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 

DEFENDANT-INTERVENORS’ 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR 

DEFAULT JUDGMENT AGAINST 

DEFENDANT FEDERAL ELECTION 

COMMISSION 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 1 of 34
TABLE OF CONTENTS 

Page 

i 

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

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

STANDARD OF REVIEW ............................................................................................................ 5

ARGUMENT .................................................................................................................................. 7

I. Plaintiff lacks standing. ........................................................................................... 7

II. The equitable doctrine of laches bars Plaintiff’s claim for relief. ........................... 8

III. Entry of default judgment against the FEC would severely prejudice DefendantIntervenors. ........................................................................................................... 10

IV. Plaintiff is not entitled to a default judgment because it has failed to establish a 

claim or right to relief under FECA. ..................................................................... 13

A. Plaintiff’s claims are not credible because they are speculative and 

unsupported by evidence. ........................................................................ 14

B. Plaintiff has failed to demonstrate that the conduct challenged in 

Plaintiff’s administrative complaint poses an urgent and ongoing threat, 

or has prejudiced Plaintiff’s interests. ..................................................... 16

C. The FEC has lacked sufficient resources to take public action on 

Plaintiff’s administrative complaint. ....................................................... 18

D. The claims presented in the administrative complaint are novel and 

complex. .................................................................................................. 19

E. Plaintiff’s complaint has not been pending at the FEC for an unreasonable 

period of time. ......................................................................................... 21

V. Plaintiff has otherwise failed to establish that entry of default judgment is 

warranted against the FEC. ................................................................................... 22

CONCLUSION ............................................................................................................................. 25

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 2 of 34
TABLE OF AUTHORITIES 

Page(s) 

ii 

CASES

Acree v. Republic of Iraq, 

658 F. Supp. 2d 124 (D.D.C. 2009) .........................................................................................23 

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

80 F. Supp. 3d 198 (D.D.C. 2015) .............................................................................................7 

Baade v. Price, 

175 F.R.D. 403 (D.D.C. 1997) ...................................................................................................5 

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

233 F. Supp. 2d 31 (D.D.C. 2002) .....................................................................................22, 23 

Blank v. Islamic Republic of Iran, 

No. 19-3645 (BAH), 2021 WL 3021450 (D.D.C. July 17, 2021) .............................................5 

Campaign Legal Ctr. v. FEC, 

507 F. Supp. 3d 79 (D.D.C. 2020) .............................................................................................9 

Campaign Legal Ctr. v. FEC, 

334 F.R.D. 1 (D.D.C. 2019)* .......................................................................................11, 22, 24 

Campaign Legal Ctr. v. FEC, 

No. 20-cv-01778 (D.D.C. Oct. 14, 2020) ................................................................................12 

Candido v. District of Columbia, 

242 F.R.D. 151 (D.D.C. 2007) .................................................................................................10 

Cap. Yacht Club v. Vessel AVIVA, 

228 F.R.D. 389 (D.D.C. 2005) .............................................................................................6, 23 

Carvajal v. Drug Enf’t Agency, 

246 F.R.D. 374 (D.D.C. 2007) .............................................................................................5, 16 

Combs v. Nick Garin Trucking, 

825 F.2d 437 (D.C. Cir. 1987) .................................................................................................22 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ...................................................................................................4 

Common Cause v. FEC, 

489 F. Supp. 738 (D.D.C. 1980)* ................................................................................13, 18, 21 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 3 of 34
TABLE OF AUTHORITIES 

(continued) 

Page(s) 

iii 

CREW v. FEC, 

No. 19-cv-02753 (D.D.C. Apr. 4, 2020) ..................................................................................12 

District of Columbia v. Merit Sys. Prot. Bd., 

762 F.2d 129 (D.C. Cir. 1985) .................................................................................................10 

Est. of Botvin ex rel. Ellis v. Islamic Republic of Iran, 

772 F. Supp. 2d 218 (D.D.C. 2011) ...........................................................................................6

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ...................................................................................................................18 

FEC v. Rose, 

806 F.2d 1081 (D.C. Cir. 1986)* .................................................................................18, 21, 22 

Frow v. De La Vega, 

82 U.S. 552 (1872)* .................................................................................................................12 

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

675 F. Supp. 2d 104 (D.D.C. 2009) .........................................................................................22 

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

843 F.3d 958 (D.C. Cir. 2016) .................................................................................................10 

H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 

432 F.2d 689 (D.C. Cir. 1970)* .............................................................................................2, 5 

Haskins v. U.S. One Transp., LLC, 

755 F. Supp. 2d 126 (D.D.C. 2010) .........................................................................................23 

Herbin v. Seau, 

317 F. Supp. 3d 568 (D.D.C. 2018) ...........................................................................................7

Hill v. Republic of Iraq, 

328 F.3d 680 (D.C. Cir. 2003) ...................................................................................................6 

Hudson v. Ashley, 

411 A.2d 963 (D.C. 1980) .......................................................................................................12 

In re Nat’l Cong. Club, 

No. 84-5701, 1984 WL 148396 (D.C. Cir. Oct. 24, 1984) ......................................................13 

Jeanblanc v. Oliver Carr Co., 

No. 94–7118, 1995 WL 418667 (D.C. Cir. June 21, 1995) .......................................................8 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 4 of 34
TABLE OF AUTHORITIES 

(continued) 

Page(s) 

iv 

Keegel v. Key West & Caribbean Trading Co., Inc., 

627 F.2d 372 (D.C. Cir. 1980)* ...................................................................................23, 24, 25 

Means v. Reich, 

No. 98-5182, 1998 WL 796417 (D.C. Cir. Oct. 16, 1998) ........................................................5 

Nat’l R.R. Passenger Corp. v. Morgan, 

536 U.S. 101 (2002) ...................................................................................................................8 

Pro–Football, Inc. v. Harjo, 

415 F.3d 44 (D.C. Cir. 2005) .....................................................................................................8 

Schneider v. Dumbarton Devs., Inc., 

767 F.2d 1007 (D.C. Cir. 1985) ...............................................................................................10 

Scimed Life Sys., Inc. v. Medtronic Ave Inc., 

297 F. Supp. 2d 4 (D.D.C. 2003) .......................................................................................10, 22 

Shatsky v. Syrian Arab Republic, 

795 F. Supp. 2d 79 (D.D.C. 2011) ...........................................................................................24

Shays v. Fed. Election Comm’n, 

528 F.3d 914 (D.C. Cir. 2008) .................................................................................................19 

SpeechNow.org v. Fed. Election Comm’n, 

599 F.3d 686 (D.C. Cir. 2010) .................................................................................................19 

