC

Federal Election Commission FEC

Hillary for America HFA

Matter Under Review MUR

Media Matters for America MMFA

Political Action Committee PAC

Telecommunications Research & Action Center TRAC

The Federal Election Campaign Act of 1971, as amended FECA (or the “Act”)

The Federal Election's Office of General Counsel OGC

The Patriots Foundation TPF

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INTRODUCTION

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendant-Intervenors

Hillary for America (“HFA”), Correct the Record (“CTR PAC”), Media Matters for America 

(“MMFA”), American Bridge 21st Century Foundation (“AB Foundation”), American Bridge 21st 

Century PAC (“AB PAC”), and David Brock seek judgment on the pleadings as to the Complaint 

filed by The Patriots Foundation (“TPF”) against the Federal Election Commission (“FEC” or the 

“Commission”). This Court should grant Defendant-Intervenors’ motion because Plaintiff TPF has 

failed to meet its burden of demonstrating standing and has failed to state a claim upon which relief 

may be granted. Furthermore, given Plaintiff’s inexcusable and prejudicial delay in filing the 

administrative action that eventually led to the filing of this lawsuit, the relief Plaintiff seeks is 

barred by the equitable remedy of laches. 

Plaintiff lacks standing for several reasons. First, Plaintiff alleges an informational injury, 

but what Plaintiff actually seeks a legal determination and to have the law enforced to its liking, 

rather than the disclosure of FECA-required information. Moreover, the information Plaintiff 

claims to seek is already publicly available. Plaintiff has failed to meet its burden of alleging by a 

preponderance of the evidence that relevant information exists that is not already available to 

Plaintiff. Furthermore, even if Plaintiff could somehow show that it would obtain new information 

as a result of a favorable ruling in this matter, there is real reason to doubt that the information 

Plaintiff seeks would be useful. The subject of Plaintiff’s complaint—the 2016 election—is far in 

the public’s rearview mirror; Secretary Clinton is neither a current public officeholder nor 

candidate, and there is no indication that she will run for public office in the future; and at least 

two of the organizations Plaintiff complains about are now dormant or defunct. Second, Plaintiff 

alleges an organizational injury, but the Complaint fails to show that any discrete programmatic 

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activity will be imminently and adversely affected by the FEC’s delay on taking public action in 

this case. 

In addition to lacking standing, Plaintiff’s Complaint does not plead facts sufficient to 

support the allegation that the FEC’s failure to take public action on its administrative complaint 

is contrary to law. In order to make such a showing, TPF must allege that the FEC’s failure to take 

public action is “arbitrary and capricious,” which is a standard that is highly deferential to 

administrative agencies like the FEC and necessarily tied to the specific facts of each case. See

Common Cause v. FEC, 489 F. Supp. 738, 744 (D.C.C. 1980). Here, Plaintiff never once alleges 

any facts demonstrating that the FEC’s delay—and not its own decision to file the administrative 

complaint nearly four years after the alleged illegal conduct occurred—is the cause of Plaintiff’s 

harm. 

Finally, the relief sought by Plaintiff in this case is barred by the equitable doctrine of 

laches. Plaintiff waited nearly four years after the alleged wrongful conduct occurred to file an 

administrative complaint with the FEC. Now, in an ironic and blatant attempt to instruct the FEC 

how to prioritize its matters, Plaintiff claims that the FEC is taking too much time to act on its 

Complaint. For these reasons, and as further explained below, Defendant-Intervenors respectfully 

request that this Court grant the instant motion in their favor. 

BACKGROUND

I. The Federal Election Commission

The FEC is an independent agency of the United States government with “exclusive 

jurisdiction” over the administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act of 1971, as amended (“FECA” or the “Act”). See generally 52 U.S.C. §§ 30106, 

30107, 30108. The Commission is authorized to institute investigations of possible violations of 

the FECA. Id. at § 30109. It may also institute a civil action for relief if it is unable to correct or 

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prevent any violation of the Act pursuant to its administrative enforcement processes. Id. 

§ 30109(a)(6)(A).

Any person who believes a violation of the Act has occurred may file a complaint with the 

Commission. Id. § 30109(a)(1). After reviewing the complaint and any response filed by the 

respondent, the Commission considers whether there is “reason to believe” a violation of the Act 

has occurred. Id. § 30109(a)(2). If at least four of the FEC’s Commissioners vote to find such 

reason to believe,1 the FEC may investigate the alleged violation or engage in pre-probable cause 

conciliation; otherwise, the FEC dismisses the administrative complaint. Id. §§ 30106(c), 

30109(a)(2). 

FECA authorizes a complainant to challenge the Commission’s treatment of an 

administrative complaint in only two circumstances. First, if at any point the Commission 

determines that no violation has occurred or decides to dismiss a complaint, the Act authorizes 

limited judicial review of the Commission’s dismissal decision. See id. § 30109(a)(8)(A). A 

complainant must file a dismissal suit “within 60 days after the date of the dismissal.” 52 U.S.C. 

§ 30109(a)(8)(B). Second, and relevant here, under FECA, if the FEC has not acted on a complaint 

within 120 days of when it was filed, the complainant may file a petition in the United States 

District Court for the District of Columbia seeking a declaration that the agency’s failure to act is 

contrary to law and ordering the agency to conform with such declaration within 30 days. See id. 

§ 30109(a)(8)(A), (C). The 120-day period is not a timetable within which the Commission must 

resolve an administrative complaint; it is merely a jurisdictional threshold before which the 

complainant may not file suit. E.g., FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986) 

 1 Prior to the Commission’s vote, the FEC’s Office of General Counsel (“OGC”) recommends to 

the Commission in a report whether there is “reason to believe” a violation has occurred. Id. 

§ 30109(a)(2). 

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(“unequivocally” rejecting the contention “that [FECA] required the Commission to act within 120 

days or within an election cycle.”).

A quorum is required for the FEC to conduct much of its business, including two items of 

direct relevance in this lawsuit. First, the FEC must have a quorum in order to be able to vote to 

take action to investigate and conciliate a complaint. See id. §§ 30109(a)(2)–(4). Second, the FEC 

must have a quorum in order to vote to defend the agency in legal proceedings. See 52 U.S.C. §§ 

30106(c), 30107(a)(6)–(9).

II. The Internet Exemption

FECA provides that “expenditures made by any person in cooperation, consultation, or 

concert, with, or at the request or suggestion of, a candidate, his authorized political committees, 

or their agents, shall be considered to be a contribution to such candidate.” 52 U.S.C. 

§ 30116(a)(7)(B)(i). Expenditures made for communications are governed by 11 C.F.R. § 109.21, 

which establishes a three-part test to determine whether a communications expenditure constitutes 

a coordinated communication, and therefore, an in-kind contribution to a federal campaign or party 

committee. 11 C.F.R. § 109.21. The regulation provides that the “content prong” of the test will 

only be satisfied by (1) an “electioneering communication” or (2) a “public communication” that 

republishes campaign materials, contains express advocacy or its functional equivalent, or refers 

to federal candidates or party committees at certain times before an election. Id. § 109.21(c) 

With regard to internet communications, Commission regulations only include within the 

definition of “public communications” “communications placed for a fee on another person’s Web 

site.” Id. § 100.26 (emphasis added). The definition, therefore, excludes internet communications 

which are not placed for a fee on another person’s website, including communications posted or 

transmitted for free or posted on an entity’s own website. This is often referred to as the “internet 

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exemption” to the Act. The Commission has explained that its “general exclusion of internet 

communications from treatment as coordinated communications (and thus as in-kind 

contributions) is deliberate,” and was made because the Commission recognized the internet as a 

“unique and evolving mode of mass communication and political speech that is distinct from other 

media” and “warrants a restrained regulatory approach.” MURs 6940, 7097, 7146, 7160, 7193 

(Correct the Record, et al.), Statement of Reasons, Vice Chairman Matthew S. Petersen & 

Commissioner Caroline C. Hunter at 11 (Aug. 21, 2019); Internet Communications, 71 Fed. Reg. 

18589 (April 12, 2006).

