Daniel A. Petalas, Acting General Counsel (dpetalas@fec.gov) 

Lisa J. Stevenson, Deputy General Counsel – Law (lstevenson@fec.gov) 

Kevin Deeley, Acting Associate General Counsel (kdeeley@fec.gov) 

Harry J. Summers, Assistant General Counsel (hsummers@fec.gov) 

Kevin P. Hancock, Attorney (khancock@fec.gov) 

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

_______________________________________ 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) Case No. 2:15-cv-00439-DB 

 Plaintiff, ) 

 ) MOTION FOR PARTIAL

 v. ) JUDGMENT ON THE PLEADINGS

 ) OR TO STRIKE AFFIRMATIVE 

JEREMY JOHNSON, ) DEFENSES 

 ) 

 Defendant. ) District Judge Dee Benson 

 ) 

PLAINTIFF FEDERAL ELECTION COMMISSION’S MOTION 

FOR PARTIAL JUDGMENT ON THE PLEADINGS 

OR IN THE ALTERNATIVE TO STRIKE AFFIRMATIVE DEFENSES 

 

 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 1 of 19
ii

TABLE OF CONTENTS 

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

II. ARGUMENT .................................................................................................................3 

A. Johnson Has Failed to Adequately Plead Selective Prosecution 

 (Sixth Defense) ..................................................................................................4 

B. Johnson’s Claim That the FEC Did Not Attempt to Conciliate 

Fails as a Matter of Law (Eighth Defense ¶ 51) ................................................8 

C. Johnson’s Claim That FEC Attorneys Should Be Disqualified 

Fails as a Matter of Law (Fifth Defense) .........................................................12 

D. Johnson’s Claim That He Is Financially Unable to Defend 

Himself Fails Because There Is No Right to Counsel in a 

Civil Case (Fourth Defense) ............................................................................12 

E. Johnson’s Assertion That the FEC’s Claims Are Time Barred 

Is Insufficient as a Matter of Law (Seventh Defense) .....................................13 

F. Johnson’s Purported First, Second, Third, and Tenth Defenses 

Are Not Affirmative Defenses .........................................................................14 

 1. Johnson’s First and Second Defenses Are Evidentiary 

Arguments ...........................................................................................14 

 2. Johnson’s Claim That Evidence Was Spoliated Is Not 

an Affirmative Defense (Third Defense) .............................................15 

 3. Johnson’s Claim That the FEC Failed to State a Claim is 

Not an Affirmative Defense (Tenth Defense) ......................................16 

III. CONCLUSION ............................................................................................................16 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 2 of 19
1

 Plaintiff Federal Election Commission (“Commission” or “FEC”) moves for partial 

judgment on the pleadings or in the alternative to strike nine of the purported defenses (defenses 

1-7, 8 (¶ 51), and 10) that defendant Jeremy Johnson has pleaded in his answer. See Fed. R. Civ. 

P. 12(c), (f). The Commission’s complaint alleges that Johnson violated the Federal Election 

Campaign Act by using the names of other persons to contribute to federal candidates in amounts 

far in excess of applicable contribution limits. In response, Johnson has pleaded nearly a dozen 

“defenses” in a transparent attempt to expand the issues subject to discovery and sow confusion 

about the dispute before the Court. In fact, in his initial disclosures, Johnson has already stated 

his intent to pursue discovery relating to these purported defenses from no less than nine 

attorneys and investigators at the United States Attorney’s Office for the District of Utah. Those 

defenses, however, cannot succeed as a matter of law, are insufficiently pleaded, are not actually 

affirmative defenses, or suffer some combination of these defects. Johnson’s defenses assert, 

without support, an array of purported misdeeds by multiple government agencies. Johnson 

claims that the FEC did not attempt to conciliate the matter prior to suit, that FEC counsel should 

be disqualified, and that Johnson cannot afford to defend himself, despite being represented by 

counsel. And he inappropriately pleads evidentiary objections. This Court should deny 

Johnson’s improper bid to derail this case with frivolous defenses designed to justify pointless, 

burdensome discovery and divert the attention of the Court away from the serious violations of 

law actually at issue in the Commission’s complaint. Granting the Commission’s motion would 

maintain the focus of the case on Johnson’s violations of federal election law. 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 3 of 19
2

 I. BACKGROUND 

 Plaintiff Federal Election Commission is an independent agency of the United States 

government that is responsible for the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act (“FECA”), 52 U.S.C. §§ 30101-46. See id. §§ 30106(b)(1), 

30107(a), 30109. The Commission is authorized to investigate possible violations of FECA, id.