Stansell v. Republic of Cuba, 

217 F. Supp. 3d 320 (D.D.C. 2016) ...........................................................................................6

Stockman v. FEC, 

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

1998) ....................................................................................................................................2, 21 

Strong-Fisher v. LaHood, 

611 F. Supp. 2d 49 (D.D.C. 2009)* .................................................................................6, 7, 23 

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

750 F.2d 70 (D.C. Cir. 1984)* .....................................................................................13, 14, 18 

Thuneibat v. Syrian Arab Republic, 

167 F. Supp. 3d 22 (D.D.C. 2016) .......................................................................................6, 16 

Webb v. District of Columbia, 

146 F.3d 964 (D.C. Cir. 1998) ...................................................................................................5 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 5 of 34
TABLE OF AUTHORITIES 

(continued) 

Page(s) 

v 

Whelan v. Abell, 

48 F.3d 1247 (D.C. Cir. 1995) .................................................................................................24 

Whelan v. Abell, 

953 F.2d 663 (D.C. Cir. 1992) .................................................................................................12 

STATUTES

5 U.S.C. § 552(a)(2) .......................................................................................................................17 

5 U.S.C. § 552(a)(5) .......................................................................................................................17 

52 U.S.C. § 30101(17) ...................................................................................................................16 

52 U.S.C. § 30106(c) .............................................................................................................3, 9, 15 

52 U.S.C. § 30107(a)(6)-(9) .........................................................................................................3, 9 

52 U.S.C. § 30109(a)(2) .....................................................................................................14, 15, 19 

52 U.S.C. § 30109(a)(2)-(4) .........................................................................................................3, 9 

52 U.S.C. § 30109(a)(8)(A) .........................................................................................................4, 9 

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

52 U.S.C. § 30116(a) .....................................................................................................................16 

52 U.S.C. § 30116(d) .....................................................................................................................16 

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

RULES

Fed. R. Civ. P. 55(e) ........................................................................................................................5 

REGULATIONS

11 C.F.R. 110.1 ..............................................................................................................................16 

OTHER AUTHORITIES

Amended Certification, MURs 6940, 7097, 7146, 7160, and 7193, available at 

https://www.fec.gov/data/legal/matter-under-review/7146/ (signed June 13, 

2019) ........................................................................................................................................20 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 6 of 34
TABLE OF AUTHORITIES 

(continued) 

Page(s) 

vi 

10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2690 (4th 

ed.) ...........................................................................................................................................12 

10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 

& Procedure § 2702 (4th ed.) ....................................................................................................5 

Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 

50702 (Aug. 2, 2016) ...............................................................................................................17 

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

https://www.fec.gov/updates/matthew-petersen-depart-federal-electioncommission/ (Aug. 26, 2019)...............................................................................................3, 19 

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/cms-content/documents/2020-12-QuorumRestoration-Statement.pdf (December 9, 2020) ......................................................................19 

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 (Dec. 21, 2000) .....................................14 

Statement of reasons, MUR 7146, available at 

https://www.fec.gov/data/legal/matter-under-review/7146/ (Aug. 21, 2019) .........................20 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 7 of 34
vii 

TABLE OF ABBREVIATIONS 

American Bridge 21st Century Foundation AB Foundation 

American Bridge 21st Century PAC AB PAC 

Correct the Record CTR (or CTR PAC) 

Federal Election Commission FEC (or the Commission) 

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 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 8 of 34
1 

INTRODUCTION 

 Defendant-Intervenors Correct the Record (“CTR”), Media Matters for America 

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

Century PAC (“AB PAC”), Hillary for America (“HFA”), and David Brock submit this brief in 

opposition to Plaintiff The Patriot’s Foundation’s motion for default judgment against the Federal 

Election Commission (“FEC” or the “Commission”). Plaintiff is not entitled to a default judgment 

against the FEC because it has not shown that it has a claim of right under the Federal Election 

Campaign Act (“FECA”), as required by Federal Rule of Civil Procedure 55(d). To the contrary, 

and as discussed at length in Defendant-Intervenors’ motion for judgment on the pleadings, 

Plaintiff lacks standing to bring this action; its claim is barred by the equitable doctrine of laches; 

and Plaintiff has failed to provide this Court with sufficient evidence to demonstrate that the FEC’s 

delay in taking public action thus far is contrary to law. 

 Moreover, at this early point in this litigation, and given Plaintiff’s own dilatory conduct, 

it is simply implausible that Plaintiff has been prejudiced by the FEC’s delay, which can be 

reasonably explained by the fact that the FEC lacked a quorum of four Commissioners for seven 

of the fifteen months that Plaintiff’s complaint has been pending with the agency. The FEC’s lack 

of quorum rendered it unable to investigate Plaintiff’s administrative complaint and left it with a 

significant backlog of cases to work through. By contrast, if this Court grants a default judgment 

against the FEC, then Defendant-Intervenors will be severely prejudiced. A default judgment 

would effectively deprive Defendant-Intervenors of the right to protect their interests—in 

particular, to engage in conciliation with the FEC or avoid a private lawsuit against them—which 

is the entire reason they were permitted to participate in this litigation in the first place. Minute 

Order Granting Motion to Intervene (Oct. 28, 2020) (recognizing that if Defendant-Intervenors 

were not allowed to participate, they “would lose the benefit of the administrative process and 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 9 of 34
2 

therefore impairing their interests”). Default judgments are properly awarded when a litigation is 

effectively halted because of an unresponsive party. See H. F. Livermore Corp. v. 

Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970). That is not the case here; 

Defendant-Intervenors were granted intervention to litigate this case precisely because of the 

FEC’s absence, and they are prepared to continue the case through the Court’s decision on their 

motion for judgment on the pleadings, discovery, and summary judgment proceedings. See ECF 

No.16. This Court has tools available to it should it need information from the FEC to decide the 

merits of this case. See, e.g., Stockman v. FEC, 944 F. Supp. 518, 520 (E.D. Tex. 1996), aff’d as 

modified, 138 F.3d 144 (5th Cir. 1998) (noting that the court ordered the FEC to answer 

interrogatories from the court). 

 For the reasons above and as set forth in more detail herein, Plaintiff’s motion for default 

judgment should be denied. 

BACKGROUND 

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

Plaintiff filed an administrative complaint under FECA, alleging that HFA, former Secretary of 

State Hillary Clinton’s principal campaign committee for the 2016 presidential election, illegally 

coordinated with various organizations and political committees during the 2016 election cycle. 