Since the promulgation of the internet exemption in 2006, the Commission has consistently 

interpreted it to encompass expenses directly incurred to produce exempted internet 

communications. Statement of Reasons at 12 n.60 (citing to previous Commission decisions 

excluding production costs from the definition of contribution). This applies even when the direct 

input costs for a covered communication, such as for email lists and data licenses, direct production 

expenses, and staff time associated with the creation of the communication, are significant. See 

Campaign Legal Ctr. v. FEC, No. 19-2336 (JEB), 2020 WL 2996592 at *11 (D.D.C. June 4, 2020).

III. TPF’s Administrative Complaint 

On April 8, 2020—nearly four years after the conclusion of the 2016 general election—

Plaintiff TPF filed its administrative complaint, which the FEC designated as Matter Under 

Review (“MUR”) 7726, against five respondents: CTR PAC, AB PAC, AB Foundation, MMFA, 

and David Brock. HFA was not named as a respondent in the administrative complaint but was 

notified of the complaint by the FEC and granted an opportunity to respond. The allegations in 

Plaintiff’s administrative complaint are generally related to the 2016 election and the ways in 

which Defendant-Intervenors interacted with each other. There were a number of FEC complaints 

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filed by various individuals and organizations in 2015 and 2016 related to the same or similar 

activity addressed in Plaintiff’s complaint. See ECF No. 1-1, Admin. Compl. at 15 n.43 (citing 

MURs 6940, 7097, 7146, and 7193). Yet Plaintiff waited four years, until the statute of limitations 

has nearly expired, to file its own complaint. See, e.g., Citizens for Responsibility & Ethics in 

Washington v. FEC, 236 F. Supp. 3d 378, 392 (D.D.C. 2017) (CREW 2017) (applying five-year 

limitations period set forth in 28 U.S.C § 2462 to FECA enforcement actions brought by the 

Commission). 

With the exception of HFA, the remaining Defendant-Intervenors are a collection of 

organizations that were founded by David Brock. HFA is the principal campaign committee of 

former United States Secretary of State Hillary Clinton, who was the nominee of the Democratic 

Party for the office of President in the 2016 election. CTR PAC is a “hybrid” or Carey political 

action committee (“PAC”) that registered with the FEC in June 2015. CTR PAC was active during 

the 2016 election cycle, serving as a strategic research and rapid response team designed to defend 

Secretary Clinton from baseless political attacks. As a hybrid PAC, CTR PAC maintained one 

bank account that was subject to the Act’s contribution limits and source restrictions and could 

make contributions to candidates, and a second bank account that could accept unlimited 

contributions from any source but could not contribute to federal candidates. See Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011). In other words, CTR PAC was half traditional PAC and half 

super PAC. See id.

CTR PAC conducted the vast majority of its activities online, using its website and social 

media accounts to set the record straight about Secretary Clinton’s record when her opponents and 

media outlets made false and misleading claims about her. CTR PAC also shared similar content 

with the people who subscribed to its email list. It conducted a handful of other activities that were 

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not related to its online presence, but those activities were relatively rare and represented a minor 

portion of its program. CTR PAC reported every dollar it spent—for online and non-online 

activities— from both of its accounts as “expenditures” or “disbursements” on its regularly filed 

FEC reports and included a purpose description for each itemized disbursement. See Correct the 

Record, FEC, https://www.fec.gov/data/committee/C00578997/ (last visited July 20, 2021). CTR 

PAC has been dormant since the 2016 election. Indeed, it filed a request for termination with the 

FEC nearly two years ago in December 2019. ECF No. 1-1, Admin. Compl. at 1 n. 1. 

The third organization, AB PAC, is an independent expenditure-only committee founded 

in 2010. AB PAC is a large research, video tracking, and rapid response organization, and it 

operates on the Democratic side of the aisle. The fourth organization, MMFA, is an incorporated 

tax-exempt Section 501(c)(3) organization that was established to work with members of the media 

to reduce occurrences of excessive bias in the media. The fifth and last organization, AB 

Foundation, is a tax-exempt Section 501(c)(4) organization that is “dedicated to opposing the 

conservative movement’s extreme ideology and exposing its dishonest tactics.” 

Plaintiff’s administrative complaint makes the following vague and unsupported 

allegations: (1) MMFA coordinated with HFA on media services that constituted prohibited and 

unreported in-kind contributions from MMFA to HFA; (2) AB Foundation shared staff, office 

space, and equipment with AB PAC, and although AB Foundation paid AB PAC for those costs 

and publicly reported those payments, those payments were inaccurate insofar as they were based 

on estimates rather than actual costs; (3) AB PAC and CTR PAC coordinated with HFA such that 

their purported independent expenditures should have been reported as in-kind contributions to 

HFA; and (4) AB PAC made prohibited in-kind contributions to other unnamed Democratic 

campaigns. Compl., See ECF No. 1, Compl., at ¶ 4. 

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On July 6, 2020, MMFA, AB Foundation, CTR PAC, AB PAC, and HFA filed a 

consolidated response to TPF’s administrative complaint. See ECF No. 10-2, Admin. Response. 

In their response, the administrative respondents argued that each of TPF’s allegations were rooted 

in speculation and a misreading of the law rather than in evidentiary support. Specifically, they 

argued that the administrative complaint did not present any facts or evidence indicating that: (1) 

MMFA made in-kind contributions to HFA, CTR PAC, or AB PAC; (2) AB Foundation made inkind contributions to AB PAC or that AB PAC misreported its activity; or (3) CTR PAC and AB 

PAC made in-kind contributions to HFA. Finally, the response noted that the administrative 

complaint provided no evidence that AB PAC ever provided research services to a campaign 

committee for free, let alone any evidence of which campaign committee may have received such 

services. Id.

TPF’s administrative complaint was filed in the midst of unusual circumstances. For seven 

months before TPF filed its administrative complaint, and a total of eight months after, the FEC 

lacked a quorum of members and was thus unable to take action on the complaint. Indeed, the 

Commission had a quorum until former Commissioner Matthew Petersen resigned in late August 

2019. FEC, “Matthew Petersen to depart Federal Election Commission,” (Aug. 26, 2019). 

Plaintiff’s complaint was filed in April 2020, when the FEC lacked quorum. Two months after 

TPF filed its administrative complaint, quorum was restored for a brief period when Trey Trainor 

III was sworn in as a Commissioner effective June 5, 2020. FEC, “James E. Trainor III sworn in 

as Commissioner,” (June 5, 2020). But that quorum was short lived, as Commissioner Caroline 

Hunter resigned a month later, effective July 3, 2020. FEC, “Caroline C. Hunter to depart Federal 

Election Commission,” (June 26, 2020). It was not until December 10, 2020, that the FEC again 

regained quorum and restored its activities to full strength. FEC, “Statement of Commissioner 

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9

Ellen L. Weintraub On the Senate’s Votes to Restore the Federal Election Commission to Full 

Strength,” available at https://www.fec.gov/resources/cms-content/documents/2020-12-QuorumRestoration-Statement.pdf (Dec. 9, 2020).

IV. Plaintiff’s Lawsuit 

Pursuant to 52 § 30109(a)(8)(A), (C), Plaintiff filed this lawsuit on August 13, 2020, 127 

days after filing its administrative complaint with the FEC. Plaintiff’s nine-page complaint alleges 

one cause of action: “the FEC’s failure to act on its administrative complaint is contrary to law 

under 52 U.S.C. § 30109(a)(8)(A).” ECF No. 1, Compl. at ¶ 40, and barely any facts to support 

that assertion. Plaintiff seeks a declaratory judgment and an order from this Court requiring the 

FEC to act on its complaint within 30 days. 

Because this lawsuit was filed when the FEC lacked quorum, the agency could not obtain 

the votes needed to defend the suit. Accordingly, Defendant-Intervenors moved to intervene and 

were granted intervention by this Court on October 28, 2020. Minute Order Granting Motion to 

Intervene (entered Oct. 28, 2020). After waiting for years to file its administrative complaint and 

then filing suit in this Court nearly as quickly as the law allowed it to, Plaintiff apparently was still

not ready to litigate this matter. Plaintiff repeatedly moved to stay the action, a request DefendantIntervenors joined. ECF Nos. 14, 15. This Court granted the motions to stay, and the case was 

subsequently stayed for a total of 180 days. See Minute Orders of Nov. 30, 2020 and Mar. 30, 

2021. On July 20, 2021, the Court entered default against the FEC since it has not entered an 

appearance or otherwise participated in this case. ECF No. 19. 