§ 30109(a)(1)-(2), and to file civil lawsuits in the United States district courts to enforce FECA, 

id. §§ 30107(e), 30109(a)(6). 

 On June 19, 2015, the Commission filed this suit alleging that Jeremy Johnson violated 

FECA. (See Compl. (Docket No. 1).) As the complaint explains, in 2009 and 2010, FECA 

provided that no person could contribute in excess of $2,400 per election to any federal 

candidate. (Id. ¶ 10.) FECA also provides that no person shall make a contribution “in the name 

of another person.” (Id. ¶ 11.) Johnson violated both of these provisions when, in 2009 and 

2010, he used “straw donors” to contribute approximately $100,000 to Mark Shurtleff’s United 

States Senate campaign, about $50,000 to Mike Lee’s Senate campaign, and about $20,000 to 

Senator Harry Reid’s re-election campaign. (Id. ¶ 2.) 

 On October 8, 2015, this Court denied Johnson’s motion to dismiss and granted the 

Commission’s motion to waive the local counsel requirement of DUCivR 81-1.1(d). (Docket 

No. 16.) On October 19, 2015, Johnson filed his answer, which pleads ten defenses. (See

Answer (Docket No. 17).) A week later, on October 26, 2015, the parties held their attorney 

planning meeting pursuant to Rule 26(f). The parties then filed their attorney planning meeting 

report (Docket No. 21) and exchanged initial disclosures on November 10, 2015. Johnson’s 

initial disclosures identify several government attorneys and investigators who purportedly have 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 4 of 19
3

information relating to Johnson’s alleged defenses. (See Def.’s Initial Disclosures ¶¶ A.2, A.4 

(attached as Exh. A).) 

II. ARGUMENT 

The Court should dismiss or strike the First through Seventh, Eighth (paragraph 51), and 

Tenth Defenses in the answer because they are legally insufficient. Federal Rules of Civil 

Procedure 12(c) and 12(f) each allow this Court to remove an insufficient defense from the 

answer. Under Rule 12(c), a court may grant judgment on the pleadings “[a]fter the pleadings 

are closed.” Judgment on a pleaded affirmative defense is warranted where the “non-moving 

party can prove no set of facts which would form the basis for relief” and thus the defense is 

“insufficient as a matter of law.” FDIC For & on Behalf of Heritage Bank & Trust v. Lowe, 809 

F. Supp. 856, 858-59 (D. Utah 1992) (dismissing defenses under Rule 12(c)). Similarly, under 

Rule 12(f), a court may “strike from a pleading an insufficient defense.” A defense is 

insufficient under Rule 12(f) where it “can be summarily resolved as a matter of law.” Wilkinson 

v. Utah, 860 F. Supp. 2d 1284, 1287 (D. Utah 2012) (striking defenses under Rule 12(f)). 

When deciding whether to strike a defense, “courts should consider the purpose of Rule 

12(f), which is to minimize delay, prejudice and confusion by narrowing the issues for discovery 

and trial.” United States v. Badger, No. 2:10-CV-00935, 2013 WL 1309165, at *4 (D. Utah Mar. 

31, 2013) (unpublished) (internal quotation marks omitted); see, e.g., FEC v. Adams, 558 F. 

Supp. 2d 982, 991 (C.D. Cal. 2008) (striking defenses pleaded against the FEC where the 

“discovery of additional facts will not validate the challenged affirmative defenses”). 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 5 of 19
4

 A. Johnson Has Failed to Adequately Plead Selective Prosecution (Sixth 

Defense) 

The Court should strike Johnson’s Sixth Defense, which states in its entirety that “Mr. 

Johnson is being selectively prosecuted in this lawsuit for improper purposes.” (Answer 2.) That 

claim is inadequately pleaded. 