See ECF No. 1-1. In particular, Plaintiff’s administrative complaint makes the following 

hodgepodge of 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 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 10 of 34
3 

been reported as in-kind contributions to HFA; and (4) AB PAC made prohibited in-kind 

contributions to other unnamed Democratic campaigns. See ECF No. 1, ¶ 4. 

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

consolidated response to Plaintiff’s administrative complaint. See ECF No. 10-2. In their response, 

the administrative respondents argued that each of Plaintiff’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. 

The FEC has not yet take public action on Plaintiff’s administrative complaint. However, 

the FEC has not been sitting on Plaintiff’s complaint for fifteen straight months, as Plaintiff has 

portrayed to the Court. See ECF No. 20 at 10 (stating that a “delay of 15 months to gather 

information is unreasonable”). Indeed, for seven months before Plaintiff 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. See FEC, “Matthew Petersen to depart Federal Election 

Commission,” (Aug. 26, 2019) https://www.fec.gov/updates/matthew-petersen-depart-federalelection-commission/; see also 52 U.S.C. § 30109(a)(2)-(4) (requiring the FEC to have a quorum

of four members in order to be able to vote to take action to investigate and conciliate a complaint); 

52 U.S.C. §§ 30106(c), 30107(a)(6)-(9) (requiring the FEC to have a quorum of four members in 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 11 of 34
4 

order to vote to defend the agency in legal proceedings). As for administrative complaints such as 

the one filed by Plaintiff, if the Commission does not find reason to believe that a respondent 

violated FECA through an affirmative vote of at least four Commissioners within five years of the 

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

enforcement against, that respondent. Id. § 30145. The FEC understandably has a backlog of cases 

to resolve given the long period of time it lacked quorum before and after Plaintiff’s complaint 

was filed. See 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.”). At this point, the FEC has only 

been able to maintain a quorum for eight of the fifteen months that Plaintiff’s administrative 

complaint has been pending. 

 Yet, 127 days after filing its administrative complaint with the FEC—just seven days after 

the 120-day jurisdictional minimum threshold for filing a lawsuit under FECA had passed—

Plaintiff filed this lawsuit. See ECF No. 1. Plaintiff’s nine-page complaint alleges a single 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, ¶ 40. The complaint barely includes 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. Defendant-Intervenors thus moved to intervene to defend their 

interests and were granted intervention by this Court on October 28, 2020. Minute Order Granting 

Motion to Intervene (Oct. 28, 2020). Apparently in no rush for the FEC to resolve this case, 

Plaintiff subsequently moved to stay this matter for a total of 180 days, a request this Court granted. 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 12 of 34
5 

See Minute Orders of Nov. 30, 2020 and Mar. 30, 2021. The stay was lifted on June 29, 2021, after 

which Defendant-Intervenors filed a motion for judgment on the pleadings, ECF No. 21, and 

Plaintiff filed the instant motion for default judgment against the FEC, ECF No. 20. 

 Because Plaintiff lacks standing, the relief it seeks is barred by the laches doctrine, and 

because the FEC’s failure to act is not contrary to law, Defendant-Intervenors remain committed 

to defending the suit on the merits. Plaintiff’s motion for default judgment should be denied. 

STANDARD OF REVIEW 

 Default judgment is a drastic remedy of last resort, reserved for extreme situations where 

the adversary process has literally been halted because of an essentially unresponsive party. See 

H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970); 

cf. Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (noting because of “drastic 

nature of a default judgment,” it “must be a sanction of last resort”). That is because default 

judgment counteracts the “strong policy favoring the adjudication of a case on its merits,” Baade 

v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997), “depriv[ing] a party completely of its day in court,” 

Webb, 147 F.3d at 971. Thus, in all cases, entry of a default judgment is not automatic, nor does 

“the procedural posture of default . . . relieve a federal court of its typical obligations,” including 

its obligation to determine it has jurisdiction over the matter or parties. Blank v. Islamic Republic 

of Iran, No. 19-3645 (BAH), 2021 WL 3021450, at *6 (D.D.C. July 17, 2021). 

 Those principles apply with even greater force where, as here, the defendant is the 

government. See Means v. Reich, No. 98-5182, 1998 WL 796417, at *1 (D.C. Cir. Oct. 16, 1998)

(citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & 

Procedure § 2702, at 178-80 (4th ed.) (“[W]hen the government’s default is due to a failure to 

plead or otherwise defend, the court typically either will refuse to enter a default or, if a default is 

entered, it will be set aside.”)). In such cases, the moving party must “establish[] a claim or right 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 13 of 34
6 

to relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(e); see also Carvajal v. Drug Enf’t 

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

United States absent an independent factual showing of a meritorious claim.”). 

 Plaintiff incorrectly characterizes its evidentiary burden as not “an especially high one.” 

ECF No. 20 at 6. In reality, the inquiry requires a “thorough review of the plaintiff’s allegations 

and the factual evidence presented,” Stansell v. Republic of Cuba, 217 F. Supp. 3d 320, 336 

(D.D.C. 2016) (cleaned up), and courts must draw their “findings of fact and conclusions of law 

from admissible testimony in accordance with the Federal Rules of Evidence,” Thuneibat v. Syrian 

Arab Republic, 167 F. Supp. 3d 22, 33 (D.D.C. 2016). Additionally, all doubts should be resolved 

in the favor of the party against whom default is sought. See Cap. Yacht Club v. Vessel AVIVA, 

228 F.R.D. 389, 393 (D.D.C. 2005). To establish a claim or right to relief, the moving party must 

do more than point to unsupported factual allegations. See Stansell, 217 F. Supp. 3d at 336 (noting 

courts should not “unquestioningly accept a complaint’s unsupported allegations as true”). That is 

particularly true where, as here, the moving party’s allegations are not “[un]controverted” because 

an opposing party is actively challenging the merits of those allegations. Thuneibat, 167 F. Supp. 

3d at 33; see also ECF No. 21.1 Additionally, the moving party must establish that the court has 

jurisdiction over the claims and the parties, otherwise the moving party “has failed to carry her 

1

 Case law regarding default judgment motions against other countries is relevant here because the 

standard used to determine whether a party moving for default judgment has established a claim 

or right to relief under the statute permitting a court to enter a default judgment against a foreign 

state is identical to the standard for entry of default judgments against the United States. See Hill 

v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003); Est. of Botvin ex rel. Ellis v. Islamic 

Republic of Iran, 772 F. Supp. 2d 218, 227 (D.D.C. 2011) (“This ‘satisfactory to the court’ standard 

is identical to the standard for entry of default judgments against the United States under Federal 

Rule of Civil Procedure 55(d).”). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 14 of 34
7 

burden” and “the motion for default judgment must be denied.” Strong-Fisher v. LaHood, 611 F. 