Now that the stay has been lifted, and because Plaintiff’s complaint is deficient in several

ways, Defendant-Intervenors move for judgment on the pleadings. 

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STANDARD OF REVIEW

After the close of pleadings, when a complaint fails to plead facts sufficient “to state a 

claim for relief that is plausible on its face,” it should be dismissed under Rule 12(c) of the Federal 

Rules of Civil Procedure. Qi v. F.D.I.C., 755 F. Supp. 2d 195, 199 (D.D.C. 2010) (quoting Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009)). The analysis of a Rule 12(c) motion is essentially the same as 

that for a motion to dismiss under Rule 12(b)(1) for lack of jurisdiction and 12(b)(6) for failure to 

state a claim upon which relief can be granted. Smallwood v. United States Dep’t of Just., 266 F. 

Supp. 3d 217, 219 (D.D.C. 2017); Plain v. AT & T Corp., 424 F. Supp. 2d 11, 20 n. 11 (D.D.C.

2006). 

When evaluating a motion to dismiss for lack of subject-matter jurisdiction under Federal 

Rule of Civil Procedure 12(b)(1), courts must “assume the truth of all material factual allegations 

in the complaint,” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up), 

but courts need not accept inferences unsupported by factual allegations or legal conclusions, see, 

e.g., Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Federal courts are courts of limited 

jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). To 

defeat a 12(b)(1) motion, a plaintiff must show “by a preponderance of the evidence that the Court 

has subject matter jurisdiction[.]” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 

172, 176 (D.D.C. 2004). Additionally, the Court “may consider materials outside the pleadings in 

deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., 

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation omitted).

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must include “enough 

facts to state a claim to relief that is plausible on its face.” Bell Atl. v. Twombly, 550 U.S. 544, 570 

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(2007). Facts not alleged cannot be assumed. Id. at 563 n.8. Allegations must amount to “more 

than labels and conclusions.” Id. at 555. “[F]ormulaic recitation of the elements of a cause of action 

will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 

Judged against these standards, Defendant-Intervenors’ motion for judgment on the 

pleadings should be granted. 

ARGUMENT

I. Plaintiff lacks standing. 

Plaintiff has failed to adequately allege that the FEC’s failure to take public action on its 

administrative complaint thus far has caused it injury. For some of its allegations, Plaintiff has not 

suffered a suffered a legally cognizable informational injury because it seeks a legal determination 

and to have the law enforced to its liking, rather than the disclosure of FECA-required information. 

For others, the information Plaintiff claims to lack is already available to it. But even if Plaintiff 

could somehow show that it would obtain new information as a result of a favorable ruling,

Plaintiff has failed to show that it has suffered a concrete, tangible harm as a result of lacking such 

information. Plaintiff vaguely alleges that it uses information to educate the public “so that the 

public may fully evaluate candidates for public office,” ECF No. 1, Compl. at ¶ 12, but never 

explains how that activity has been impaired by the information it claims to lack. Furthermore, the 

subject of Plaintiff’s complaint—the 2016 election—is long behind us; the candidate Plaintiff 

seeks information is about (Secretary Clinton) is not running for public office now or in the future; 

and at least two of the organizations about which Plaintiff complains are now dormant or defunct.

It is hard to imagine how the information Plaintiff seeks could be useful in educating the public in 

the present moment. And the Complaint is certainly bereft of any such facts.

Finally, Plaintiff cannot plausibly allege that its claimed informational injury has been 

caused by the FEC’s delay. Plaintiff did not bother to file the administrative complaint until nearly 

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four years after the conduct it challenges occurred, right before the statute of limitations expires 

on its claims. ECF No. 1-1, Admin. Compl.; see also CREW 2017, 236 F. Supp. 3d at 392. If 

Plaintiff has suffered any injury—and Defendant-Intervenors contend it has not—the injury was 

caused by Plaintiff’s own delay and not by the FEC. Plaintiff apparently did not need the

information it now seeks in the four years it waited to file a complaint with the FEC; it cannot now 

plausibly claim that the FEC’s failure to act on its proposed timeline is the cause of its injury. 

A. Plaintiff is required to establish Article III standing. 

Standing is “an essential and unchanging part of the case-or-controversy requirement of 

Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). That is because federal 

courts may only decide “actual ongoing controversies.” 21st Century Telesis Joint Venture v. FCC, 

318 F.3d 192, 198 (D.C. Cir. 2003) (cleaned up). Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 

2015). Indeed, while “[a]ny person” who believes that FECA was violated may file an 

administrative complaint with the FEC, 52 U.S.C. § 30109(a)(1), as Plaintiff has done, only those 

who otherwise satisfy Article III may seek judicial review of the FEC actions under 

§ 30109(a)(8)(A). See Common Cause v. FEC, 108 F.3d at 419. Thus, although § 30109(a)(8)(A) 

confers a right to sue, it does not confer standing. See Campaign Legal Ctr PAC. v. FEC, No. 18-

CV-0053 (TSC), 2020 WL 2735590, at *2 (D.D.C. May 26, 2020) (interpreting Common Cause’s 

recognition that § 30109 does not confer standing to cases involving challenges to the 

Commission’s inaction); Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 48 (D.D.C. 2003) 

(same). 

To establish standing, a plaintiff must show (1) a concrete, particularized, and actual or 

imminent injury in fact that is (2) fairly traceable to the Defendant’s challenged action and (3) 

likely to be redressed by a favorable decision. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), 

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Inc., 528 U.S. 167, 180–81 (2000). The D.C. Circuit has cautioned that in cases like this one, where 

plaintiff’s “asserted injury arises from the government’s allegedly unlawful regulation (or lack of 

regulation) of someone else,” standing is “substantially more difficult” to prove. Common Cause

v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (quoting Lujan, 504 U.S. at 562). Further, a “deficiency 

on any one of the three prongs suffices to defeat standing.” Citizens for Responsibility & Ethics in 

Washington v. FEC, 799 F. Supp. 2d 78, 85 (D.D.C. 2011) (CREW 2011) (quoting U.S. Ecology, 

Inc. v. U.S. Dept. of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)). To survive a motion for judgment 

on the pleadings, Plaintiff must plausibly allege facts showing by a preponderance of the evidence 

that this Court has subject matter jurisdiction. Smallwood, 266 F. Supp. 3d at 219. As discussed 

below, Plaintiff’s allegations are not enough. 

B. Plaintiff has not suffered a legally cognizable informational injury.

A plaintiff can only claim an informational injury sufficient for standing in limited 

circumstances. To assert an informational injury, a plaintiff must allege that it is “directly deprived 

of information that must be disclosed under a statute.” CREW v. U.S. Dep’t of the Treasury, IRS, 

21 F. Supp. 3d 25, 32 (D.D.C. 2014); ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) 

(“For purposes of informational standing, a plaintiff ‘is injured-in-fact . . . because he did not get 

what the statute entitled him to receive.’”) (quoting Zivotofsky v. Sec’y of State, 444 F.3d 614, 618 

(D.C. Cir. 2006)). But not just any information will do: “[n]ot every unrequited demand for 

information from the FEC is sufficient to establish Article III standing.” Free Speech for People 

v. FEC, 442 F. Supp. 3d 335, 342 (D.D.C. 2020). When evaluating whether a complainant has 

suffered an informational injury sufficient to confer standing to seek judicial review under 52 

U.S.C. § 30109(a)(8), “the nature of the information allegedly withheld is critical to the [court’s] 

standing analysis.” Common Cause, 108 F.3d at 417. If the information allegedly withheld is 

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already available to plaintiffs or is information as to whether a violation of the law has occurred, 

then plaintiffs have not suffered an injury in fact sufficient to confer standing. Id.

In this case, Plaintiff vaguely alleges that it lacks information about three issues: (1) alleged 

in-kind contributions made by MMFA to CTR PAC, AB PAC, HFA; (2) alleged in-kind 

contributions made by AB Foundation to AB PAC and alleged misreporting of AB Foundation 

activity; and (3) CTR PAC’s and AB PAC’s alleged unreported in-kind contributions to HFA. 

Compl. ¶ 7. Plaintiff never states what specific information or types of documents it seeks. For the 

reasons discussed below, none of Plaintiff’s allegations meet the standard required to show 

informational injury.

