UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

GIFFORDS, ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY AND OPPOSITION 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS MOTION TO 

DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AND 

OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Seth Nesin 

Associate General Counsel Seth Nesin 

kdeeley@fec.gov Attorney 

snesin@fec.gov 

January 10, 2020 FEDERAL ELECTION COMMISSION 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 1 of 38
ii 

TABLE OF CONTENTS 

Page 

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

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

I. THIS CASE SHOULD BE DISMISSED UNDER RULE 12(b)(6) OR, 

IN THE ALTERNATIVE, SUMMARY JUDGMENT SHOULD BE 

GRANTED TO THE COMMISSION, BECAUSE THE AGENCY’S 

ACTIONS SINCE THE COMPLAINTS WERE FILED HAVE BEEN 

REASONABLE ...........................................................................................................12 

A. Legal Standards Under Federal Rules 12(b)(6) and 56 ...................................12 

B. Plaintiff Has Failed to State a Claim for Unlawful Delay and Undisputed 

Material Facts Show the Commission Has Acted Reasonably ........................13 

1. The FEC Has Handled These Administrative Matters in a 

Reasonable Time Frame to Date, and Speculation About 

How the Matters May Proceed in the Future Is Not a 

Proper Part of the Judicial Analysis ....................................................14 

2. The FEC Is Entitled to Deference in How It Prioritizes 

Competing Matters, and the Agency’s Workload Has 

Been Historically Heavy During the Relevant Period .........................19 

3. The Matters at Issue Are Legally and Factually Complex ..................22 

4. Human Health and Welfare Are Not Directly at Stake Here ..............24 

C. A Remand Is Not Warranted Because Compliance Would Likely 

Not Be Possible and Would Lead to Results that Are Inconsistent 

With the Statutory Scheme ..............................................................................24 

1. A Remand Should Not Be Ordered Where the Agency 

Has No Possibility of Compliance Absent Congressional 

Intervention ..........................................................................................24 

2. No Private Right of Action Should Be Granted at This 

Time Because There Will Have Been No Commission or 

Judicial Determination as to the Merits of Plaintiff’s Claims 

About the Respondents’ Activities ......................................................25 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 2 of 38
iii 

3. FECA Contemplates Participation by the FEC in Enforcement 

Determinations and Developing Applicable Law ...............................26 

4. The Administrative Respondents Have an Interest in Maintaining 

the Ordinary Procedures That Congress Created to Promote 

Fairness and Ensure Confidentiality ....................................................28 

II. CONCLUSION ............................................................................................................30 

 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 3 of 38
iv 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

American Hosp. Ass’n v. Price, 867 F.3d 160 (D.C. Cir. 2017) ............................................. 24, 25

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 12 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 12 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................. 12 

Citizens for Percy ’84 v. FEC, 1984 WL 6601 (D.D.C. Nov. 19, 1984) ................................ 21, 23 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) ................................................................................................... 23 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

299 F. Supp. 3d 83 (D.D.C. 2018) ............................................................................................. 25 

Common Cause, et al. v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ..................................... 12, 13, 22 

Democratic Senatorial Campaign Comm. v. FEC, 1996 WL 34301203 

(D.D.C. Apr. 17, 1996) ........................................................................................................ 19, 21 

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995) .................................................................... 12 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .................................................................. 15, 19, 21 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) .................................................................... 20 

Level the Playing Field v. FEC, 381 F. Supp. 3d 78 (D.D.C. 2019) ....................................... 25-26 

Loving v. Dept. of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008) ..................................................... 21 

Nat. Res. Def. Council, Inc. v. Train, 510 F.2d 692 (D.C. Cir. 1974) .......................................... 25 

Nat’l. Right to Work Comm. v. FEC, No. 84-2955, slip op. (Oct. 31, 1984) ................................ 22 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ................................................................................. 28 

Sierra Club v. Jackson, 648 F.3d.848 (D.C. Cir. 2011)................................................................ 12 

Telecom. Research & Action Ctr. v. FCC, 750 F.2d 70 

(D.C. Cir. 1984) ................................................................................................................... 13, 14 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 4 of 38
v 

Statutes and Regulations 

52 U.S.C. § 30106(a)(1) ................................................................................................................ 28 

52 U.S.C. § 30109(a)(1) ................................................................................................................ 29 

52 U.S.C. § 30109(a)(2) ................................................................................................................ 29 

52 U.S.C. § 30109(a)(3) ................................................................................................................ 29 

52 U.S.C. § 30109(a)(4)(A)(i) ...................................................................................................... 29 

52 U.S.C. § 30109(a)(4)(B)(i)....................................................................................................... 29 

52 U.S.C. § 30109(a)(4)(C) .......................................................................................................... 18 

52 U.S.C. § 30109(a)(6)(A) .......................................................................................................... 29 

52 U.S.C. § 30109(a)(8) ................................................................................................ 2, 12, 25, 28 

52 U.S.C. § 30109(a)(8)(C) .................................................................................................... 25, 26 

52 U.S.C. § 30109(a)(12) .............................................................................................................. 29 

52 U.S.C. § 30109(d) .................................................................................................................... 18 

29 C.F.R. § 1601.28 ...................................................................................................................... 27 

Miscellaneous 

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

Fed. R. Civ. P. 56(c) ..................................................................................................................... 12 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 5 of 38
vi 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

GIFFORDS, ) 

 ) 

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

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) INDEX OF EXHIBITS 

 ) 

 Defendant. ) 

 ) 

INDEX OF EXHIBITS ACCOMPANYING FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION TO DISMISS, OR IN THE ALTERNATIVE, 

FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S CROSSMOTION FOR SUMMARY JUDGMENT 

Exh. 1: FEC’s Counter-Statement of Disputed Facts 

Exh. 2: Declaration of Charles Kitcher 

Exh. 3: Excerpts of Transcript of Deposition of Jonathan Peterson 

Exh. 4: Excerpts of Transcript of 30(b)(6) Deposition of FEC Through Its Designee Charles 

Kitcher 

Exh. 5: Nat’l. Right to Work Comm. v. FEC, No. 84-2955, slip op. (Oct. 31, 1984) 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 6 of 38
The Federal Election Commission (“FEC” or “Commission”) has moved to dismiss this 

case for failure to state a claim upon which relief can be granted, and alternatively for summary 

judgment, because plaintiff Giffords cannot prevail in its challenge to the FEC’s purported 

failure to timely act upon four administrative complaints. (See Mem. in Supp. of FEC’s Mot. to 

Dismiss, or in the Alternative, for Summ. J. (“FEC Mem.”) (Dec. 6, 2019) (Docket No. 42).). 

Indeed, plaintiff does not dispute that the matters at issue are complex ones with many 

respondents or that the Commission has discretion to allocate its limited resources appropriately, 

and plaintiff concedes that the Commission’s staff acted reasonably in their handling of the 

matters for almost a year after the first complaint was filed, up until submission of the First 

General Counsel’s Report to the Commission in May 2019. 

Plaintiff now focuses its case on the claim that the Commissioners have violated the law 

by not proceeding further since that time. However, the Commissioners were able to consider 

the Office of General Counsel’s recommendations and the responses from the many 

administrative respondents for less than two months before losing a quorum to proceed with the 

matters. The general time period when the recommendations were pending with Commissioners 

was a historically busy period when the Commissioners deliberated about enforcement matters, 

opened investigations, conciliated matters, and closed matters at a tremendous rate. Plaintiff 

fails to establish that the Commission’s ordering of priorities, including closing a number of 

other complex matters involving the 2016 presidential candidates and matters involving foreign 

national allegations, was unreasonable. 