Supp. 2d 49, 52 n.2 (D.D.C. 2009). 

 In sum, because the Court lacks jurisdiction to consider Plaintiff’s action to begin with; 

because Plaintiff has not presented evidence that establishes a claim or right to relief;, because the 

relief requested is itself barred by equity; because Defendant-Intervenors stand ready to litigate the 

case even without the action of the FEC; and because entering default judgment would serve only 

to prejudice Defendant-Intervenors, Plaintiff’s motion should be denied. 

ARGUMENT 

 Plaintiff lacks standing and has not provided sufficient evidence that the FEC’s failure to 

take public action on its complaint is contrary to law. Further, the relief sought by Plaintiff is barred 

by the equitable doctrine of laches. Plaintiff has thus not satisfied its burden for default judgment 

against the FEC because the Plaintiff has failed to establish a claim or right to relief under FECA. 

This Court should deny Plaintiff’s motion for default judgment. 

I. Plaintiff lacks standing. 

 As a threshold matter, Plaintiff is not entitled to default judgment until it has demonstrated 

that the Court has jurisdiction over its claims. See Herbin v. Seau, 317 F. Supp. 3d 568, 571 

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

evidence establishing the court’s jurisdiction). When a party moving for default judgment “has not 

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

the party “has failed to carry her burden” and “the motion for default judgment must be denied.” 

Strong-Fisher, 611 F. Supp. 2d at 52 n.2; see also Auleta v. United States Dep’t of Just., 80 F. 

Supp. 3d 198, 199 (D.D.C. 2015) (granting motion to dismiss pursuant to Rule 12(b)(1) and 

consequently denying plaintiff’s motion for default judgment against the Department of Justice). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 15 of 34
8 

Plaintiff’s complaint fails to allege facts sufficient to establish Article III standing. As 

discussed in detail in Defendant-Intervenors’ motion for judgment on the pleadings, ECF No. 21 

at 11-26, Plaintiff has not suffered a legally cognizable informational injury nor has Plaintiff 

sufficiently articulated the information it would obtain if it were successful on the merits in this 

case. See ECF No. 21 at 11-20. Plaintiff’s administrative complaint seeks legal determinations, not 

new factual information; see id. at 14-18; Plaintiff fails to allege sufficient facts to support its 

claims to informational injury, see id. at 18; and some of the information Plaintiff seeks is already 

publicly available, see id. at 18-20. Plaintiff has also failed to show how the alleged lack of 

information has caused it any concrete harm. See id. at 20-22. Nor was Plaintiff’s alleged injury 

caused by the FEC’s delay. See id. at 22-23. Finally, Plaintiff lacks organizational standing because 

no discrete programmatic activity will be imminently and adversely affected by the FEC’s delay. 

See id. at 23-26. Plaintiff’s motion for default judgment, ECF No. 20, does nothing to remedy its 

inadequate pleadings. Because Plaintiff lacks standing, this Court lacks jurisdiction and Plaintiff 

is not entitled to a default judgment against the FEC. 

II. The equitable doctrine of laches bars Plaintiff’s claim for relief. 

 The equitable doctrine of laches provides an independent reason to deny Plaintiff’s motion 

for default judgment. As Defendant-Intervenors explained in their motion for judgment on the 

pleadings, ECF No. 21, because Plaintiff delayed in filing its administrative complaint, Plaintiff’s 

right to relief is barred by the doctrine of laches, and Plaintiff’s motion for default judgment, ECF 

No. 20, provides no counter to that defense. 

 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. 

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9 

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 (2002)). 

Here, Plaintiff delayed in filing its administrative complaint, which necessarily resulted in 

significant delay in filing this lawsuit because Plaintiff could not file this lawsuit before their 

administrative complaint had been pending at the FEC for at least 120 days. See 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. See ECF No. 

1-1. Because the administrative complaint centers on activity surrounding the 2016 election, 

Plaintiff could have filed it in 2016 or 2017, just as was done by other complainants alleging similar 

wrongdoing. See, e.g., Campaign Legal Ctr., 507 F. Supp. 3d 79, 82 (D.D.C. 2020) (alleging 

impermissible coordination between HFA and CTR PAC). 

But Plaintiff waited to file until spring 2020, less than two years before the statute of 

limitations on its claims would expire, despite knowing that the FEC could not act on Plaintiff’s 

administrative complaint as a result of its lack of quorum, see 52 U.S.C. § 30109(a)(2)–(4), and 

the FEC could not vote to defend the agency in legal proceedings without regaining quorum, see 

52 U.S.C. §§ 30106(c), 30107(a)(6)–(9). Now, Plaintiff is rushing the FEC to take public action. 

If Plaintiff obtains the relief it seeks—ordering the FEC to act on Plaintiff’s complaint within 30 

days—the FEC will be prejudiced by being forced to reorder its administrative priorities, upending 

the deference traditionally afforded administrative agencies. Moreover, as discussed in the section 

immediately below, Defendant-Intervenors will be prejudiced if the FEC is unable to act in 30 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 17 of 34
10 

days because that would allow Plaintiff to bring a civil suit directly against them. Plaintiff’s claim 

is barred by the equitable doctrine of laches. 

III. Entry of default judgment against the FEC would severely prejudice 

Defendant-Intervenors. 

 Plaintiff’s motion for default judgment against the FEC should also be denied because it 

will severely prejudice Defendant-Intervenors. Rule 55 “is designed to empower courts to consider 

the equities that specially arise in a given case.” Gilmore v. Palestinian Interim Self-Gov’t Auth., 

843 F.3d 958, 966 (D.C. Cir. 2016). One such equitable factor is whether entering default judgment 

will prejudice other parties. Cf. Candido v. District of Columbia, 242 F.R.D. 151, 156, 164 (D.D.C. 

2007) (weighing the potential prejudices suffered by the parties). When entering default judgment 

against one party would frustrate the defense of another party, courts refuse to enter default 

judgment, even when it might otherwise be appropriate, which is not this case. See, e.g., Scimed 

Life Sys., Inc. v. Medtronic Ave Inc., 297 F. Supp. 2d 4, 10 (D.D.C. 2003) (“The Court cannot see 

how it is possible to enter default judgment against Martin without also simultaneously, and 

inadvertently, entering judgment against Scimed on the underlying issues of Medtronic’s 

counterclaim.”). 