1. Plaintiff’s administrative complaint seeks legal determinations—not

new factual information—about the in-kind contributions allegedly 

made by CTR PAC. 

Courts have repeatedly held that a plaintiff does not suffer an injury in fact to establish 

standing if it merely seeks a legal determination based on factual information that is already 

publicly available. See Wertheimer v. FEC, 268 F.3d 1070, 1074–75 (D.C. Cir. 2001) 

(no informational standing to pursue a legal determination that expenditures were “coordinated” 

when all relevant expenditures had been publicly disclosed); Vroom v. FEC, 951 F. Supp. 2d 175, 

178–79 (D.D.C. 2013) (no informational standing to pursue legal determination that publicly 

reported expenditures exceeded applicable limitations); CREW 2011, 799 F. Supp. 2d at 88–89 (no 

informational standing to pursue legal determination that publicly reported expenditures were “inkind contributions”). 

In other words, a plaintiff has no legally cognizable interest in learning solely “whether a 

violation of the law has occurred,” Common Cause, 108 F.3d at 418, or in having the FEC “get the 

bad guys,” Nader v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013) (internal quotation marks omitted). 

See also Common Cause, 108 F.3d at 418 (“Nothing in FECA requires that information concerning 

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a violation of the Act as such be disclosed to the public. Indeed, even if FECA did require such 

disclosure, we doubt whether this requirement could create standing. To hold that a plaintiff can 

establish injury in fact merely by alleging that he has been deprived of the knowledge as to whether 

a violation of the law has occurred would be tantamount to recognizing a justiciable interest in the 

enforcement of the law. This we cannot do.”). 

Plaintiff’s Complaint makes the vague allegation that it lacks information about “Correct 

the Record PAC’s and American Bridge 21st Century PAC’s unreported in-kind contributions to 

Hillary for America.” Compl. ¶ 7. Plaintiff’s administrative complaint is slightly more specific in 

that it alleges that CTR PAC openly coordinated its activity with HFA, and as such, expenditures

unrelated to online communications that were made by CTR PAC during the 2016 election were 

in-kind contributions to HFA. ECF No. 1-1 Admin. Compl. at 14.

The information Plaintiff claims to seek is very similar to the information sought by 

Campaign Legal Center and its Senior Director, Policy & Strategic Partnerships Catherine 

Hinckley Kelley (hereinafter, collectively, “CLC”), in a complaint filed against the FEC in 2019, 

which alleged that the FEC’s dismissal of their 2016 administrative complaint was contrary to law. 

See CLC v. FEC, 507 F. Supp. 3d 79, 82 (D.D.C. 2020). In that case, CLC alleged that it knew 

CTR PAC and HFA coordinated their activities, but it suffered an informational injury because it 

lacked information about the specific amount of “input costs” (such as costs for production, staff, 

travel, and overhead) that were related to the creation of unpaid online communications sponsored 

by CTR PAC and coordinated with HFA. Id. at 88; see also supra pp. 4-5. Those “input costs,” 

CLC contended, would not be exempt from the definition of “coordinated communication” and 

would instead be treated as prohibited in-kind contributions. 

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The district court closely examined CLC’s allegations and concluded that the information 

allegedly sought by CLC was already publicly available in CTR PAC’s disclosure reports filed 

with the FEC, and that what CLC really sought was a finding by the FEC that CTR PAC’s 

expenditures were “coordinated” with HFA as a matter of law and should be treated as in-kind 

contributions. Id. at 90. Importantly, the court held that even if it adopted CLC’s view of the law—

that input costs for online communications should be treated as non-exempt coordinated 

expenditures—no new factual information would be revealed. Two changes would occur: (1) 

expenses that are currently reported on Line 21 of CTR PAC’s FEC reports as “operating 

expenditures” would be moved to Line 23 and reported as “in-kind contributions”; and (2) HFA 

would duplicatively report these same expenses on its own reports. The D.C. Circuit has explicitly 

rejected legal characterizations and duplicative reporting as a basis for informational standing in 

Wertheimer v. FEC, noting that the plaintiffs “d[id] not really seek additional facts but only the 

legal determination that certain transactions constitute coordinated expenditures,” and so would 

simply obtain “the same information from a different source.” 268 F.3d 1070 (D.C. Cir. 2001). 

See also Vroom v. FEC, 951 F. Supp. 2d 175, 178–79 (D.D.C. 2013) (no informational standing 

to pursue legal determination that publicly reported expenditures exceeded applicable limitations). 

Accordingly, the district court granted summary judgment in favor of the intervening defendants. 

Campaign Legal Ctr., 507 F. Supp. 3d at 91 (appeal filed on April 7, 2021, No. 21-5081).

So too here. This case is slightly different because Plaintiff does not claim informational 

injury based on expenditures associated with exempt online communications. Indeed, Plaintiff 

states in its administrative complaint that “[a]ny services that CTR PAC provided to the Clinton 

campaign that are not related to exempt communications are reportable in-kind contributions that 

must comply with the limits and prohibitions of the Act.” ECF No. 1-1, Admin. Compl. at 15. But 

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just as CTR PAC and HFA explained in their responses to CLC’s complaint, expenditures made 

by CTR PAC that were unrelated to exempt online communications were either not coordinated 

under FEC rules, or HFA paid CTR PAC for the fair market value of the services, and those 

payments have already been publicly reported. Correct the Record Financial Summary, FEC, 

available at https://www.fec.gov/data/committee/C00578997/ (last visited July 20, 2021).

Plaintiff’s Complaint does not allege any facts to the contrary. Accordingly, there is no new factual 

information for Plaintiff to learn, and Plaintiff does not have standing to find out whether CTR 

PAC and HFA coordinated their activity in violation of the law, unless such a finding would lead 

to additional factual information. See Wertheimer, 268 F.3d at 1075. This is fatal to Plaintiff’s 

claim of informational injury. 

At bottom, Plaintiff in this case makes similar failed allegations of informational injury 

that another district court in this Circuit has already roundly rejected. Campaign Legal Ctr., 507 

F. Supp. 3d at 84-91. The only additional factual difference is that here, Plaintiff claims to lack 

information about alleged in-kind contributions made by AB PAC to HFA (in addition to those 

allegedly made by CTR PAC). ECF No. 1, Compl. at ¶ 7. But like CTR PAC, AB PAC has reported 

all its contributions and expenditures, including independent expenditures, on disclosure reports 

that are filed with the FEC and publicly available on the FEC’s website. See AB PAC Financial 

Summary, FEC, available at https://www.fec.gov/data/committee/C00492140/ (last visited July 

20, 2021). Plaintiff seeks only a legal finding of coordination between AB PAC and HFA that

would reveal no new factual information. Such a legal finding would merely result in the 

reclassification of certain already-disclosed independent expenditures as impermissible in-kind 

contributions, and carry law enforcement consequences. This is insufficient to allege an 

informational injury. 

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2. Plaintiff fails to allege any facts to support its claim that MMFA made 

in-kind contributions to CTR PAC, AB PAC, or HFA. 

Plaintiff also alleges that it lacks information about unreported or unlawful in-kind 

contributions made by MMFA to CTR PAC, AB PAC, and HFA. Compl. ¶ 7. But Plaintiff’s 

Complaint does not provide a single fact to support the assertion that MMFA made in-kind 

contributions to other Defendant-Intervenors. See ECF No. 10-2, Admin. Response. And there are 

certainly no facts presented to rebut Defendant-Intervenors’ assertion that any services provided 

by MMFA were for exempt online communications, and thus are not in-kind contributions as a 

matter of law. Indeed, as “proof” that MMFA coordinated its activities with HFA, Plaintiff’s 

administrative complaint cites to a blog post published on MMFA’s own website the day after the 

email was sent. Of course, unpaid online communications like that blog post are exempt from the 

definition of “public communication” and thus do not meet the three-part coordination test to be 

treated as a coordinated expenditure or in-kind contribution. 