There has been no unreasonable delay here under the deferential standards of review, 

particularly because the proper inquiry is based on the totality of what has transpired since the 

administrative complaints were filed in the latter half of 2018. The agency has lost a quorum to 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 7 of 38
2 

proceed with the matters, but the court’s inquiry is not limited to the relatively short time period 

since that time, and only the President and Congress can remedy that problem. Even after taking 

unprecedented discovery into the agency’s decision-making on these matters, plaintiff has failed 

to show that the agency’s diligent overall handling of the matters has been contrary to law under 

52 U.S.C. § 30109(a)(8). Thus, even if the Court finds that plaintiff has stated a claim, it should 

grant summary judgment to the Commission and deny it to Giffords. 

Finally, the Court should decline to remand to the agency to complete an action within 30 

days that requires four or more votes given the likelihood that will not be possible. Even if the 

Court were to find unreasonable delay, it should at most order a stay of the matter, rather than 

entering an order requiring an agency to conform to an order that would only be possible through 

intervention by Congress. Here there will have been no Commission or judicial determination as 

to the merits of plaintiff’s complaints about the lawfulness of the conduct of the administrative 

respondents since this case is solely about whether the agency has unreasonably delayed in 

handling the matters. An order requiring a vote within 30 days at this juncture would likely 

deprive the Commission of an opportunity to conform. Although the Federal Election Campaign 

Act (“FECA”) includes a private right of action as a failsafe, granting such a right without an 

opportunity for the agency to conform would prematurely enable an action between political 

adversaries and be inconsistent with the statutory scheme. 

BACKGROUND 

The Commission previously set forth a summary of the actions taken on plaintiff’s 

administrative complaints through July 1, 2019, based on chronologies of formal steps indicated 

in the administrative records. (FEC Mem. at 10-12; Peterson Dep. 19:4-19:25, FEC Ex. 3.) 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 8 of 38
3 

Plaintiff now attempts to add to the record following the Rule 56(d) discovery it sought, but it 

presents facts that are in some respects incomplete or misleading. (Pl.’s Mem. of P&A in 

Support of Cross Mot. Summ. J. and Opp’n to Def.’s Mot. to Dismiss or in the Alternative for 

Summ. J. (“Giffords Mem.”) at 2-5 (Docket No. 45).) Though plaintiff has failed to contravene 

the Commission’s showing that summary judgment should be awarded to it based solely on the 

chronologies and public records, supplemental testimony responsive to plaintiff’s submissions is 

provided herewith, along with an update of events subsequent to July 1. (See Declaration of 

Charles Kitcher (“Kitcher Decl.”), FEC Ex.2.) 

When plaintiff’s first administrative complaint was filed and a first response to that 

complaint had been received in September 2018, the matter was identified as a candidate for an 

expedited track, with a 30-day time goal for drafting and submission of a First General 

Counsel’s Report. (Kitcher Decl. ¶ 6.) Matters are not, however, automatically “activated” and 

assigned to staff with a time goal for completion of the First General Counsel’s Report after 

responses to complaints are received. (Kitcher Dep.at 35:4-36-7, FEC Ex. 4.) Consideration is 

also given to whether staff attorneys and their managers have available time to complete a First 

General Counsel’s Report within the desired time goal. (Id..)

1

 When managers from the 

Complaints Examination and Legal Administration and the rest of the FEC’s Enforcement 

Division conferred in mid-September, it was determined that no staff had sufficient time 

available at that juncture to complete a First General Counsel’s Report for plaintiff’s first 

administrative complaint within 30 days. (Kitcher Decl. ¶ 6.) 

 

1

 The agency sets as a goal having a case activated and formally assigned to a staff attorney 

within 90 days of having all responses to a complaint received, but by spring of 2019 was able to 

do so in only two-thirds of cases. (Pl. Exh. 8 at 3.) 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 9 of 38
4 

The FEC’s Jonathan Peterson and Assistant General Counsel Lynn Tran, who were 

ultimately assigned to all of the matters, were considered for assignment to the first matter with 

that 30-day goal, but their considerable workload on other major matters prevented it. (Kitcher 

Decl. ¶ 6.) Mr. Peterson already had between eight to twelve other matters on his docket, 

including four to five that were of a complexity and priority similar to the matters at issue here 

and at stages involving significant work. (Peterson Dep. 37:4-38:16.) His assignments as of 

mid-September included: (1) drafting two major First General Counsel’s Reports analyzing 

whether the two major 2016 presidential campaigns and dozens of political party committees had 

committed violations in connection with joint fundraising activity;2

 (2) drafting a First General 

Counsel’s Report analyzing two separate matters concerning whether a purported commercial 

services provider was in fact operating as an unregistered political committee;3

 (3) an extensive 

investigation of an entity found to have committed violations of FECA’s registration and 

reporting requirements for political committees;4 and (4) investigation of a candidate’s failure to 

file a statement of candidacy and to disclose in-kind contributions and include disclaimers in 

connection with a radio show.5 

 

2

 MUR 7304 (Hillary Victory Fund), https://www.fec.gov/data/legal/matter-under-review/7304/; 

MUR 7331 (Hillary Victory Fund), https://www.fec.gov/data/legal/matter-under-review/7331/; MUR 7339 

(Trump Victory), https://www.fec.gov/data/legal/matter-under-review/7339/; MUR 7597 (Texas 

Democratic Party), https://www.fec.gov/data/legal/matter-under-review/7597/; MUR 7598 (Democratic 

Party of South Carolina), https://www.fec.gov/data/legal/matter-under-review/7598/; MUR 7600 (Utah 

State Democratic Committee), https://www.fec.gov/data/legal/matter-under-review/7600/. 

3

 MUR 7309 (CrowdPAC, Inc.), https://www.fec.gov/data/legal/matter-under-review/7309/; MUR 

7399 (CrowdPAC, Inc.), https://www.fec.gov/data/legal/matter-under-review/7399/. 

4

 MUR 6538R (Americans for Job Security), https://www.fec.gov/data/legal/matter-underreview/6538R/. 

5

 MUR 7073 (Meluskey for US Senate), https://www.fec.gov/data/legal/matter-underreview/7073/. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 10 of 38
5 

Plaintiff’s second administrative complaint was filed on September 17, 2018. Agency 

staff then determined to consider the related matters together, an approach they maintained as 

each of the six complaints, amendments, and supplements in the four matters was eventually 

received. (Peterson Dep. at 28:7-13, 32:24-33:18.) 

Though still awaiting additional responses to the then-pending complaints, Mr. Peterson 

along with his supervisor Ms. Tran were informally “pre-tagged” to begin work on the earlier 

matters before formal assignment and before the agency had received the last two administrative 

complaints in late 2018. (Peterson Dep. 29:10-12.) He began researching the relevant facts and 

law in mid-October. (Id.) 

On December 17, 2018, Mr. Peterson sent portions of a tentative draft First General 

Counsel’s Report for an initial review by his supervisor. (Kitcher Dep. 59:4-60:13, 62:13-63:9.) 

But for the 35-day government shutdown, when the agency was closed and assigned staff were 

not permitted to work on the matters, Mr. Peterson would have continued to work on addressing 

the additional allegations in the fourth complaint and Ms. Tran would have commenced an initial 

review of Mr. Peterson’s partial tentative draft. (Id.) That would have enabled completion of 

the draft earlier than the May 10, 2019, date when it was ultimately circulated. 

Despite the shutdown, Commission staff ultimately set aggressive goals for circulation of 

the First General Counsel’s Report as to all four administrative matters after agency operations 

resumed in spring 2019. (Id.) All told, the administrative complaints with amendments and 

supplements are 501 pages long. (Pl. Exhs. 1-6.) The responses to the complaints total 398 

pages. (Kitcher Decl.¶ 4.) While plaintiff’s administrative complaints were pending, Mr. 

Peterson simultaneously handled three investigations, in addition to the other very substantial 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 11 of 38
6 

assignments detailed above. (Peterson Dep. 40:4-40:10.) The First General Counsel’s Report 

analyzing and making recommendations regarding the matters was nevertheless circulated on 

May 10, 2019, two weeks earlier than the time goal for completion for the first three filed 

MURs. 