 The Supreme Court has long held that a federal agency’s exercise of prosecutorial 

discretion is “presumptively unreviewable.” Heckler v. Chaney, 470 U.S. 821, 832 (1985); see 

also United States v. Armstrong, 517 U.S. 456, 463-64 (1996) (explaining that the executive’s 

“broad discretion” to enforce the law is entitled to a “presumption of regularity” (internal 

quotation marks omitted)). The executive’s decision whether to sue involves a balancing of 

“multifarious” factors that lie within its expertise and “‘are not readily susceptible to the kind of 

analysis the courts are competent to undertake.’” Jennings v. City of Stillwater, 383 F.3d 1199, 

1214-15 (10th Cir. 2004) (quoting Armstrong, 517 U.S. at 465). Those factors include “the 

relative culpability of the defendants,” the “optimal deployment of prosecutorial resources,” the 

strength of a particular case, the “‘government’s enforcement priorities,’” and a particular case’s 

“‘relationship to the Government’s overall enforcement plan.’” Id. (quoting Armstrong, 517 

U.S. at 465). Accordingly, “[b]road discretion has been vested in executive branch officials to 

determine when to prosecute.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1167 

(10th Cir. 2003) (citing Armstrong, 517 U.S. at 464). 

 In FECA, Congress chose not to disturb the presumptive unreviewability of FEC 

decisions to bring civil enforcement actions. FECA does allow federal courts to review certain 

FEC decisions. See 52 U.S.C. § 30109(a)(8)(A) (authorizing “any party aggrieved” to petition a 

court to review the FEC’s dismissal or delay of an administrative proceeding). But the FEC’s 

decision whether to sue a respondent is not one of them. See FEC v. Legi-Tech, Inc., 75 F.3d 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 6 of 19
5

704, 709 (D.C. Cir. 1996) (concluding that it has “no statutory authority to review the FEC’s 

decision to sue”). The FEC’s administrative enforcement process “is not an adjudication” and 

thus does not result in “any finding of liability” for courts to review. FEC v. Nat’l Republican 

Senatorial Comm., 877 F. Supp. 15, 19 (D.D.C. 1995). Instead, the Commission’s power to file 

a de novo lawsuit in federal district court, such as in this case, is the “exclusive civil remedy” for 

the enforcement of FECA. 52 U.S.C. § 30107(e). 

 Due to the broad discretion that courts afford to the executive’s prosecutorial discretion, a 

defendant who accuses the government of selective prosecution must meet a “rigorous” standard 

to justify “ask[ing] a court to exercise judicial power over a ‘special province’ of the Executive.” 

Armstrong, 517 U.S. at 464 (quoting Heckler, 470 U.S. at 832). That defendant must prove that 

“the Government’s selection of him for prosecution was invidious or in bad faith and was based 

on impermissible considerations such as race, religion, or the desire to prevent the exercise of 

constitutional rights.” United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983); see

Armstrong, 517 U.S. at 463 (“Our cases delineating the necessary elements to prove a claim of 

selective prosecution have taken great pains to explain that the standard is a demanding one.”). 

 The Court should strike the Sixth Defense because Johnson has not adequately pleaded 

selective prosecution. The Supreme Court in Armstrong “imposed a substantially more 

‘demanding’ pleading burden on . . . claims of selective law enforcement.” Jennings, 383 F.3d at 

1214 (quoting Armstrong, 517 U.S. at 463-64)). This is due to the “heavy burden” that discovery 

on a selective prosecution claim imposes on the government. United States v. James, 257 F.3d 

1173, 1178 (10th Cir. 2001). Such discovery “will divert prosecutors’ resources” and “may 

disclose the Government’s prosecutorial strategy.” Armstrong, 517 U.S. at 468. As a result, “the 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 7 of 19
6

showing necessary to obtain discovery should itself be a significant barrier to the litigation of 

insubstantial claims.” Id. at 464. 

 Under Armstrong’s demanding pleading burden, a defendant is entitled to discovery 

“only if he presents ‘some evidence tending to show the existence of the essential elements’” of a 

selective prosecution claim. James, 257 F.3d at 1178 (quoting Armstrong, 517 U.S. at 468). 

There are two essential elements. First, the defendant must plead and demonstrate 

“discriminatory effect.” Armstrong, 517 U.S. at 465. In other words, the defendant must show 

that he was “singled out for prosecution while others similarly situated generally have not been 

proceeded against for the type of conduct forming the basis of the charge.” United States v. 