Courts have held that allegations of informational injury that are based on speculation—

like those made by Plaintiff—cannot support standing. See, e.g., Friends of Animals v. Jewell, 115 

F. Supp. 3d 107, 117 (D.D.C. 2015), aff'd, 828 F.3d 989 (D.C. Cir. 2016) (rejecting an 

informational injury that relied on a speculative antecedent occurrence because “it would be 

exceedingly odd to pluck a new informational -injury rule from such a conjectural, hypothetical 

ground.”) (cleaned up); Wertheimer, 268 F.3d at 1074-75 (D.C. Cir. 2001) (denying an 

informational injury claim when it was merely “conceivable” that the relief the plaintiffs sought 

“might lead to additional factual information”). This court should similarly reject Plaintiff’s claim. 

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3. Plaintiff claims to lack information about payments made by AB 

Foundation to AB PAC, but that information is already publicly 

available. 

Plaintiff’s Complaint states that “insofar as the amounts paid to American Bridge 21st 

Century PAC by American Bridge 21st Century Foundation were estimates rather than actual 

costs, the amounts reported to the FEC by American Bridge 21st Century PAC were inaccurate 

and do not accurately disclose the financial activity or financial relationship between the two 

entities.” ECF No. 1, Compl. at ¶ 23. Accordingly, Plaintiff alleges that it “lacks information about 

whether American Bridge 21st Century PAC accurately reported payments received from 

American Bridge 21st Century Foundation. Id. at ¶ 7. But Plaintiff does not provide any facts that 

support its allegation that the reported budget estimates did not accurately reflect actual costs.

Based on nothing, Plaintiff merely speculates that the budget estimates might not reflect actual 

costs, and then vaguely alleges that it lacks information on that basis. This type of speculation is 

insufficient to meet the standard for alleging a specific, concrete informational injury. See Friends 

of Animals, 115 F. Supp. 3d at 117. 

To the contrary, the actual facts confirm that AB Foundation has already publicly reported 

the information Plaintiff claims to seek. As Plaintiff itself acknowledges, at the end of each fiscal 

year, AB Foundation reported the payments it made to AB PAC as well as the outstanding funds 

that were owed to AB PAC. That information is listed on AB Foundation’s Form 990 tax returns, 

which are publicly available on the IRS website. Audits performed by AB Foundation’s 

accountants are also publicly available on the New York State Charities Bureau website. For 

example, the Foundation’s 2016 annual filing includes an audit performed by AB Foundation’s 

accountants and filed in 2018, stating, “[d]uring the year ended December 31, 2016, the 

Foundation transferred $720,000 to American Bridge for salary, rent and other expenses allocated 

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to it. As of December 31, 2016, the Foundation owed American Bridge $1,005, 603.” Charities 

NYS Database Results for American Bridge 21st Century Foundation, New York State Attorney 

General, https://www.charitiesnys.com/RegistrySearch/show_details.jsp?id=%7bE9A8A6BFA2FC-4C2C-8958-92C5FBA6A18A%7d (last visited July 21, 2021). The audit was performed 

after the Foundation’s 2016 fiscal year ended, and it reflected actual numbers. Plaintiff is obviously 

free to allege that the amounts owed by AB Foundation to AB PAC constitute unreported in-kind 

contributions, but such an allegation would not supply Plaintiff with an informational injury 

because the amounts owed (and thus the value of the in-kind contributions) are already publicly 

available.

Courts regularly find that when, as here, the information being sought by a plaintiff is 

publicly available, there is no informational injury. In Free Speech for People, for example, the 

court concluded that the plaintiff suffered no informational injury when “the relevant facts [were]

already available” from public sources. 442 F. Supp. 3d at 343-44 (cleaned up). That case is no 

anomaly. See CREW 2011 at 89. In Citizens for Responsibility, the court concluded that the 

plaintiffs lacked a cognizable informational injury because they failed to “allege any specific 

factual information . . . that was not already publicly available.” Id. (cleaned up). The same logic 

applies to this case. AB Foundation has already publicly reported the amounts paid and owed to 

AB PAC. Plaintiff has provided no reason to believe those budget estimates are inaccurate. To 

carry its burden of demonstrating an informational injury by a preponderance of the evidence, 

Biton, 310 F. Supp. 2d at 176, Plaintiff must do more than make bare, unsupported allegations.

4. Plaintiff has failed to show how the alleged lack of information has 

caused it any concrete harm. 

The second prong of the informational injury test turns the Court’s attention to the 

relationship between the Plaintiff’s asserted informational injury and “type of harm Congress 

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21

sought to prevent by requiring disclosure.” Elec. Privacy Info. Ctr. v. Presidential Advisory 

Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017); Friends of Animals, 828 F.3d 

at 992. This test scrutinizes whether the plaintiff has demonstrated that the information it allegedly 

lacks causes the types of consequential harm that Congress sought to redress in FECA by allowing 

a private party to sue the FEC for unlawfully failing to act on its administrative complaint. The 

harm suffered must be “particularized” as well as “concrete.” Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560 (1992) (internal quotation marks and citation omitted). “[P]articularized” means that “the 

injury must affect the plaintiff in a personal and individual way.” Id. at 560 n.1.

In this case, Plaintiff makes vague allegations about the type of work it does—filing FEC 

complaints and educating the public—but never once alleges with any particularity how lacking 

the specific information described in its Complaint has harmed those activities. Plaintiff has thus 

failed to meet its burden. See Ctr. for Biological Diversity v. Bernhardt, 442 F. Supp. 3d 97, 109-

111 (D.D.C. 2020), aff'd sub nom. Ctr. for Biological Diversity v. Haaland, 849 F. App'x 2 (D.C. 

Cir. 2021) (rejecting informational injury because the complaint failed to allege facts 

demonstrating how the information sought would help the plaintiff).

Plaintiff has likely failed to tie its alleged injury to its activities because it has not suffered 

any concrete harm. Even if Plaintiff would somehow learn new factual information if it obtained 

a favorable ruling in this case, there are significant reasons to doubt that such information would 

actually help Plaintiff’s activities. The D.C. Circuit has explained that plaintiffs only allege an 

informational injury where there is “no reason to doubt” that the statutorily required information 

they claim to seek would help them. Friends of Animals v. Jewell, 824 F.3d 1033, 1040–41 (D.C. 

Cir. 2016). Here, Plaintiff appears to claim that it would use the information to help educate the 

public so that the public may fully evaluate candidates for public office. ECF No. 1, Compl. at

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¶ 12 (Plaintiff “uses public disclosure reports that are required to be filed with the FEC to educate 

the public about campaign spending and the true sources and scope of the candidates’ financial 

support so that the public may fully evaluate candidates for public office.”) (emphasis added). But 

nearly all the information Plaintiff seeks relates to the 2016 presidential election and Secretary 

Clinton, who neither holds a public office nor has plans to run for elected office in the future. It is 

far from clear how the information Plaintiff claims to seek in this lawsuit would be helpful in 

efforts to educate the public about candidates for public office, and Plaintiff’s Complaint certainly 

does not allege facts stating that it would. Furthermore, at least two of the organizations at issue in 

Plaintiff’s administrative complaint are either dormant or defunct now, so there is no need to 

educate the public about their activities. As Plaintiff itself acknowledges, CTR PAC has been 

dormant since the 2016 election, and it filed a request for termination with the FEC nearly two 

years ago in December 2019. ECF No. 1-1, Admin. Compl. at n. 1. And HFA, Secretary Clinton’s 

principal campaign committee for her 2016 presidential race, has long been inactive. 

Finally, to the extent that Plaintiff complains that lack of disclosure thwarts its ability to 

use FEC reports to file FEC complaints requesting that enforcement actions be taken against 

individuals and organizations that violate federal campaign finance laws, id. at ¶ 13, it has already 

filed an FEC complaint in this case. Plaintiff cannot plausibly contend that the alleged failure to 

disclose certain information in this case has hampered its ability to file an FEC complaint; indeed, 

the exact opposite is true. 

C. Plaintiff’s alleged injury was not caused by the FEC’s delay. 

The second prong of the standing inquiry requires the plaintiff to show that its alleged 

injury is “fairly traceable to the Defendant’s challenged action.” Friends of the Earth, 528 U.S. at 

180–81. In this case, Plaintiff challenges the FEC’s delay in taking public action on its complaint. 

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However, as discussed in detail infra Section II-A, Plaintiff’s injury was caused by its own delay, 

not the FEC’s. Plaintiff waited nearly four years to even file an administrative complaint with the 

FEC. If the information Plaintiff claims to lack was important to the mission and activities of the 

organization, then presumably Plaintiff would have prioritized filing an FEC complaint earlier. 