In May 2019, the agency was diligently working through its enforcement docket, 

including many of the complaints that it received during the historically high fiscal year 2018. 

(FEC Facts 107.) Its agenda for its May 7 and 9, 2019, Executive Session included 21 items, 

and Commissioners discussed about eleven of them in person (Kitcher Decl.¶ 9.) The 

Executive Session days typically last around five hours, sometimes longer. (Peterson Dep. 

95:21-96:5.) Between its meeting on April 25, 2019 and the end of the May 9 meeting, the 

agency closed seventeen MURs, including one involving allegations that Paul Manafort had 

orchestrated a scheme to illegally funnel contributions from a political party in Ukraine to federal 

candidates.6 Although the Commission had not yet even received the First General Counsel’s 

 

6

 MUR 7272 (Party of Regions), https://www.fec.gov/data/legal/matter-underreview/7272/ (alleged scheme of foreign national contributions by Paul Manafort); MUR 7529 

(Molly C. Braswell), https://www.fec.gov/data/legal/matter-under-review/7529/; MUR 7517 

(Mast for Congress), https://www.fec.gov/data/legal/matter-under-review/7517/; MUR 7509 

(Tim Ryan for Congress), https://www.fec.gov/data/legal/matter-under-review/7509/; MUR 

7499 (Cristina McNeil for Congress), https://www.fec.gov/data/legal/matter-under-review/7499/; 

MUR 7489 (Diehl for U.S. Senate), https://www.fec.gov/data/legal/matter-under-review/7489/; 

MUR 7488 (The Friends of Tracy Mitrano Committee), https://www.fec.gov/data/legal/matterunder-review/7488/; MUR 7487 (Courtney Tritch), https://www.fec.gov/data/legal/matter-underreview/7487/; MUR 7483 (Leonard for Minnesota), https://www.fec.gov/data/legal/matterunder-review/7483/; MUR 7481 (Matt Rosendale for Montana), 

https://www.fec.gov/data/legal/matter-under-review/7481/; MUR 7462 (Bob Rackleff for 

Congress Campaign), https://www.fec.gov/data/legal/matter-under-review/7462/; MUR 7440 

(The New Pac), https://www.fec.gov/data/legal/matter-under-review/7440/; MUR 7439 (Philip 

A. Hart Democratic Club), https://www.fec.gov/data/legal/matter-under-review/7439/; MUR 

7417 (Indivisible Washington’s 8th District), https://www.fec.gov/data/legal/matter-underreview/7417/; MUR 7376 (Charlotte County Republican Committee), 

https://www.fec.gov/data/legal/matter-under-review/7376/; MUR 7225 (Jack Wu), 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 12 of 38
7 

Report regarding plaintiff’s administrative complaints, discussions of the timing of that report 

and the agency’s handling of the matters — including some substantive aspects of them — arose 

in connection with another agenda item on both May 7 and May 9. (Peterson Dep. 75:4-76:6; 

Kitcher Dep. 111:8-117:20.7) The matters were discussed for approximately 10-15 minutes total 

over the course of the two meeting days. (Peterson Dep. 81:13-81:21, 82:10-83:4.) 

 The Commission’s May 21 and 23 Executive Session had 22 items on its agenda and the 

Commissioners deliberated regarding about seventeen of them in person. (Kitcher Decl. ¶ 12.) 

Between May 10, 2019 and the end of the May 23, 2019 meeting, the agency closed seven 

MURs.8 Though the deadline for notation or tally voting regarding the recommendations in the 

First General Counsel’s Report had passed only one day earlier, Commissioners deliberated for 

about 15 minutes on the matters at issue here on May 23, hearing a presentation from the Office 

of General Counsel regarding its recommendations and asking questions. (Peterson Dep. 96:17-

97:2.) The Commission did not vote on the matters at that time due to the “voluminous record; 

 

https://www.fec.gov/data/legal/matter-under-review/7225/; MUR 7022 (Bernie 2016), 

https://www.fec.gov/data/legal/matter-under-review/7022/. 

7

 Commissioners regularly have such deliberations involving substantive issues in relation 

to timing considerations, including determinations such as whether to abate matters for a related 

criminal proceeding, defer voting on matters pending a court decision on a related issue, expedite 

matters in light of statute of limitations concerns, or consider together matters presenting similar 

legal issues but different respondents. 

8

 MUR 7586 (International Council of Shopping Centers, Inc.), 

https://www.fec.gov/data/legal/matter-under-review/7586/; MUR 7505 (End Citizens United), 

https://www.fec.gov/data/legal/matter-under-review/7505/; MUR 7457 (Theresa Gasper for 

Congress), https://www.fec.gov/data/legal/matter-under-review/7457/; MUR 7435 (David Vitter 

for U.S. Senate), https://www.fec.gov/data/legal/matter-under-review/7435/; MUR 7418 (Fuse 

Washington), https://www.fec.gov/data/legal/matter-under-review/7418/; MUR 7287 (Russell 

C. Fagg), https://www.fec.gov/data/legal/matter-under-review/7287/; MUR 7267 (Hawley for 

Missouri), https://www.fec.gov/data/legal/matter-under-review/7267/. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 13 of 38
8 

the number of responses, complaints; the complexity of the legal and factual issues; and the 

other number of matters that were under consideration.” (Peterson Dep. 108:18-20, 110:21-

111:6, 120:17-122:3.) Included in “the press of numerous other matters on the agenda” were 

some “to which the Commission was giving very high priority,” allegations of foreign national 

interference. (Kitcher Dep. 122:7-124:6.) 

The Commission’s agenda for its June 4 and 6, 2019, Executive Session included 15 

items and Commissioners deliberated regarding thirteen of them. (Kitcher Decl. ¶ 13.) 

Between May 24, 2019 and the end of June 6, 2019, the agency closed thirteen MURs, including 

five overlapping matters alleging a variety of illegal coordination activity between Hillary 

Clinton’s presidential campaign and Correct the Record PAC.9 The Commissioners held 

substantive deliberations about the matters as issue here for about 18 minutes. (Kitcher Dep. 

125:2-125:12.) A Commissioner did request and receive information about the matters from 

staff before, during, and after the Executive Session. (Peterson Dep. 103:11-105:13.) For 

 

9

 MUR 7193 (Correct the Record), https://www.fec.gov/data/legal/matter-underreview/7193/; MUR 7160 (Hillary For America, et al.), https://www.fec.gov/data/legal/matterunder-review/7160/; MUR 7146 (Correct the Record), https://www.fec.gov/data/legal/matterunder-review/7146/; MUR 7097 (Correct the Record PAC), 

https://www.fec.gov/data/legal/matter-under-review/7097/; MUR 6940 (Correct the Record 

PAC), https://www.fec.gov/data/legal/matter-under-review/6940/; MUR 7552 (Scholten4Iowa 

Campaign Committee), https://www.fec.gov/data/legal/matter-under-review/7552/; MUR 7534 

(William P. Huizenga), https://www.fec.gov/data/legal/matter-under-review/7534/; MUR 7416 

(Unknown Respondents), https://www.fec.gov/data/legal/matter-under-review/7416/; MUR 

7399 (CrowdPAC, Inc.), https://www.fec.gov/data/legal/matter-under-review/7399/; MUR 7309 

(CrowdPAC, Inc.), https://www.fec.gov/data/legal/matter-under-review/7309/; MUR 7264 (Todd 

Rokita), https://www.fec.gov/data/legal/matter-under-review/7264/; MUR 7263 (I Like Luke), 

https://www.fec.gov/data/legal/matter-under-review/7263/; MUR 7221 (Mepco Holdings, LLC), 

https://www.fec.gov/data/legal/matter-under-review/7221/. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 14 of 38
9 

reasons similar to those given previously, more time was sought for consideration of the matters. 

(Kitcher Dep. 126:16-126:22.) 