 Defendant-Intervenors are full participants in this case and are entitled to mount a vigorous 

defense regardless of whether the FEC has entered an appearance. See Schneider v. Dumbarton 

Devs., Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985) (“When a party intervenes, it becomes a full 

participant in the lawsuit and is treated just as if it were an original party” and therefore the 

intervenor has both the duty and the right to “complete adjudication by the federal court of the 

issues in litigation between the intervenor and the adverse party”); cf. District of Columbia v. Merit 

Sys. Prot. Bd., 762 F.2d 129, 132 (D.C. Cir. 1985) (stating that intervenors “assume the status of 

full participants in a lawsuit,” even when the original defendant is dismissed). Indeed, one of the 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 18 of 34
11 

primary reasons this Court granted Defendant-Intervenors’ motion to intervene in this case is that 

if Defendant-Intervenors could not participate, then they “would lose the benefit of the 

administrative process and therefore impairing their interests.” Minute Order Granting Motion to 

Intervene (entered Oct. 28, 2020). If this Court grants a default judgment against the FEC, then 

that could effectively deprive Defendant-Intervenors of the right to protect their interests—in 

particular, to engage in conciliation with the FEC or avoid a private lawsuit against them—which 

is the entire reason they were permitted to participate in this litigation in the first place. 

To date, the FEC has not taken public action on Plaintiff’s administrative complaint, which 

will effectively amount to a dismissal of an administrative complaint five years from the date of 

the alleged violation, see 52 U.S.C. § 30145, a time limit which is quickly approaching in this case, 

see ECF No. 1-1 (alleging violations based on campaign finance reports that were filed in 2016). 

Plaintiff challenges that functional dismissal in this suit, and the default judgment sought by 

Plaintiff would apparently result in an order holding that the FEC’s treatment of the administrative 

complaint is contrary to law and, presumably, would attempt to require the FEC to conform to 

such a judgment within 30 days. As a result, the default judgment may deprive DefendantIntervenors of the FEC’s effective dismissal of the administrative complaint before DefendantIntervenors have had an opportunity to defend the case on the merits. Plaintiff is not entitled to a 

default judgment at Defendant-Intervenors’ expense when Defendant-Intervenors stand ready to 

litigate this case in the absence of the FEC. Cf. Campaign Legal Ctr. V. FEC, 334 F.R.D. 1, 5 

(D.D.C. 2019) (permitting administrative respondents to intervene and defend the FEC’s dismissal 

of the plaintiff’s administrative complaint in the absence of the FEC because the FEC’s dismissal 

of the administrative complaint provides administrative respondents “with a significant benefit, 

similar to a favorable civil judgment”). Notably, neither of the cases Plaintiff cites, in which default 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 19 of 34
12 

judgment was granted against the FEC, involved the appearance of any other party defending the 

action on the merits. See Campaign Legal Ctr. v. FEC, No. 20-cv-01778 (D.D.C. Oct. 14, 2020) 

(ECF No. 14); CREW v. FEC, No. 19-cv-02753 (D.D.C. Apr. 4, 2020). 

 What is more, separate and apart from the resulting prejudice to Defendant-Intervenors, 

the possibility of inconsistent results itself counsels against entry of default judgment. When a case 

involves multiple defendants, the need to guard against the entry of incompatible judgments 

providing conflicting relief independently precludes entry of default judgment. See Whelan v. 

Abell, 953 F.2d 663, 674-75 (D.C. Cir. 1992); 10A C. Wright, A. Miller & M. Kane, Federal 

Practice & Procedure § 2690 (4th ed.). Inconsistent results may occur between the default 

judgment and the ultimate resolution of the case where the defendants face joint liability or, like 

here, have closely related defenses. In Frow v. De La Vega, 82 U.S. 552, 552-53 (1872), for 

example, the plaintiff alleged that multiple defendants had conspired to defraud him of a single 

tract of land. The district court entered default judgment against one unresponsive defendant, 

which vested title to the land in the plaintiff; later, however, it found for the remaining defendants 

on the merits, which vested title to the land in the defendants. Id. Because the two judgments 

provided irreconcilable relief, the Supreme Court vacated the default judgment. Id. at 554. The 

Court explained that “[i]t would be unreasonable to hold, that because one defendant had made 

default, the plaintiff should have a decree even against him, where the court is satisfied from the 

proofs offered by the other, that in fact the plaintiff is not entitled to a decree.” Id. Similarly, the 

court in Hudson v. Ashley, 411 A.2d 963, 969-70 (D.C. 1980), vacated default judgment against 

one defendant because the defenses of another party “were closely related” and therefore “[t]he 

distinct possibility existed” that an appearing party’s proof would have exonerated the defaulting 

party “and required setting aside his default at the end of trial.” The same risk of conflicting results 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 20 of 34
13 

is present here. Entering default judgment against the FEC and awarding Plaintiff declaratory and 

injunctive relief while Defendant-Intervenors continue to litigate this matter could result in the 

very irreconcilable conflicts that Frow counsels against. 

IV. Plaintiff is not entitled to a default judgment because it has failed to establish 

a claim or right to relief under FECA. 

 Plaintiff has also failed to provide sufficient evidence demonstrating that the FEC’s delay 

in publicly acting on its administrative complaint is contrary to law. To establish a claim or right 

to relief for unreasonable delay, Plaintiff must present evidence sufficient to satisfy the Court 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 v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980). 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’l 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 

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14 

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. 

As Defendant-Intervenors argue in their motion for judgment on the pleadings, ECF No. 

21 at 26-34, Plaintiff’s allegations fail to demonstrate that the Common Cause factors and the 

TRAC principles support Plaintiff’s allegation of arbitrary and capricious delay by the FEC. And 

Plaintiff’s motion for default judgment, ECF No. 20, including the complete dearth of evidence it 

has marshalled in support of the motion, fairs no better. 

A. Plaintiff’s claims are not credible because they are speculative and 

unsupported by evidence. 

 As described in detail in Defendant-Intervenors’ motion for judgment on the pleadings, the 

allegations underlying Plaintiff’s administrative complaint remain entirely speculative and 

completely unsupported by factual evidence. See ECF No. 10-2, Admin. Response; ECF No. 21 

at 32-33. Plaintiff’s allegations in this matter do not even meet the standard required for the FEC 

to take action, much less for a court to credit them. When analyzing an administrative complaint, 

the FEC considers whether there is “reason to believe” a violation of the Act has occurred. Id. § 

30109(a)(2). 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, would 

constitute a violation of the [Act].”2

 Moreover, “unwarranted legal conclusions from asserted 

facts” and mere speculation will not be accepted as true.” Id. If at least four of the FEC’s 

2

 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). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 22 of 34
15 

Commissioners vote to find such reason to believe,3

 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). 