Plaintiff cannot now complain that delay on the part of the FEC, a resource-strapped agency that 

has gained and lost quorum since Plaintiff filed its complaint, is the cause of Plaintiff’s injury. 

D. Plaintiff lacks organizational standing because no discrete programmatic 

activity will be imminently and adversely affected by the FEC’s delay. 

TPF’s attempt to plead an organizational injury fares no better. Standing requirements 

apply with no less force to organizational plaintiffs. Havens Realty Corp. v. Coleman, 455 U.S. 

363, 378 (1982). An organizational plaintiff may have standing to sue on its own behalf “to 

vindicate whatever rights and immunities the association itself may enjoy” or, under proper 

conditions, to sue on behalf of its members asserting the members’ individual rights. Warth v. 

Seldin, 422 U.S. 490, 511 (1975). 

In cases where an organization is suing on its own behalf, such as here, the organization

must point to a discrete programmatic concern and plausibly demonstrate how the challenged 

conduct will imminently and adversely affect it. Organizational standing requires “concrete and 

demonstrable injury,” to “discrete programmatic concerns,” accompanied by a “consequent drain 

on the organization’s resources.” National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 

1433 (D.C. Cir.1995) (cleaned up). A simple “setback to the organization’s abstract social 

interests” will not suffice. Id. The implicated interest must be concrete. See id. at 1431, 1433 

(finding the plaintiff’s interest in “its substantial practical efforts to assist taxpayers and to promote 

sound, lawful, and fair revenue practices by the United States government” to be “the type of 

abstract concern that does not impart standing”). And the adverse effect must be tangible. See id.

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(finding an allegation that the challenged conduct “frustrated” an organization’s objectives 

insufficient to establish standing). The adverse effect must also be at least imminent. Fla. Audubon 

Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996). TPF fails to satisfy organizational standing in 

three ways: (1) it fails to point to a discrete programmatic interest; (2) it fails to show a tangible 

adverse effect on that interest; and (3) it cannot plausibly allege that any adverse effect on its 

programmatic interest is imminent. 

First, TPF’s programmatic activities are not directly or adversely affected by the FEC’s 

failure to take public action in this case thus far. TPF describes itself as a “watchdog” organization 

that “educate[s] the public about campaign spending and the true sources and scope of candidates’ 

financial support.” ECF No. 1, Compl. at ¶ 11–12. It also files complaints with the FEC “requesting 

that enforcement actions be taken against individuals and organizations that violate federal 

campaign finance law.” Id. ¶ 13. TPF further alleges that due to the FEC’s delay in acting on the 

administrative complaint, it “is being deprived of full disclosure” about “the activities undertaken 

by,” and “the nature of the ongoing relationships among,” Defendant-Intervenors. Id. ¶ 43. But 

TPF fails to plausibly allege that the FEC’s delay in acting on the administrative complaint has 

impeded its ability to engage in any of those activities. In fact, TPF has not described in any way

how its day-to-day activities over the past four years have been obstructed, let alone how they are 

being obstructed today. And to the extent Plaintiff claims the FEC’s delay has deprived the public 

of information, the Supreme Court has “consistently held that a plaintiff raising only a generally 

available grievance about government—claiming only harm to his and every citizen’s interest in 

proper application of the Constitution and laws, and seeking relief that no more directly and 

tangibly benefits him than it does the public at large—does not state an Article III case or 

controversy.” Lujan, 504 U.S. at 573–74.

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Second, TPF’s diversion-of-resources allegation does not amount to an injury sufficient to 

confer standing. TPF asserts that when “incomplete, inadequate, or inaccurate” public disclosure 

reports are filed with the FEC, it “must divert resources and funds from other organizational

operations” in order “to file an administrative complaint in the hopes of rectifying the situation.” 

ECF No. 1, Compl.at ¶ 14. But TPF also alleges that as part of its general activities, it “files FEC 

complaints requesting that enforcement actions be taken against individuals and organizations that 

violate federal campaign finance law”—including by violating FECA’s public disclosure and 

reporting requirements. Id. ¶¶ 3, 13. Thus, TPF can hardly claim it has “diverted” its resources by 

filing the administrative complaint; rather, it has merely dedicated resources to an activity in which 

it is typically engaged. This is not an injury in fact sufficient to confer standing. See National 

Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995) (explaining that an 

organization “cannot convert its ordinary program costs into an injury in fact”); Blunt v. Lower 

Merion Sch. Dist., 767 F.3d 247, 286 (3d Cir. 2014) (denying standing where additional 

expenditures were “consistent with [the organization’s] typical activities”); See Envtl. Working 

Grp. v. U.S. Food & Drug Admin., 301 F. Supp. 3d 165, 171 (D.D.C. 2018) (“[A]n organization 

does not suffer an injury in fact where it ‘expend[s] resources to educate its members and others’ 

unless doing so subjects the organization to ‘operational costs beyond those normally expended.’”) 

(internal citation omitted). The activities to which Plaintiff could claim to have diverted resources 

are actually part and parcel of its mission and routine activities. If anything, the FEC’s decision to 

delay has provided Plaintiff with an avenue to perform its routine work.2

 2 Similarly, TPF is not injured because it has expended resources bringing this litigation. See, e.g., 

Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (“An organization cannot, of course, 

manufacture the injury necessary to maintain a suit from its expenditure of resources on that very 

suit.”).

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Third, TPF’s delay in filing the administrative complaint thwarts any plausible allegation 

of imminent organizational injury. TPF waited nearly four years to file its administrative complaint 

against Defendant-Intervenors. The factual allegations underlying TPF’s claims occurred largely 

in 2016 and 2017. See ECF No. 1-1, Admin. Compl., at 3–8. But TPF waited to file an 

administrative complaint until April 8, 2020. See ECF No. 1, Compl. at ¶ 3. It is implausible that

additional delay by the FEC will imminently “obstruct[] TPF’s ability to carry out” the activities 

Plaintiff describes in the administrative complaint. Id. ¶ 14; Iqbal, 556 U.S. at 679 (“Determining 

whether a complaint states a plausible claim for relief” is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”). Were it otherwise, 

Plaintiff would have filed the administrative complaint sooner. Because Plaintiff waited several 

years to file its administrative complaint, it cannot now plausibly allege that further delay by the 

agency has caused an injury in fact to its organizational activities, let alone an imminent one. 

Plaintiff lacks organizational standing to bring this case.

II. TPF has not pled facts sufficient to allege that the FEC’s delay is contrary to law.

TPF’s Complaint does not plead facts sufficient to support the allegation that the FEC’s 

failure to publicly act on its administrative complaint is contrary to law. In order to make such a 

showing, TPF must allege facts sufficient to show that the failure to take public action is “arbitrary 

and capricious,” which is a standard that is highly deferential to administrative agencies like the 

FEC and necessarily tied to the specific facts of each case. See Common Cause, 489 F. Supp. at

744. Here, the Complaint provides no specific facts; instead, it contains a single conclusory 

statement which amounts to no more than a “[t]hreadbare recital[] of the elements of a cause of 

action,” Iqbal, 556 U.S. at 678: “[t]he FEC’s failure to act on TPF’s administrative complaint is 

contrary to law under 52 U.S.C. § 30109(a)(8)(A).” ECF No. 1, Compl. at ¶ 40. Plaintiff never 

once alleges any facts demonstrating that the FEC’s delay—and not its own decision to file the 

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administrative complaint four years after the alleged illegal conduct occurred—is the cause of 

Plaintiff’s harm. 

To state a plausible claim for relief, the Complaint must allege facts demonstrating that the 

FEC’s failure to act rises to the level of arbitrary and capricious conduct that it is contrary to law. 

Common Cause, 489 F. Supp. at 744. When determining whether agency inaction is contrary to 

law, courts may consider the following factors: (1) the resources and information available to the 

agency; (2) the credibility of the allegations made in the administrative complaint, (3) the nature 

of the threat posed, and (4) the novelty of the issues involved. See, e.g., id.; see also In re Nat. 