The Commission’s agenda for its June 20, 2019, Executive Session included twenty 

items and Commissioners deliberated regarding twelve of them. (Kitcher Decl. ¶ 14.) Between 

June 7, 2019 and the end of the June 20, 2019 meeting, the agency closed 8 MURs.10 Plaintiff’s 

administrative complaints were briefly discussed, but more time was again requested to consider 

the matters. (Kitcher Dep. 130:9-131:14.) 

The Commission’s agenda for its June 25 and 27, 2019, Executive Session included 

eighteen items and approximately eleven of them were discussed. (Kitcher Decl. ¶ 15.) A 

MUR was closed at the meeting.11 Following a brief discussion, the matter was once again held 

over for the reasons previously articulated. (Kitcher Dep. 141:19-23, Peterson Dep. 103:11-

105:13.) 

The Commission’s agenda for its July 9 and 11, 2019, executive session included 23 

items and about sixteen were discussed. (Kitcher Decl. ¶ 16.) Between June 28, 2019 and the 

end of the July 11, 2019 meeting, the agency closed six MURs, including one alleging that two 

 

10 MUR 7492 (Friends of Ben McAdams), https://www.fec.gov/data/legal/matter-underreview/7492/; MUR 7461 (Julio Gonzalez for Congress), https://www.fec.gov/data/legal/matterunder-review/7461/; MUR 7451 (Ring Power Corporation), 

https://www.fec.gov/data/legal/matter-under-review/7451/; MUR 7421 (Cramer for Senate), 

https://www.fec.gov/data/legal/matter-under-review/7421/; MUR 7391 (Jason Crow for 

Congress), https://www.fec.gov/data/legal/matter-under-review/7391/; MUR 7286 (Indivisible 

Kentucky, Inc.), https://www.fec.gov/data/legal/matter-under-review/7286/; MUR 7073 

(Melusky for U.S. Senate), https://www.fec.gov/data/legal/matter-under-review/7073/; MUR 

6865 (Jose Susumo Azano Matsura), https://www.fec.gov/data/legal/matter-under-review/6865/. 

11 MUR 7293 (Zinke for Congress), https://www.fec.gov/data/legal/matter-underreview/7293/. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 15 of 38
10 

foreign nationals and an American citizen engaged in a scheme to funnel millions of dollars in 

foreign money to the NRA and an associated entity for the purpose of financing independent 

expenditures.12 The Commission lost its quorum to vote on the matters when then-Vice 

Chairman recused from the matters on July 9. (Kitcher Decl.¶ 16; Kitcher Dep. 143:22-144:2.) 

Vice Chairman Petersen subsequently resigned his position, leaving the Commission with only 

three sitting Members and unable to constitute a quorum for purposes of making enforcement 

determinations. (Kitcher Decl.¶ 17.) 

During the time between the meeting on April 25, 2019 and the meeting on July 11, 

2019, the FEC thus closed a total of 52 MURs, some of which were high profile and/or involved 

complex legal or factual scenarios. 

While the First General Counsel’s Report in the matters at issue has been pending, the 

Commissioners have also voted to open a number of investigations and enter into a number of 

conciliation agreements that is very high by historical standards. In the third quarter of the 

agency’s 2019 fiscal year, from April 1 through June 30, the agency commenced fourteen 

investigations. (Pl. Exh. 8 at 4.) That is the same or more, and in some cases three times more, 

than the Commission opened in the entire fiscal years in 2013-2017. (Id.) In the next quarter, 

from July 1 through September 30, Commissioners voted to open another fourteen 

investigations. (Q4 Report at 4.) For the complete fiscal year ending in September 2019, the 

 

12 MUR 7314 (NRA), https://www.fec.gov/data/legal/matter-under-review/7314/; MUR 

7493 (Committee to Elect Suraj Patel), https://www.fec.gov/data/legal/matter-underreview/7493/; MUR 7432 (John James for Senate, Inc.), https://www.fec.gov/data/legal/matterunder-review/7432/; MUR 7412 (Denver Metro Chamber Leadership Foundation), 

https://www.fec.gov/data/legal/matter-under-review/7412/; MUR 7336 (Mulvaney for 

Congress), https://www.fec.gov/data/legal/matter-under-review/7336/; MUR 7292 

(Representative Clifford Stearns), https://www.fec.gov/data/legal/matter-under-review/7292/. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 16 of 38
11 

Commission commenced 31 investigations, a number that is between approximately two to eight 

times as many investigations as were opened in the preceding six fiscal years. (Id.) The agency 

also concluded 84 conciliation negotiations (id.), the method preferred by Congress for 

remedying violations of FECA, in fiscal year 2019, the most since 2007 (Kitcher Decl. ¶ 26.) 

The conciliation agreements led to approximately $2.1 million in civil penalties, the most since 

fiscal year 2008. (FEC Enforcement Statistics 1997-2019, 

https://transition.fec.gov/press/bkgnd/EnforcementStatistics.shtml (last updated Oct. 17, 2019.) 

The Commission devoted considerable attention to addressing plaintiff’s administrative 

complaints before losing its quorum, despite being engaged in a prolific amount of enforcement 

work. After the experience of a historic amount of incoming matters during fiscal year 2018 and 

a lower number of budgeted full-time employees at the agency early in fiscal year 2019 (FEC 

Facts 107-09), the agency moved to reduce the likelihood of a recurrence of the difficulty 

finding available staff to assign to plaintiff’s administrative complaints. In December 2018 and 

early 2019, months after work on some of the matters had been delayed due to resource limits, 

the agency diverted resources to the Enforcement Division through the hiring of additional staff 

attorneys, despite the agency’s overall plan not to backfill ten full-time equivalent positions. 

(Kitcher Dep. 62:13-63:9, 64:6-66:10.) 

 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 17 of 38
12 

ARGUMENT 

I. THIS CASE SHOULD BE DISMISSED UNDER RULE 12(b)(6) OR, IN THE 

ALTERNATIVE, SUMMARY JUDGMENT SHOULD BE GRANTED TO THE 

COMMISSION, BECAUSE THE AGENCY’S ACTIONS SINCE THE 

COMPLAINTS WERE FILED HAVE BEEN REASONABLE 

A. Legal Standards Under Federal Rules 12(b)(6) and 56 

As the Commission explained, dismissal of plaintiff’s case is appropriate where, 

accepting the factual allegations in the court complaint as true and drawing all reasonable 

inferences in the plaintiff’s favor, the allegations fail as a matter of law to state a claim on which 

relief can be granted. See FEC Mem. at 13; Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009); Sierra Club v. Jackson, 648 F.3d. 848, 854 (D.C. Cir. 2011); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 558 (2007) (“A claim must be dismissed “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief.”). In the alternative, 

summary judgment is appropriate when the evidence shows that “there is no genuine issue as to 

any material fact and that the moving party is entitled to a judgment as a matter of law.” See

FEC Mem. at 23; Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).

Whether the Court is considering the motion to dismiss or the cross-motions for summary 

judgment, the Court must determine whether the Commission has acted “contrary to law” in 

handling the administrative matters. 52 U.S.C. § 30109(a)(8). As the Commission discussed in 

its opening brief (FEC Mem. at 13-14), that determination involves an examination of four 

factors articulated in Common Cause v. FEC: “‘[1] the credibility of the allegation, [2] the 

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

available to it, as well as the novelty of the issues involved.’” 489 F. Supp. 738, 744 (D.D.C. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 18 of 38
13 

1980). But the Court should also consider the six factors announced in Telecommunications 

Research & Action Center v. FCC: 

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

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

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

proceed in the enabling statute, that statutory scheme may supply 

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

in the sphere of economic regulation are less tolerable when human 

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

effect of expediting delayed action on agency activities of a higher 

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

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

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

lassitude in order to hold that agency action is unreasonably 

delayed. 