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

allegations fall woefully short of the standard necessary to prompt investigation by the FEC. ECF 

No. 10-2. For example, as discussed above, Plaintiff complains that publicly-reported 

reimbursement 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 at 5. The fact that the payments were 

made based on estimates of costs is consistent with industry practice and is not reason to believe 

they were false. Similarly, the administrative complaint alleges that AB PAC made prohibited inkind contributions to unnamed Democratic campaigns. But the complaint never so much as names 

which campaigns were the supposed recipients. Id. at 4. 

 Plaintiff’s motion for default judgment does not even attempt to bolster its speculative 

claims with factual evidence. See ECF No. 20. The exhibits attached to Plaintiff’s motion largely

center on when the FEC lacked quorum, a fact which is not helpful to Plaintiff’s case. The exhibits 

do nothing to support Plaintiff’s argument that their underlying claims are credible. Compare ECF 

No. 1-1 (alleging Defendant-Intervenors illegally coordinated and made prohibited in-kind 

contributions) with ECF No. 20-1 (announcing the FEC’s 2019 end of year report); ECF No. 20-3 

(describing the FEC’s activities while it lacked quorum); ECF No. 20-4 (announcing the 

confirmation of Commissioner James E. Trainor III); ECF No. 20-5 (announcing Commissioner 

Caroline C. Hunter’s departure from the FEC); ECF No. 20-6 (announcing the confirmations of 

3

 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). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 23 of 34
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Commissioners Shana Broussard, Sean Cooksey, and Allen Dickerson); ECF No. 20-7 (illustrating 

Defendant-Intervenors’ attempt to contact the FEC about this case). Plaintiff claims that “[t]he 

exhibits [to its administrative complaint], which it says supports its claims, will be included in the 

normal course should this Court order the FEC to act but the FEC subsequently fails to act.” Id.

But Plaintiff cannot ask for relief now and promise to prove its right to relief later. Plaintiff must 

provide evidence that satisfies the court that it is entitled to relief before it is entitled to default 

judgment. Carvajal, 246 F.R.D. at 375 (“[D]efault judgment may not be entered against the United 

States absent an independent factual showing of a meritorious claim.”).4

 Plaintiff’s barebones 

allegations, unsupported by evidence, are not sufficient to show that its claims are credible. 

B. Plaintiff has failed to demonstrate that the conduct challenged in 

Plaintiff’s administrative complaint poses an urgent and ongoing 

threat, or has prejudiced Plaintiff’s interests. 

 Plaintiff claims that the FEC’s failure to take public action on the administrative complaint 

“not only makes it eminently possible that Defendant-Intervenors and other similar entities will 

continue to violate campaign finance and coordination rules to elude FECA’s requirements, but 

provides a clear roadmap for doing so.” Br. at 8 (cleaned up). Plaintiff is wrong. Some of the 

Defendant-Intervenor organizations, including HFA, which was supposedly was the impetus for 

the alleged in-kind contributions in the first place, is no longer active. Thus, there is no threat that 

4

 Plaintiff contends that it has not filed exhibits to its administrative complaint because of their 

size and number. ECF No. 21 at 7 n.3. That does not excuse Plaintiff from its burden of having to 

show, based on admissible evidence, that its claims are credible in order to obtain a default 

judgment against the FEC. Thuneibat, 167 F. Supp. 3d at 33 (“Courts must draw their findings of 

fact and conclusions of law from admissible testimony in accordance with the Federal Rules of 

Evidence.”). Indeed, much of the “evidence” cited in Plaintiff’s administrative complaint, which 

is not even before this Court, is inadmissible hearsay. See, e.g., ECF No. 1-1 at 3 n.5 (citing out of 

court media statements to prove the truth of the matter asserted), 3 n.7 (same), 4 n.9 (same), 4 n.10 

(same), 4 n.11 (same), 6 n.25 (same), 7 n.29 (same), 7 n.31 (same), 11 n.34 (same), 11 n.36 (same), 

12 n.37 (same), 13 n.41 (same), 13 n.42 (same), 15 n.43 (same), 15 n.46 (same). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 24 of 34
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they will continue the conduct Plaintiff challenges. With respect to similar entities, the rules 

prohibiting coordination and setting contribution limits are still on the books and being enforced 

by the FEC. See, e.g., 52 U.S.C. 30101(17), 30116(a), (d); 11 C.F.R. 110.1. Plaintiff’s argument 

that this case will open the door for political actors in a way that poses an urgent and ongoing 

threat to the entire electoral system is overblown and entirely speculative. The FEC’s failure to 

take public action on the administrative complaint in this case is limited to this case; it does not 

set any precedent that political actors can make illegal or excessive in-kind contributions without 

consequence. The FEC has not introduced or sanctioned any loophole here; it has simply failed to 

take public action on Plaintiff’s administrative complaint during the period of time that Plaintiff 

demands, which is far from providing a “roadmap” for violating the law in the future. See

Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50702 (Aug. 2, 

2016) (explaining that the FEC does not disclose legal conclusions, factual findings, or vote 

records before the agency takes public action on an administrative complaint); see also 5 U.S.C. § 

552(a)(2), (a)(5). This case will not shield other political actors from legal liability for wrongdoing, 

and other political actors will find no comfort in the FEC’s lack of action here, especially because 

the FEC still has jurisdiction over this matter and now has a quorum of four Commissioners who 

can authorize the Commission to investigate complaints. 

 Furthermore, to the extent Plaintiff believes that Defendant-Intervenors’ alleged conduct 

poses an urgent threat, its actions before filing this lawsuit and during the course of this litigation 

indicate otherwise. Plaintiff waited nearly four years after Defendant-Intervenors’ alleged conduct 

took place—from the 2016 election until spring of 2020—to even file an FEC complaint regarding 

the conduct challenged in this case. Then, after Plaintiff ironically sued the FEC for not taking 

public action quickly enough, Plaintiff moved to stay this case for another six months. ECF Nos. 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 25 of 34
18 

14, 15. If Plaintiff was concerned that Defendant-Intervenors and other political actors would 

engage in repeated and similar prohibited conduct that would threaten the electoral system, then it 

would have filed an administrative complaint earlier, and it would have litigated this case on a 

more swift timeline. Plaintiff’s delay is inexcusable and further demonstrates that the FEC’s delay 

is not contrary to law. 

C. The FEC has lacked sufficient resources to take public action on 

Plaintiff’s administrative complaint. 

 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.” FEC v. Rose, 806 F.2d 1081, 1091 

(D.C. Cir. 1986) (“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). 