Cong. Club, No. 84-5701, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984) (approving the factors 

considered in Common Cause). District courts in the District of Columbia also consider the six 

principles enumerated by the D.C. Circuit in Telecommunications Research & Action Center 

(“TRAC”) v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984), which are: (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. Id.

The Complaint fails to allege that any of these factors are satisfied. As discussed in greater 

detail below, the Common Cause factors and the TRAC principles simply do not support Plaintiff’s 

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allegation of arbitrary and capricious delay by the FEC. It is thus hardly surprising that the Plaintiff 

has failed to state a claim under FECA. 

A. TPF has not been prejudiced by the FEC’s delay when it waited four years 

before filing the administrative complaint (the fifth TRAC principle).

In deciding whether an agency’s failure to take public action is arbitrary and capricious, 

courts consider the fifth TRAC principle, which is “the nature and extent of the interests prejudiced 

by delay...” Pub. Citizen Health Rsch. Grp. v. Comm’r, Food & Drug Admin., 740 F.2d 21, 35 

(D.C. Cir. 1984). To wit, courts consider whether a plaintiff has provided “real evidence of any 

injury resulting from the delay.” Stockman v. FEC, 944 F. Supp. 518, 524 (E.D. Tex. 1996), aff’d 

as modified, 138 F.3d 144 (5th Cir. 1998). As part of the calculus, courts consider whether the 

plaintiff’s conduct has contributed to the agency delay. In Common Cause, for example, the court 

noted that the plaintiff waited two years before seeking judicial review, specifically stating that the 

FEC was not “solely responsible for the time consumed by its investigation,” and that the plaintiff 

did not promptly put the case in a posture for the court to resolve it. 489 F. Supp. at 744. With 

those facts in mind, despite the credibility of the allegations made in the plaintiff’s administrative 

complaint, and the FEC’s “exceedingly slow pace” in investigating them, the court concluded that 

the FEC’s inaction was not contrary to law. Id. at 745. Likewise, in Stockman v. FEC, the court 

considered the plaintiff’s actions within the scope of the administrative and court proceedings—

which included repeatedly asking for extensions of time in which to file documents—and found 

that such conduct undermined the plaintiff’s claim of prejudice. 138 F.3d at 523.

In this case, TPF has failed to plead that the FEC’s delay has prejudiced its interests in any 

way. See ECF No. 1, Compl. The Complaint merely states that “[m]ore than 120 days have passed 

since Plaintiff filed its administrative complaint, and the FEC has taken no action on the 

complaint.” ECF No. 1, Compl. at ¶ 6. Plaintiff’s lack of basis for its claim is again not surprising 

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because there is no argument that the FEC’s delay is the cause of any prejudice to Plaintiff. As 

stated, TPF waited to file an administrative complaint until four years after the allegedly illegal 

conduct took place. And then, after filing this lawsuit to challenge the FEC’s delay in adjudicating 

its administrative complaint a mere 127 days after filing with the agency, TPF requested (and 

Defendant-Intervenors agreed to join their request) that the Court stay this case for an additional 

180 days. See ECF Nos. 14, 15. Neither TPF’s allegations—nor its conduct when filing the 

administrative complaint or after filing this lawsuit—demonstrate any concern for the swift 

resolution of its claims. Plaintiff has failed to allege any prejudice to its interests that would rise 

to level of arbitrary and capricious inaction by the FEC. Plaintiff’s Complaint should be dismissed. 

B. The FEC lacked a quorum for the majority of the time the administrative 

complaint has been pending, and since regaining quorum, it has appropriately 

prioritized more recent matters (the first Common Cause factor and the fourth 

TRAC principle). 

Another factor courts consider when weighing whether an agency’s delay is arbitrary or 

capricious is what resources the agency has available to it to adjudicate the complaint at issue. 

Common Cause, 489 F. Supp. at 744. At the same time, courts consider the effect of expediting 

delayed action on agency activities of a higher or competing priority, and they afford agencies 

deference when prioritizing their docket. TRAC, 750 F.2d at 80. Courts recognize that “[i]t is not 

for the judiciary to ride roughshod over agency procedures or sit as a board of superintendance[sic]

directing where limited agency resources will be devoted.” Rose, 806 F.2d at 1091 (“We are not 

here to run the agencies.”). Because the FEC is “primarily and substantially responsible for 

administering and enforcing FECA,” it is “precisely the type of agency to which deference should 

presumptively be afforded.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 

(1981) (cleaned up). 

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The FEC has had little to no resources available to adjudicate TPF’s complaint for most of 

the time it has been pending. This fact is conveniently absent from TPF’s complaint, and yet, it 

weighs significantly in favor of dismissal. Indeed, courts have also recognized that periods when 

the FEC lacks a quorum impact the agency’s ability to address administrative complaints in the 

normal course, and for that reason, have previously declined to interfere with the FEC’s process 

when it lacked quorum. See Democratic Nat. Comm. v. FEC, 552 F. Supp. 2d 20, 23 (D.D.C. May 

14, 2008). 

TPF filed its administrative complaint on April 8, 2020, four years after the allegedly illegal 

conduct had occurred, and in the middle of the highly contentious 2020 presidential election. ECF 

No. 1-1, Admin. Compl. As TPF well knew when it filed its complaint, the FEC lacked a quorum, 

and had been without a quorum for nearly a year, since August 2019.3 Without a quorum, the 

FEC’s hands were tied and it could not act on TPF’s administrative complaint. See 52 U.S.C. 

§ 30109(a)(2) (requiring an affirmative vote of four of more Commissioners to initiate an 

investigation). The FEC regained quorum briefly on June 25, 2020 only to lose it again a week 

later on July 3, 2020.4 The FEC did not regain quorum again until the Senate voted to confirm 

three new commissioners, Sean Cooksey, Allen Dickerson, and Shana Broussard, on December 

 3 See FEC, “Matthew Petersen to depart Federal Election Commission,” available at 

https://www.fec.gov/updates/matthew-petersen-depart-federal-election-commission/ (Aug. 26, 

2019) (noting that former Commissioner Matthew Petersen resigned in late August 2019).

4 See FEC, “James E. Trainor III sworn in as Commissioner,” available at 

https://www.fec.gov/updates/james-e-trainor-iii-sworn-commissioner/ (June 5, 2020) (noting that 

Quorum was restored when Trey Trainor III was sworn in as a Commissioner effective June 5, 

2020); FEC, “Caroline C. Hunter to depart Federal Election Commission,” available at 

https://www.fec.gov/updates/caroline-c-hunter-depart-federal-election-commission/ (June 26, 

2020) (Commissioner Caroline Hunter resigned effective July 3, 2020).

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10, 2020.5 Since TPF filed its administrative complaint, the FEC has only had quorum for seven 

and a half months—less than half the time TPF’s administrative complaint has been pending. 

Since the FEC regained quorum, it has been investigating and resolving administrative 

complaints again. But the FEC does not have unlimited resources even when it does have a 

quorum, and it is inappropriate for Plaintiffs to use this lawsuit to divest scarce FEC resources 

from matters of higher priority. The FEC’s decision to prioritize resolution of complaints that were 

filed before Plaintiff’s complaint, or concerning conduct that occurred more recently than TPF’s 

four-year-old claims, is not contrary to law. 

Because TPF filed the administrative complaint when the FEC lacked quorum and during 

an election year, the 120-day clock began running at a time when the FEC could do nothing but 

accumulate a significant backlog of cases. Now, the agency appears to be diligently working 

through that backlog, and for the most part, prioritizing matters concerning more recent conduct 

first.6 Compelling the FEC to prioritize claims related to the 2016 election would undercut the very 

deference that FECA—and the courts—afford to the agency. See, e.g., Common Cause v. FEC, 

842 F.2d 436, 450-51 (D.C. Cir. 1988) (“In 1988, an election year, the Commission has far more 

pressing matters to address than to formulate an ex post facto statement of reasons explaining a 

1980 dismissal.”). Even more detrimentally, it would grant political organizations carte blanche to 

 5 See FEC, “Statement of Commissioner Ellen L. Weintraub On the Senate’s Votes to Restore the 

Federal Election Commission to Full Strength,” available at https://www.fec.gov/resources/cmscontent/documents/2020-12-Quorum-Restoration-Statement.pdf (December 9, 2020).