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

B. Plaintiff Has Failed to State a Claim for Unlawful Delay and Undisputed 

Material Facts Show the Commission Has Acted Reasonably 

As the court of appeals has explained, the first factor to be considered in cases like this is 

that “the time agencies take to make decisions must be governed by a rule of reason.” TRAC, 

750 F.2d at 80 (internal quotation marks omitted). The Commission has met this reasonableness 

standard in its consideration of the four administrative complaints plaintiff filed. (FEC Mem. at 

14-27.) Plaintiff now appears to suggest a more stringent standard by which the Court should 

evaluate the Commission’s actions – “whether the Commission has acted ‘expeditiously.’” 

(Giffords Mem. at 6-7 (quoting Common Cause, 489 F. Supp. at 744); see also Giffords Mem. at 

19.) But the D.C. Circuit in TRAC made clear that the proper standard was reasonableness, not 

expeditiousness. TRAC, 750 F.2d at 80. And even the district court opinion on which plaintiff 

relies — an opinion that predated TRAC — did not suggest that expeditiousness was one of the 

factors courts should be consider in this context. See Common Cause, 489 F. Supp. at 744. This 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 19 of 38
14 

Court should decline plaintiff’s invitation to ratchet up the standard for what constitutes lawful 

agency action. 

 Moreover, the Court should evaluate the reasonableness of the FEC’s handling of 

administrative enforcement matters in their totality, taking into account both the overall progress 

of the matters over the time since the administrative complaints were filed as well as the overall 

diligence of relevant agency conduct in light of the nature of those matters and the agency’s 

workload, including any specific circumstances that might have slowed the pace of the 

administrative process. See TRAC, 750 F.2d at 80. The Court should reject plaintiff’s attempt to 

focus on a specific slice of time starting almost a year after the first administrative complaint 

was filed, and then claim that a lack of progress during that shorter period represents unlawful 

delay. 

Under the standards described above, the Commission’s handling of the MURs at issue 

here does not constitute unreasonable delay. Plaintiff does not dispute that it initiated four 

complex administrative matters in the latter half of 2018 identifying numerous respondents. 

Applying the Common Cause and TRAC standards, neither the elapsed time period nor the 

factual information about the Commission’s conduct that plaintiff has now elicited in discovery 

show that there has been unlawful delay. To the contrary, particularly given the competing 

demands on the Commission’s resources, the 2018-2019 government shutdown, and the current 

lack of a quorum, the FEC has acted well within the “rule of reason.” (FEC Mem. at 14-27.) 

1. The FEC Has Handled These Administrative Matters in a Reasonable 

Time Frame to Date, and Speculation About How the Matters May 

Proceed in the Future Is Not a Proper Part of the Judicial Analysis 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 20 of 38
15 

As an initial matter regarding timing, a key factor indicating that the Commission’s 

handling of these matters has been lawful — and one that plaintiff does not dispute — is that 

there is no “timetable or other indication,” TRAC, 750 F.2d at 80, governing how quickly the 

Commission must act on administrative enforcement complaints. (FEC Mem. at 15-16.) Indeed, 

the court of appeals has made clear that the Commission is not required to act within the 120-day 

jurisdictional threshold for bringing a delay suit, nor even within a two-year election cycle. FEC 

v. Rose, 806 F.2d 1081, 1091-92 (D.C. Cir. 1986). Thus, the proper timing standard is the 

general one of reasonableness. 

Although the Commission’s reasonableness is properly judged in total, plaintiff attempts 

to persuade the Court to focus on a two-month period immediately after the Commissioners 

received the First General Counsel’s Report from Commission staff. (See Giffords Mem. at 2-4, 

13-16 (focusing almost exclusively on the period between May 10, 2019 and July 8, 2019).) But 

plaintiff’s criticisms of the Commission during that period lack merit, and closer examination of 

the period shows that the Commission has in fact handling the administrative matters reasonably 

throughout the process. 

Plaintiff appears to acknowledge that the Commission acted reasonably at least until May 

10, 2019, when the First General Counsel’s Report was circulated to Commissioners. Plaintiff 

concedes that the matters initially “were given high priority” at the agency (Giffords Mem. at 9), 

and that they proceeded “at a reasonable pace through the staff’s role in the initial stage of the 

enforcement proceedings” (id. at 11). As plaintiff notes, a staff attorney was assigned to these 

matters promptly, and he began researching the relevant facts and law before the Commission 

had even received all of the responses from administrative respondents. (Id. at 10.) Indeed, the 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 21 of 38
16 

attorney was “pre-tagged” to begin work on the earlier matters before formal assignment and 

before the agency had received the last two administrative complaints in late 2018. (Peterson 

Dep. 28:8-12.). Enforcement Division managers also made an effort to proceed even more 

quickly, on a 30-day time frame for submission of the First General Counsel’s Report as to the 

pending matters, but no staff attorney was available to meet that ambitious goal in light of the 

Enforcement Division’s workload. (Kitcher Decl.¶ 6.) Soon after the fourth and final complaint 

was received in December 2018, the 35-day government shutdown presented an additional 

obstacle, as the agency was closed and assigned staff were not permitted to work on the matters. 

(Kitcher Dep. 41:22-25; FEC’s Statement of Material Facts Not in Genuine Dispute (“FEC 

Facts”) ¶¶ 37, 57, 77, 92.) Despite all this, Commission staff ultimately set aggressive goals for 

circulation of the First General Counsel’s Report as to the four administrative matters after 

agency operations resumed in early 2019, and in fact the Report was circulated even earlier than 

the deadline for the first three MURs. (Peterson Dep. 51:20-52.3; 52:4-6.) Nowhere in 

plaintiff’s brief does it argue that the Commission unlawfully delayed during the period prior to 

May 10, 2019. 

What plaintiff does focus on, however, is its allegation that “progress came to a halt 

when the matters were turned over to the Commission to make the reason to believe 

determination.” (Giffords Mem. at 11.) But the fact that the Commissioners considered these 

matters for two months without taking a vote, while discussing them multiple times in executive 

sessions and other contexts, merely shows that these complex matters were being considered 

deliberately and with due care. The mere fact that Commissioners have received a First General 

Counsel’s Report prior to a meeting does not guarantee that they will be ready to vote, and it is 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 22 of 38
17 

routine for matters to be held over so that Commissioners can continue to evaluate the matters, 

engage further with the First General Counsel’s Report and other relevant materials, discuss 

matters with staff, and consider their votes more fully. Plaintiff’s recitation of the number of 

minutes that the matters were discussed at a particular meeting (Giffords Mem. at 3, 13) is a 

superficial analysis that misses the point. Consideration of complex matters like those at issue 

here requires substantial effort by Commissioners and staff outside of formal meeting time and 

cannot be reduced to the amount of time spent at such meetings, any more than a federal court 

case could be deemed simple and easy because oral argument is limited to 15 minutes per side. 

Unfortunately, despite all these diligent efforts, the agency soon lost its quorum as to 

these matters. On July 8, 2019, former Commissioner Matthew Petersen recused from the 

matters, which left the Commission with fewer Members than needed to vote or discuss them, 

and Commissioner Petersen left the agency at the end of August 2019. (Giffords Mem. at 4.)13 

Plaintiff lumps together the two months in which the Commission was actively engaged with 

these matters with the subsequent six months in which the Commission has been prevented from 

acting, and essentially argues that this passage of time constitutes unreasonable delay. But it is 

 

13 Plaintiff implies that the Commission acted improperly by not disclosing this recusal 

until the depositions taken by plaintiff in November 2019. But those depositions were the first 

time the Commission had an obligation to disclose this information. The only substantive FEC 

filing after Commissioner Petersen recused but before those depositions was the FEC’s Reply in 

Support of its Motion to Dismiss (Docket No. 23), which did not discuss any specific facts 

related to the MURs and therefore had no occasion to mention the recusal. Plaintiff does not 

explain what it believes would have happened differently in this litigation if the Commission had 

disclosed this information earlier. If anything, the fact that the Commission has been prevented 

from acting on these matters since July 8, 2019, rather than September 1, 2019 when former 

Commissioner Petersen left the FEC, makes the lack of a vote on whether there is a reason to 

believe a violation occurred more reasonable, not less so. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 23 of 38
18 

important to note that progress did not wane “when the matters were turned over to the 

Commission” (Giffords Mem. at 11); rather, it was only after the Commission lost its quorum 

that further progress became impossible. 