For a significant part of the time Plaintiff’s complaint has been pending, the FEC has lacked 

the resources necessary to adjudicate it. See ECF No. 21 at 29-32. Instead of suggesting otherwise, 

the exhibits attached to Plaintiff’s motion only further demonstrate how the FEC’s hands were tied 

while it lacked a quorum, and that it was unable to investigate cases. See ECF No. 20-2 at 4 n.1 

(noting that, as of September 1, 2019, the FEC had only three commissioners, and thus “has been 

unable to launch any new investigations, issue any advisory opinions, promulgate any rules, grant 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 26 of 34
19 

any matching funds request, or render any decisions on pending enforcement actions”) (cleaned 

up). There is now a backlog of work at the FEC that the agency is working through,5

 and Plaintiff’s 

complaint is almost certainly caught in that backlog. 

 Further, Plaintiff’s claim that the FEC has had over 15 months to investigate its 

administrative complaint, ECF No. 20 at 10, is patently incorrect. As Plaintiff well knew when it 

filed its complaint, the FEC lacked a quorum of four Commissioners, and had been without a 

quorum for nearly a year, since August 2019.6 Without a quorum, the FEC could not act on 

Plaintiff’s administrative complaint or any other complaints See 52 U.S.C. § 30109(a)(2) 

(requiring an affirmative vote of four of more Commissioners to initiate an investigation).7

 Since 

Plaintiff filed its administrative complaint, the FEC has only had a quorum that would allow it to 

investigate Plaintiff’s complaint for eight months, not fifteen. 

D. The claims presented in the administrative complaint are novel and 

complex. 

 Plaintiff’s attempt to oversimplify this case by describing it as one that is just about 

coordination and contribution limits, two subjects the FEC confronts with regularity, see, e.g. 

SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 689 (D.C. Cir. 2010) (regarding 

contribution limits); Shays v. Fed. Election Comm’n, 528 F.3d 914, 919 (D.C. Cir. 2008) 

(regarding coordination), is misleading. This case is complex. Plaintiff’s administrative complaint 

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 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). 

7 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). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 27 of 34
20 

appears to allege that numerous excessive and prohibited in-kind contributions took place between 

several different respondents. See ECF No. 1-1. Those respondents are categorically different 

entities—some are non-profit organizations while others are political committees—to which 

different rules apply. See id. Before it can take public action on the administrative complaint, the 

FEC must analyze numerous financial transactions that are called into question by the Plaintiff, as 

well as the relationships between the Defendant-Intervenors. 

 This case is also closely related to other administrative complaints that were filed against 

HFA, CTR PAC, and other Defendant-Intervenors in the wake of the 2016 election. See MURs 

6940, 7097, 7146, 7160, and 7193. Plaintiff’s theory of excessive in-kind contributions made by 

CTR PAC in support of HFA is closely related to a novel theory pushed by Campaign Legal Center 

in a complaint that has been rejected by the FEC. On June 4, 2019, by a deadlocked vote of 2-2, 

the FEC’s four commissioners failed to find reason to believe and failed to authorize any 

investigation into the allegations raised in Campaign Legal Center’s administrative complaint.8

There, the controlling group of Commissioners issued a Statement of Reasons thoroughly 

explaining that they voted against finding reason to believe that HFA violated the law because (1) 

the “internet communications in support of HFA were not in-kind contributions even if they were 

coordinated with Hillary for America” because they were not “public communications”; and (2) 

“speculative information and materials stolen by Russian intelligence operatives and published by 

Wikileaks does not provide reason to believe that [the] expenditures for other activities were 

excessive or prohibited in-kind contributions to [HFA].”9

 Plaintiff in this case relies on similar 

8

 Amended Certification, MURs 6940, 7097, 7146, 7160, and 7193, available at 

https://www.fec.gov/data/legal/matter-under-review/7146/ (signed June 13, 2019). 

9

 Statement of reasons, MUR 7146, available at https://www.fec.gov/data/legal/matter-underreview/7146/ (Aug. 21, 2019). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 28 of 34
21 

information and materials from foreign adversaries, and their allegations necessarily require the 

FEC to analyze other related matters in order to determine next steps in this case. Because of the 

complexity of the allegations underlying Plaintiff’s administrative complaint and the fact that 

Plaintiff’s allegations overlap with those made in other similar matters, the FEC’s delay in taking 

public action is not unreasonable. Stockman v. FEC, 944 F. Supp. at 524. 

E. Plaintiff’s complaint has not been pending at the FEC for an 

unreasonable period of time. 

 Defendant-Intervenors’ motion for judgment on the pleadings also describes why the 

FEC’s delay does not violate the rule of reason. See ECF No. 21 at 33-34. Plaintiff’s motion for 

default judgment fails to provide any reason why 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 violative of reason. See ECF No. 20 at 11-12. Courts regularly find comparable—and 

longer—delays reasonable. 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”). 

And it is not at all unusual for similar matters to take the FEC more than 15 months to resolve. 

See, e.g., MUR 7878 (resolving administrative complaint regarding contribution limits, opened 

March 13, 2018, and closed March 10, 2010); MUR 7875 (resolving administrative complaint 

regarding contributions, opened July 24, 2018, and closed May 6, 2021); MUR 7768 (resolving 

administrative complaint regarding contribution limits, opened September 6, 2019, and closed 

January 14, 2021); MUR 7767 (resolving administrative complaint regarding contribution limits, 

opened September 6, 2019, and closed January 14, 2021). 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 29 of 34
22 

 Although, as Plaintiff claims, “some cases can be dealt with in the 120-day period,” ECF 

No. 20 at 11, Congress did not provide a timetable within which the FEC must act, see Rose, 806 

F.2d at 1092. To be sure, in cases where human health and welfare are at risk, agency delay is 

intolerable. See Rose, 806 F.2d at 1091-92 n.17. But this is not one of those cases. This case is 

about activity that occurred several elections ago. And Plaintiff has provided no evidence 

demonstrating that this FEC investigation requires rapid resolution. See ECF No. 20 at 11-12. 

V. Plaintiff has otherwise failed to establish that entry of default judgment is 

warranted against the FEC. 

 Plaintiff’s motion for default judgment against the FEC should be denied for additional, 

independent reasons: Plaintiff has failed to demonstrate that the FEC’s default is willful; that the 

default prejudices Plaintiff; and that no meritorious defense precludes Plaintiff’s claim for relief. 

In Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987), the D.C. Circuit identified 

willfulness, prejudice, and the absence of a meritorious defense as factors to be considered in 

deciding whether to set aside an entry of default judgment. Those same factors are relevant in 

deciding whether default judgment is appropriate in the first place. See Scimed Life Sys., 297 F. 

Supp. 2d at 9. Plaintiff has entirely failed to address or has—at best—insufficiently satisfied each 

of those factors. See Biton v. Palestinian Interim Self Gov’t Auth., 233 F. Supp. 2d 31, 33 (D.D.C. 

2002) (noting that the moving party failed to address a factor in finding the factor weighed against 

default judgment).10 Moreover, none of the factors weigh in favor of default judgment against the 

FEC. 

10 Plaintiff claims that the FEC’s failure to appear is not a matter of competing resources, but rather 

because “[t]he Commission can only appear in federal court to defend against a lawsuit when four 

Commissioners affirmatively vote to do so. . . . Therefore, the FEC’s failure to appear in this action 

likely indicates that a defense providing a rationale for their inaction has not been authorized by 

the required four Commissioners.” ECF No. 20 at 10. However, when the FEC has failed to garner 

four votes to defend as a lawsuit in the past, and an intervenor was present to defend against the 

case, courts have permitted the intervenor to “effectively take the defaulting FEC’s place” instead 

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 30 of 34
23 

First, the FEC’s default was not willful. Courts judge a defaulting party’s willfulness on a 

spectrum between “an excusable failure to respond,” which counsels against entry of default 

judgment, and “a deliberate decision to default.” Strong-Fisher, 611 F. Supp. 2d at 51. 

Uncertainties around the willfulness of default are frequently resolved in the defaulting party’s 

favor, even where that party’s explanation had slim or no supporting evidence. See, e.g., Biton, 

233 F.Supp.2d at 33 (finding default not willful because, even though the defaulting party had 

“supplied no specifics—by proffer, affidavit, or otherwise” to excuse its delay, the court has a 

“duty to accord the defendants the benefit of the doubt”). Given the FEC’s lack of quorum and 

backlog of cases, and resolving any uncertainties in favor of the FEC, the FEC’s absence in this 

case is best characterized as “an excusable failure to respond,” which counsels against entry of 

default judgment. Strong-Fisher, 611 F. Supp. 2d at 51. 

Second, Plaintiff has not demonstrated that the FEC’s default has impacted its ability to 

successfully prosecute its claim. Delay in and of itself does not satisfy the prejudice requirement. 

See Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 374 (D.C. Cir. 1980). To 

establish prejudice resulting from the default, the party moving for default judgment must show 

that consequences of the delay “might have an impact upon [their] ability to successfully prosecute 

[their] claim.” Cap. Yacht Club, 228 F.R.D. at 394. During the early stages of the proceedings, 

courts often refuse to find that a moving party has been prejudiced by a default. See, e.g., Biton, 

233 F. Supp. 2d at 33 (finding “no possible prejudice” was apparent because, since “[n]o discovery 

has been conducted, and no summary judgment motions have been filed,” the case was 

of granting default judgment against the FEC. See Campaign Legal Ctr. v. FEC, 334 F.R.D. 1 

(D.D.C. 2019); see also Gilmore v. Palestinian Interim Self-Gov’t Auth., 675 F. Supp. 2d 104, 108-

10 (D.D.C. 2009) (finding defendants’ default to be willful and part of a “deliberate litigation 

strategy,” but nevertheless granting vacatur of the entry of default). 

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24 

“procedurally in its early stages”); Haskins v. U.S. One Transp., LLC, 755 F. Supp. 2d 126, 131 

(D.D.C. 2010) (same); Acree v. Republic of Iraq, 658 F. Supp. 2d 124, 129 (D.D.C. 2009) (same). 

Here, the litigation is in its early stages, but is actively proceeding. In fact, Plaintiff and DefendantIntervenors filed a joint status report explicitly noting that they were “prepared to move this 

litigation forward,” despite the FEC’s absence. ECF No. 16. Other cases against the FEC have 

similarly proceeded with an intervening party stepping into the shoes of the FEC. See, e.g., 

Campaign Legal Ctr, 334 F.R.D. at 3 (permitting the intervening defendants to appear, “effectively 

tak[ing] the defaulting FEC’s place in th[e] suit”). The only delays in the progression of the 

litigation have resulted from Plaintiff’s requests to stay the proceedings. See ECF Nos. 14, 15. 

Finally, meritorious defenses against Plaintiff’s claim exist. The measure of a meritorious 

defense is not “likelihood of success.” Keegel, 627 F.2d at 374. Rather, a meritorious defense 

sufficient to undermine entry of default judgment need only contain “even a hint of a suggestion” 

of a complete defense. Id. Accordingly, a meritorious defense “is extremely easy to present.” 

Shatsky v. Syrian Arab Republic, 795 F. Supp. 2d 79, 84 (D.D.C. 2011). To wit, the D.C. Circuit 

has allowed “somewhat broad and conclusory” allegations to suffice. Keegel, 627 F.2d at 374. 

Defendant-Intervenors have not only proffered defenses that meet that standard, see ECF No. 13 

(denying the merits of Plaintiff’s complaint, alleging that Plaintiff’s lack standing, and alleging 

that Plaintiff’s requested relief is barred by the equitable doctrine of laches), they have supported 

those defenses in their motion for judgment on the pleadings, see ECF No. 21 (same). Those same 

arguments preclude judgment against the FEC. See ECF No. 20. Accordingly, meritorious 

defenses weigh against entry of default judgment against the FEC.11 

11 The suggestion of a meritorious defense need not be raised by FEC. See Whelan v. Abell, 48 

F.3d 1247, 1259 (D.C. Cir. 1995) (affirming district court’s finding that the absence of a 

meritorious defense factor weighed against default judgment even though the defaulting party “just 

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25 

CONCLUSION 

 For the reasons stated herein, Defendant-Intervenors respectfully request that the Court 

deny Plaintiff’s Motion for Entry of Default Judgment against Defendant FEC. 

Dated: August 3, 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 

adopted by reference the defenses of its co-defendants”); cf. Keegel, 627 F.2d at 374 n.4 (finding 

the meritorious defense factor weighed against default judgment even though it was raised in an 

answer that “did not have the verification required by [the local rules]”). The import of the factor 

is whether the court is “faced with a case in which the court could conclude that the defense is 

entirely without merit in view of facts as to which there is no genuine issue.” Id.

Case 1:20-cv-02229-EGS Document 23 Filed 08/03/21 Page 33 of 34
CERTIFICATE OF SERVICE 

I hereby certify that on August 3, 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 23 Filed 08/03/21 Page 34 of 34