6 See, e.g., FEC, “Weekly Digest, Week of June 21-25, 2021,” available at 

https://www.fec.gov/updates/week-of-june-21-25-2021/ (June 25, 2021) (describing the agency’s 

progress on multiple advisory opinions regarding on-going conduct, the agency’s resolution of 20 

matters related to conduct from the 2018 and 2020 elections); FEC, “Weekly Digest, Week of June 

28-July 2, 2021,” available at https://www.fec.gov/updates/week-of-june-28-july-2-2021/ (July 2, 

2020) (same); FEC, “Weekly Digest, Week of July 5-9, 2021,” available at 

https://www.fec.gov/updates/week-of-july-5-9-2021/ (July 9, 2021).

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redirect the FEC’s attention from imminently pressing matters to stale, baseless investigations of 

the organization’s ideological opponents. The Complaint provides no basis to conclude that the 

FEC’s delay in resolving TPF’s administrative complaint is “a product of anything other than 

excessive demands on a strapped federal agency.” Stockman 944 F. Supp. at 524.

C. The allegations in the administrative complaint are novel, speculative, 

unsupported by any evidence of a violation, and there is no urgent 

threat of recurrence (the second, third, and fourth Common Cause 

factors). 

When determining whether FEC delay is contrary to law, courts also consider the novelty 

of the issues involved, the credibility of the allegations made in the administrative complaint, and 

the nature of the threat posed. Common Cause, 489 F. Supp. at 744. In this case, the administrative 

complaint provides the FEC no reason to prioritize it over more recent and important matters. As 

stated in Defendant-Intervenors response to the administrative complaint, Plaintiff’s allegations 

are completely unsupported and suffer from a lack of factual evidence. ECF No. 10-2, Admin. 

Response. For example, as discussed above, Plaintiff complains that the payments made by AB 

Foundation to AB PAC for shared costs may be inaccurate without any reason to believe that is 

the case. ECF No. 1-1, Admin. Compl. at 5. Similarly, the administrative complaint alleges that 

AB PAC made prohibited in-kind contributions to other unnamed Democratic campaigns, but 

never so much as names which campaigns were the supposed recipients. Id. at 4. In sum, the 

administrative complaint makes barebones, conclusory allegations that are unsupported by facts. 

FEC regulations require that a valid complaint contain “a clear and concise recitation of . . . facts 

which describe a violation of a statute or regulation over which the Commission has jurisdiction. 

11 C.F.R. § 114.3(d)(3). In interpreting this provision, the Commission has held that it “may find 

‘reason to believe’ only if a complaint sets forth sufficient specific facts, which, if proven true, 

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33

would constitute a violation of the [Act].”7 Moreover, “unwarranted legal conclusions from 

asserted facts” and mere speculation will not be accepted as true.” Id. Plaintiff’s allegations fall 

woefully short of this standard. There is no urgent threat of reoccurrence because many of the 

organizations about which Plaintiff complains, including CTR PAC and HFA, are no longer active. 

There is no reason for the FEC to prioritize this matter over more recent, pressing matters. 

D. The Complaint does not allege that any of the other TRAC principles 

are satisfied. 

The Complaint fails to allege that any of the other TRAC principles are satisfied in this 

case, and any application of those principles makes it clear that they are not. See Stockman 944 F. 

Supp. at 523-24. First, an FEC complaint that has been pending with the agency for just over 15 

months following eight months of agency inaction due to lack of quorum is not violative of reason. 

See, e.g., Common Cause, 489 F. Supp. at 745 (finding a two-year delay was not contrary to law); 

Stockman v. FEC, 944 F. Supp. at 523 (noting that “an FEC investigation lasting approximately 

one year and ten months does not strike the Court as violative of rules of reason” and that resolution 

of similar matters “take[s] 3.3 to 4.6 years to complete”). In resolving MUR 7146—the 

administrative complaint filed by CLC and Catherine Hinckley Kelley advancing similar

allegations—the FEC took 32 months, all while maintaining quorum, to issue a disposition 

declining to investigate the allegations.8 Plaintiff has not pled any reason why this particular 

matter, which was initiated when the FEC lacked a quorum, is nonetheless unreasonably delayed. 

Second, Congress did not provide a timetable within which the FEC must act and does not require 

 7 MUR 4960 (Hillary Rodham Clinton for U.S. Senate Exploratory Committee, et al.), Statement 

of Reasons, Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. 

Thomas at 1 (Dec. 21, 2000).

8 See Summary of MUR 7146, available at https://www.fec.gov/data/legal/matter-underreview/7146/ (last visited July 20, 2021).

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for the FEC to act within a single election cycle. See Rose, 806 F.2d at 1092. Third, while this case 

affects some political actors, it is about activity that occurred several elections ago. This is not a 

case in which agency delay is intolerable, such as cases where human health and welfare are at 

risk. See Rose, 806 F.2d at 1091–92 n. 17. The Plaintiffs do not meet their burden of showing that 

this FEC investigation is of such a nature, that anything less than a quick resolution will be 

intolerable.

III. The equitable doctrine of laches bars Plaintiff’s claim for relief. 

The equitable doctrine of laches provides an independent reason to grant DefendantIntervenors’ motion for judgment on the pleadings. To invoke the defense of laches to bar a claim, 

a defendant “must show that the plaintiff has unreasonably delayed in asserting a claim and that 

there was ‘undue prejudice’ to the defendant as a result of the delay.” Jeanblanc v. Oliver Carr

Co., No. 94–7118, 1995 WL 418667, at *4 (D.C. Cir. June 21, 1995); see also Pro–Football, Inc.

v. Harjo, 415 F.3d 44, 47 (D.C. Cir.2005) (stating that laches “requires proof of (1) lack of 

diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting 

the defense”) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121–22, 122 S.Ct.

2061, 153 L.Ed.2d 106 (2002)). 

This case is unique because while Plaintiff did not delay in filing the instant litigation, it 

did delay in filing its administrative complaint, and it could not file suit in this Court until at least 

120 days after the administrative complaint had been filed. 52 U.S.C. § 30109(a)(8)(A), (C). The 

allegations in Plaintiff’s administrative complaint revolve around Secretary Clinton’s 2016 

presidential campaign and the alleged interconnectedness of the Defendant-Intervenor 

organizations that Plaintiff contends supported her campaign. Because the administrative 

complaint centers on activity surrounding the 2016 election, Plaintiff could have filed it in 2016 

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35

or 2017 at the latest. Indeed, there were a number of other complaints filed in that time that alleged 

similar wrongdoing by Defendant-Intervenors. See, e.g., Campaign Legal Ctr., 507 F. Supp. 3d at 

82. Yet, Plaintiff waited to file until spring 2020, in the middle of the next general election, and

less than two years before the statute of limitations on Plaintiff’s claims will expire. Now,

apparently aware that the statute of limitations is nearing on its claims, Plaintiff is rushing the FEC 

to take public action. Plaintiff’s inexplicable failure to immediately file an administrative 

complaint prejudices the FEC. If this Court provides the relief Plaintiff’s seek—ordering the FEC 

to act on Plaintiff’s complaint within 30 days—the FEC will be forced to reorder its administrative 

priorities, upending the deference traditionally afforded administrative agencies. Plaintiff’s claim 

is barred by the equitable doctrine of laches. 

CONCLUSION

For the reasons stated above, Defendant-Intervenors respectfully request that the Court 

grant their Motion for Judgment on the Pleadings.

Dated: July 20, 2021 Respectfully submitted,

PERKINS COIE LLP

By: /s/ Aria Branch

Marc E. Elias

Aria C. Branch

PERKINS COIE

700 Thirteenth Street, N.W., Suite 800

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Email: MElias@perkinscoie.com

Email: ABranch@perkinscoie.com 

 Attorneys for Defendant-Intervenors

Case 1:20-cv-02229-EGS Document 21-1 Filed 07/20/21 Page 44 of 45
CERTIFICATE OF SERVICE

I hereby certify that on July 20, 2021, that 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. 

By: /s/ Aria Branch

Marc E. Elias

Aria C. Branch

PERKINS COIE

700 Thirteenth Street, N.W., Suite 800

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Email: MElias@perkinscoie.com

Email: ABranch@perkinscoie.com 

Case 1:20-cv-02229-EGS Document 21-1 Filed 07/20/21 Page 45 of 45