Moreover, when the Court considers the reasonableness of the Commission’s actions to 

date, the time after the Commission has lost its quorum should be considered differently. This is 

not a situation in which the FEC is refusing to act or comply with a judicial directive. On the 

contrary, the Commission is incapable of acting due to lack of a quorum, a situation that could 

be resolved by Congress at any time. Plaintiff provides no support for its assertion that 

“Congress created a private right of action to ensure speedy resolution of FEC enforcement 

matters to remedy situations in which the FEC is ... unable to act.” (Giffords Mem. at 21.) And 

plaintiff presents no reason to believe that Congress contemplated the current situation when 

passing FECA more than 40 years ago. 

The Commission is not responsible for the current lack of quorum or for any resulting 

inaction. Congress and the President could fill the open positions at the agency, some of which 

have been vacant for years, but to date they have not done so. If Congress is concerned with a 

lack of enforcement by the FEC, then it has the power to fill the vacancies on the Commission. 

On the other hand, if Congress is content to allow the current pause in administrative 

enforcement matters, then the Court should take that fact into consideration in determining 

whether Congress would believe that any delay is reasonable under the statute. It is also 

important to note that this situation does not affect criminal enforcement of FECA by the 

Department of Justice. 52 U.S.C. § 30109(a)(4)(C), (d). Of course, the lack of a quorum does 

not insulate the Commission from a finding of unlawful delay in every situation. However, at 

this time there has been no such delay in the matters now before the Court. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 24 of 38
19 

Nor should the Court be persuaded by plaintiff’s claims that “the Commission has not 

even conducted the first stage of the enforcement process” (Giffords Mem. at 2) or that “the 

Commission has not yet completed the initial stage of enforcement” (id. at 7). Obviously the 

Commission has already completed a great deal of the required enforcement activity and 

procedures in these four matters. (FEC Mem. at 24-27.) And going forward, there are numerous 

potential outcomes to these matters, including the possibility that they would conclude 

immediately after the Commission votes on whether there is reason to believe a violation has 

occurred. A determination that the Commission has acted contrary to law because it has to 

complete additional steps in the enforcement process is based on an unjustified assumption that 

such steps will ultimately be necessary.14 

In sum, the amount of time taken by the Commission in these matters to date has been 

reasonable under the circumstances and consistent with FECA’s detailed structure for the 

handling of administrative enforcement complaints. (See FEC Mem at 24-27.) 

2. The FEC Is Entitled to Deference in How It Prioritizes Competing 

Matters, and the Agency’s Workload Has Been Historically Heavy 

During the Relevant Period 

The Commission has substantial discretion in determining how to prioritize the many 

matters it considers. Courts therefore afford deference to the Commission when reviewing its 

handling of administrative complaints. Rose, 806 F.2d at 1092. The Commission’s prior 

 

14 Plaintiff also speculates about the future by arguing that the allegations in the 

administrative complaint “constitute a substantial and ongoing threat to the integrity of the 

election system” (Giffords Mem. at 11), relying on the TRAC factor regarding interests 

prejudiced by delays, see 750 F.2d at 80. But plaintiff provides no information indicating that 

the administrative respondents have continued to engage in the conduct at issue here or that they 

have plans to do so in the future. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 25 of 38
20 

memorandum cited public data showing the heavy enforcement workload the agency has 

experienced during the time that the enforcement complaints at issue here have been pending. 

(FEC Mem. at 18-27.) 

 Plaintiff acknowledges that the Commission is entitled to deference. (Giffords Mem. at 

12 (conceding that the “FEC correctly notes that it is ‘entitled to deference in the allocation of its 

resources to meet its statutory obligations.’” (quoting DSCC v. FEC, No. 95-0349-JHG, 1996 

WL 34301203 at *5 (D.D.C. Apr. 17, 1996).) Nonetheless, plaintiff’s approach suggests that it 

considers that deference to be limited to the actions of Commission staff, not the Commissioners 

themselves. (Giffords Mem. at 12-16 (focusing entirely on the actions of the Commissioners 

after they received the First General Counsel’s Report in May 2019).) But this distinction does 

not exist in the law. It was less than two months between when the Report was circulated and 

when the Commission lost its quorum to consider these matters. Plaintiff argues that this twomonth period “is not excused by resource constraints, competing priorities, or lack of available 

information.” (Giffords Mem. at 12.) But plaintiff appears to reach this conclusion by assuming 

that it is only the staff of the Office of General Counsel that have resource constraints or 

competing priorities, and not the Commissioners themselves. To the contrary, just as the Office 

of General Counsel must balance priorities and time among competing matters, so must the 

Commissioners and their office staff. Commissioners must engage with multiple other General 

Counsel’s reports and background materials prior to each meeting, where numerous enforcement 

matters are routinely considered, in addition to many other Commission responsibilities such as 

overseeing litigation, drafting advisory opinions, and promulgating new regulations. Indeed, the 

evidence shows that the Commission meetings during this two-month time period had extensive 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 26 of 38
21 

agendas, and some of the pending matters were of higher priority than those at issue here. And 

of course, the act of voting on whether there is reason to believe a violation has occurred in 

complex matters like these is far from a ministerial one. 

Thus, this Court should resist plaintiff’s apparent invitation to place its matters “at the 

head of the queue” for Commissioner priorities. In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. 

Cir. 1991). The Commissioners who lead the agency, like the agency as a whole, are “in a 

unique — and authoritative — position to view its projects as a whole, estimate the prospects for 

each, and allocate its resources in the optimal way.” Id. at 76. Plaintiff attempts to make much 

of the fact that at least one Commissioner requested that colleagues hold over these matters for a 

few meetings before voting, (Giffords Mem. at 13-15), but such a request is certainly reasonable 

under the circumstances, and not something that courts are in a position to second-guess. Rose, 

806 F.2d at 1091 & n.17 (“[i]t is not for the judiciary to ride roughshod over agency procedures 

or sit as a board of superint[e]nce” because “[we] are not here to run the agencies.”) 

Plaintiff cites three cases from decades ago to support its claim that a Commission vote 

on a reason-to-believe determination for the matters at issue here can be made “within a month” 

or less of receiving the First General Counsel’s Report. (Giffords Mem. at 15-16 (citing Rose, 

806 F.2d at 1082, 1091; DSCC, 1996 WL 34301203 at *2 (D.D.C. Apr. 17, 1996); and Citizens 

for Percy ’84 v. FEC, No. 84-2653, 1984 WL 6601 at *1 (D.D.C. Nov. 19, 1984). But not every 

“reason to believe” vote is identical, and plaintiff makes no effort to show that the Commission 

in those cases was faced with matters involving similar levels of legal and factual complexity. 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 27 of 38
22 

Nor has plaintiff shown that any court would have found it unreasonable had the Commission in 

those cases taken some additional time to make a decision.15

3. The Matters at Issue Are Legally and Factually Complex 

 The Commission’s careful deliberation in these matters is also reasonable because the 

matters are legally and factually complex, and they require a significant amount of time to 

evaluate. Even plaintiff acknowledges that the four administrative complaints it has filed 

“involve lengthy and detailed factual allegations regarding the nature of the common vendor 

scheme employed by the NRA and its affiliates.” (Giffords Mem. at 17; see also Pl.’s Compl. 

for Declaratory & Injunctive Relief (“Compl.”) at 1 (Docket No. 1) (a “complex network of shell 

corporations”); Compl. at 2 (“complicated scheme to coordinate” leading to “campaign finance 

 

15 Plaintiff also suggests that it was improper for the Commission to invoke privilege at the 

depositions taken of its staff with respect to which Commissioners required additional time to 

consider the matters. (Giffords Mem. at 14-15). As they previously put it, however, if they had 

an objection regarding a particular deposition response, their “remedy lies in standard discovery 

procedures,” (Pl.’s Reply in Supp. of Mot. for Discovery under Rule 56(d) (“Giffords 56(d) 

Reply”) at 9 (Docket No. 33)), and they failed to use such procedures. Individual comments by 

Commissioners and their staff are in fact protected by, inter alia, the deliberative process 

privilege so as not to inhibit candid exchanges as courses of action are considered. Loving v. 

Dept. of Defense, 550 F.3d 32, 38 (D.C. Cir. 2008). Plaintiff had represented that their 

depositions would not delve into “the ‘mental processes’ of the Commissioners” (Giffords 56(d) 

Reply at 9), a representation on which the Court relied (Minute Order, Sept. 25, 2019). Counsel 

nevertheless spent much of their nearly eight hours of deposition questioning seeking to learn the 

content of individual, deliberative communications. (See, e.g., Peterson Dep. at 73:6-20, 76:11-

77:4, 79:5-81:5; Kitcher Dep. at 117:10-119:15.) There is no legitimate basis for the plaintiff to 

further invade the agency’s privileged deliberations. Plaintiff makes no attempt to explain why it 

is relevant how many Commissioners were responsible for not holding a vote sooner than 

plaintiff wishes. 

In addition, matters are customarily held over upon the request of a single Commissioner. 

(Kitcher Decl.¶ 12.) It is often thus not clear what views other Commissioners have on requests 

to hold over, and this case was no different. As the agency representative forthrightly explained, 

the views of some Commissioners on whether to vote on the underlying matters at different 

junctures were not clear. (Kitcher Dep. 134:15-134:23, 136:12-136:23.) 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 28 of 38
23 

violations of dramatic scale”); Compl. at 17 (an “elaborate scheme”).) Requiring more time to 

consider the approximately 900 pages of complaints and responses in these complex matters 

while steadily progressing through dozens of other matters was eminently reasonable. The 

complicated nature of these matters is a critical factor demonstrating that the agency has acted 

reasonably here. See Common Cause, 489 F. Supp. at 744 (a factor is the information available 

to the agency, including the novelty of the issues involved). The fact that four MURs were 

appropriately considered together is another factor indicating reasonableness. Nat’l. Right to 

Work Comm. v. FEC, No. 84-2955, slip op. at 12 (Oct. 31, 1984), FEC Exh. 5 (finding the 

merger of matters “an action that appears to be both sound and efficient, in light of the 

substantial similarity of issues and entities involved in the two cases”). 

Plaintiff argues nonetheless that the issues involved in these matters are not “novel,” and 

therefore they could have been voted on quickly, because the Commission has previously 

confronted many other matters involving coordinated expenditures. (Giffords Mem. at 17-18.) 

But the fact that the agency has previously handled coordinated expenditure matters does not 

mean it has all the information it needs in these four new matters, nor that the specific legal and 

factual issues in the matters, which involve many respondents and common vendor allegations 

reaching across multiple election cycles, are simple or familiar. Not every case involving 

allegations of coordinated expenditures is alike. Because the consideration of such cases is 

highly fact-specific, it is not merely a question of whether it is unlawful for parties to coordinate 

expenditures. In fact, the very case cited by plaintiff in support of its position notes that such 

cases “involve analysis of a number of factors.” (Giffords Mem. at 18 (quoting Percy, 1984 WL 

6601 at *4).) 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 29 of 38
24 

Plaintiff also argues that the fact that an investigation might be burdensome or timeconsuming is irrelevant to the Commission’s determination as to whether to start an investigation 

(Giffords Mem. at 18), but to the contrary, that is a key factor underlying the wide discretion 

afforded to the agency in allocating its resources. In fact, if a particular matter would consume 

an inordinate amount of the Commission’s limited investigatory resources, and the Commission 

believes such resources would be better directed elsewhere, the agency has unreviewable 

discretion to decline to conduct such an investigation. See Citizens for Responsibility & Ethics 

in Washington v. FEC, 892 F.3d 434, 441 (D.C. Cir. 2018). As a result, the scope and burden of 

a potential investigation is among the many factors that Commissioners properly consider at the 

reason-to-believe stage. 

4. Human Health and Welfare Are Not Directly at Stake Here 

The Court should similarly decline to intervene in the Commission’s enforcement of 

these administrative matters because of the nature of the matters. See TRAC, 750 F.2d at 80 

(delay is less tolerable “when human health and welfare are at stake”). Campaign finance 

matters are of course important, but they involve economic and political issues. Allowing these 

matters to proceed in the ordinary fashion does not directly jeopardize the health or welfare of 

plaintiff or any other person. In such a situation, that TRAC factor also plainly supports a finding 

that the Commission has acted lawfully. 

C. A Remand Is Not Warranted Because Compliance Would Likely Not Be 

Possible and Would Lead to Results that Are Inconsistent With the Statutory 

Scheme 

1. A Remand Should Not Be Ordered Where the Agency Has No 

Possibility of Compliance Absent Congressional Intervention 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 30 of 38
25 

The D.C. Circuit has repeatedly instructed that courts may not require an agency to 

render performance that is impossible. American Hosp. Ass’n v. Price, 867 F.3d 160, 167 (D.C. 

Cir. 2017) (reviewing a mandamus order). “[I]t is not appropriate for a court — contemplating 

the equities — to order a party to jump higher, run faster, or lift more than she is physically 

capable.” Id. at 168. Before issuing an equitable remedy like a remand, “the Court should 

determine in the first instance whether, in fact, lawful compliance” will be possible. Id. 

Just as this principle “extends to cases where the impossibility is the result of insufficient 

congressional appropriations,” id., it includes cases like this where the impossibility of carrying 

out a remand is caused by insufficient nomination and approval by the political branches. The 

D.C. Circuit has applied this principle, for example, to require that a district court determine 

whether practical challenges, such as resource constraints, might prevent an agency from 

meeting a statutory deadline for publishing certain guidelines, Nat. Res. Def. Council, Inc. v. 

Train, 510 F.2d 692, 713 (D.C. Cir. 1974), or resolve a backlog of appeals of denied Medicare 

claims, Price, 867 F.3d at 168-70. And given the lack of FEC Members to have a quorum to 

address the matters at issue here, it is even clearer than in those budget-related cases that 

compliance with a remand for action within 30 days would not be possible, at least barring 

unexpected nominations and/or confirmations of a pending nominee within 30 days. 

2. No Private Right of Action Should Be Granted at This Time Because 

There Will Have Been No Commission or Judicial Determination as 

to the Merits of Plaintiff’s Claims about the Respondents’ Activities 

Because the Commission currently lacks a quorum, this case differs from other cases 

alleging unlawful delay or dismissal under 52 U.S.C. § 30109(a)(8), counseling strongly against 

any order that could lead to a private right of action even if the Court does find unreasonable 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 31 of 38
26 

delay. In a typical case of this kind, a grant of summary judgment to plaintiff would at most 

result in a remand to the Commission. If the Court were to determine that the Commission has 

acted contrary to law by unreasonably delaying action, or by unlawfully dismissing an 

administrative complaint, the Court may “direct the Commission to conform with such 

declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). If the agency fails to act within the 

required 30-day period, plaintiffs obtain a private right of action to sue the respondents directly. 

Id. That has rarely occurred because in almost all cases, the Commission has acted quickly to 

conform to such a judicial declaration. See, e.g., CREW v. FEC, 299 F. Supp. 3d 83, 92 (D.D.C. 

2018) (“parties stipulated to dismissal of the claims” after FEC acted on remand); Level the 

Playing Field v. FEC, 381 F. Supp. 3d 78, 110 (D.D.C. 2019) (granting summary judgment to 

FEC after Commission acted on remand). 

Here, however, an order that the Commission conform to a declaration that it acted 

“contrary to law” could result in a private right of action for Giffords not because the agency did 

not wish to comply with the order, but because the Commission simply lacked the required votes 

to do so. Therefore, even if this Court were to find unreasonable delay, rather than remand the 

Court should await the restoration of a quorum and stay the case until that time. Such an order is 

permissible under section 30109(a)(8)(C), which provides that the court “may” direct the 

Commission to comply with a declaration that it has acted contrary to law, but does not require 

that the court make that order, and certainly does not require that it be made under any specific 

time frame. 

Plaintiff argues that Congress created the private right of action presumably so that an 

intransigent FEC “would not spell the end of enforcement of campaign finance laws.” (Giffords 

Mem. at 22.) But as explained above, supra pp. 24-25, the situation at hand is not one in which 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 32 of 38
27 

the FEC is refusing to comply with a judicial directive. The Commission is incapable of acting 

due to lack of a quorum, a situation that could potentially be resolved by Congress at any time. 

At least at this time, the interests of the Commission and the administrative respondents in 

avoiding a private lawsuit outweigh the interest of plaintiff in obtaining a private right of action. 

3. FECA Contemplates Participation by the FEC in Enforcement 

Determinations and Developing Applicable Law 

The enforcement and regulatory procedures in FECA are intended to promote the interest 

of evenhanded, non-partisan application of federal campaign finance laws. By placing the FECA 

civil enforcement power with a single administrative agency, Congress assured that penalties for 

violations would not be haphazard, but could be effectively tailored so that more severe 

violations would result in more severe punishments, and less serious violations would result in 

less serious punishments. The Commission’s authority to determine whether to pursue an 

enforcement matter, as well as the independent litigation authority granted to the Commission, 

helps to promote coherent development of the law. Congress granted the Commission 

“exclusive civil jurisdiction.” 

While it is true that Congress granted a private right of action in limited circumstances, 

Congress permitted such an action only after a remand to give the Commission an opportunity to 

correct itself. 52 U.S.C. § 30109(a)(8)(C). The requirement of a remand indicates that 

Congress’s intention was to limit the use of private rights of action to only those circumstances 

in which the Commission refused to comply with a court order. This situation stands in contrast 

to other contexts in which a private right of action is available. See. e.g., 29 C.F.R. § 1601.28 

(entitling claimants to bring private discrimination lawsuits whenever the EEOC provides notice 

of a right to sue due to a probability that the EEOC will be unable to process a complaint within 

180 days). 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 33 of 38
28 

The Commission may decide not to file a civil action against an administrative 

respondent if an investigation reveals a lack of probable cause of a violation, or because the 

respondent enters into a conciliation agreement with the Commission, or merely as a matter of 

prosecutorial discretion. If this Court were to grant summary judgment and a private right of 

action to Giffords, that would mean the Commission would not apply its ordinary processes for 

determining whether these particular matters warrant further enforcement activity. It could lead 

to the administrative respondents suffering a greater penalty, or enjoying a lesser penalty, than 

they might have received under ordinary circumstances. It would allow plaintiff to make legal 

arguments about the interpretation of FECA and Commission regulations that may be 

inconsistent with those of the Commission, leading to inconsistent judicial results and confusion 

in the regulated community. Each of these outcomes would be inconsistent with the ordinary 

operation of the statutory scheme, under which Congress envisioned the FEC having an 

opportunity to fully consider each matter remanded in light of its priorities and procedures. 

4. The Administrative Respondents Have an Interest In Maintaining the 

Ordinary Procedures That Congress Created to Promote Fairness 

and Ensure Confidentiality 

In passing FECA Congress was concerned not only with enforcement of the law, but also 

with assuring that respondents who were accused of breaking the law would be protected from 

unfair partisan activity and that respondents would benefit from confidentiality until the matter 

reached the end of the administrative process. These concerns extend even to the composition of 

the Commission itself, which is comprised of six Commissioners, but cannot have more than 

three Commissioners from a single political party. 52 U.S.C. § 30106(a)(1). Permitting a 

private right of action in the current circumstances would threaten these legislative safeguards, 

particularly where that action would be pressed by a party like Giffords, which has repeatedly 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 34 of 38
29 

emphasized the adversity of its political interests to those of key respondents in the matters. 

(Compl. ¶ 8.) 

This concern about partisan law enforcement is most evident in the numerous protections 

for respondents built into the enforcement procedures in FECA, including the provision under 

which Giffords has brought this case. See Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per 

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

complainants but also to respondents”). The Commission is not permitted to conduct an 

investigation until after an administrative respondent has been notified and given an opportunity 

to “demonstrate, in writing ... that no action should be taken.” 52 U.S.C. § 30109(a)(1). An 

investigation cannot begin until at least four Commissioners find reason to believe a violation 

has occurred.” 52 U.S.C. § 30109(a)(2). After an investigation is completed, an administrative 

respondent is afforded yet another opportunity to respond in writing to the recommendation of 

the FEC’s Office of General Counsel. 52 U.S.C. § 30109(a)(3). At that point, at least four 

Commissioners must agree that there is “probable cause” that a violation occurred before any 

further action is taken.” 52 U.S.C. § 30109(a)(4)(A)(i). If four Commissioners agree that there 

is probable cause, there is a mandatory conciliation period of between 30 and 90 days “to correct 

or prevent such violation by informal methods.” Id. Only if such conciliation is unsuccessful 

can the Commission “institute a civil action for relief,” and that step also requires “an affirmative 

vote of 4 of its” Commissioners. 52 U.S.C. § 30109(a)(6)(A). Finally, FECA requires 

confidentiality (unless the respondent indicates otherwise in writing) while the matter is being 

considered, investigated, and conciliated. 52 U.S.C. § 30109(a)(4)(B)(i); 52 U.S.C. § 

30109(a)(12). 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 35 of 38
30 

If this Court were to grant plaintiff a private right of action, the administrative 

respondents could find themselves as defendants in a federal lawsuit without having been 

provided with most of these procedural protections. As explained above, neither the 

Commission nor this Court will have determined that there is reason to believe that the 

administrative respondents violated the law. In the rare instances when a private right of action 

was pursued, the agency had at least had an opportunity to conform to the initiating order and 

maintain the ordinary protective procedures. But in this case, if a private right of action is 

granted now, the administrative respondents could be subjected to the burden and expense of 

litigation, in addition to allegations in a public court proceeding during an election year, without 

the possibility of FEC conformance to the order. 

 Thus, the Court should be mindful not only of the consequences to plaintiff of the timing 

of the MURs, but also the consequences to the Commission and the administrative respondents if 

all of the ordinary steps the statute envisions are not possible and plaintiff obtains a private right 

of action. Even if the Court does find unreasonable delay, this case should be stayed until a 

quorum has been restored in advance of any remand in order to be consistent with the scheme 

FECA contemplates. 

II. CONCLUSION 

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

can be granted, and the Complaint should be dismissed. Alternatively, because there is no 

genuine dispute as to any material fact and the facts make evident that Commission is entitled to 

judgment as a matter of law, summary judgment should be granted to the Commission. 

Respectfully submitted, 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 36 of 38
31 

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

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Seth Nesin 

Associate General Counsel Seth Nesin 

kdeeley@fec.gov Attorney 

snesin@fec.gov 

January 10, 2020 FEDERAL ELECTION COMMISSION 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 37 of 38
CERTIFICATE OF SERVICE 

I, Seth Nesin, an attorney of record, hereby certify that I caused a copy of the foregoing 

FEC’s Reply in Support of Its Motion to Dismiss, or in the Alternative, for Summary Judgment 

and Opposition to Plaintiff’s Cross-Motion for Summary Judgment, to be filed under seal with 

the Clerk of the Court via its ECF system this 10th of January, 2020. I also certify that I served a 

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

delivery this date pursuant to their consent to such service. 

 /s/ Seth Nesin____________ 

 Seth Nesin 

 

Case 1:19-cv-01192-EGS Document 59 Filed 01/24/20 Page 38 of 38