Furman, 31 F.3d 1034, 1037 (10th Cir. 1994). Second, the defendant must also plead and show 

“discriminatory purpose.” Armstrong, 517 U.S. at 465. Discriminatory purpose exists if the 

government’s prosecution was “invidious or in bad faith and was based on impermissible 

considerations such as race, religion, or the desire to prevent the exercise of constitutional 

rights.” Salazar, 720 F.2d at 1487. 

 Here, Johnson has failed even to sufficiently plead either element, let alone demonstrate 

that there is “some evidence tending to show the existence” of the elements. Armstrong, 517 

U.S. at 468. His defense states in its entirety: “Mr. Johnson is being selectively prosecuted in 

this lawsuit for improper purposes.” (Answer 2.) That statement does not sufficiently allege the 

“discriminatory effect” element because it does not claim that the FEC failed to prosecute 

similarly situated persons who allegedly violated the FECA provisions Johnson violated. See 

Furman, 31 F.3d at 1037; see also Haskett v. Flanders, No. 13-CV-03392, 2015 WL 128156, at 

*7 (D. Colo. Jan. 8, 2015) (unpublished) (stating that a selective prosecution claim must “allege 

that a similarly situated individual of a different class could have been but was not prosecuted for 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 8 of 19
7

an offense for which Plaintiff was prosecuted”). Johnson’s conclusory assertion that he is “being 

selectively prosecuted” falls short. Cf. id. (dismissing selective prosecution claim asserting a 

mere “general allegation that a plaintiff has received a different standard of police protection 

than is typically afforded to citizens”). 

 Second, Johnson also has not sufficiently pleaded the “discriminatory purpose” element. 

His pleading does not claim that he was singled out on the basis of race, religion, or the exercise 

of constitutional rights. See Salazar, 720 F.2d at 1487. Johnson merely asserts that he was 

prosecuted for “improper purposes.” (Answer 2.) But claims of prosecution “for insufficient, or 

unjustifiable, or unfair, or just plain bad reasons” are not enough. United States v. Am. Elec. 

Power Serv. Corp., 258 F. Supp. 2d 804, 808 (S.D. Ohio 2003) (striking selective enforcement 

defense and stating that “[t]he Court is aware of no precedent for such an affirmative defense 

being pursued successfully in a civil enforcement action by a federal government agency . . . 

without also claiming membership in a constitutionally protected class or intent to punish for 

exercise of constitutionally protected rights”); see Adams, 558 F. Supp. 2d at 994 (dismissing 

selective prosecution defense against the FEC for failure to present “any evidence or argument” 

that defendant was sued due to race, religion, or exercise of constitutional rights); Mims v. United 

States, No. 2:06CV00492, 2006 WL 2037573, at *3-4 (D. Utah July 18, 2006) (unpublished) 

(“Ms. Mims fails to allege that the government prosecuted her in bad faith or based on an 

impermissible basis, such as race or religion.”); cf. United States v. Bryant, 5 F.3d 474, 475 (10th 

Cir. 1993) (affirming district court’s denial of an evidentiary hearing on selective prosecution 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 9 of 19
8

claim where defendant pleaded only “bald assertions” and “[m]ere speculation” of “selective 

prosecution based on race”).1

 

 B. Johnson’s Claim That the FEC Did Not Attempt to Conciliate Fails as a 

Matter of Law (Eighth Defense) 

 In the answer’s Eighth Defense, Johnson denies that the FEC attempted to correct his 

violations through conciliation. (Compl. ¶ 51; Answer ¶ 51.) But this defense fails as a matter 

of law, because Johnson’s answer otherwise admits facts that show the FEC met the Supreme 

Court’s requirements for attempting to conciliate in the enforcement context under statutes like 

FECA. And Johnson could not prove that the FEC did not attempt to conciliate in any event. 

 FECA requires the Commission, after finding that there is probable cause to believe that 

a respondent violated FECA, to “attempt, for a period of at least 30 days, to correct or prevent 

such violation by informal methods of conference, conciliation, and persuasion, and to enter into 

a conciliation agreement with any person involved.” 52 U.S.C. § 30109(a)(4)(A)(i). If that 

attempt fails to produce a conciliation agreement acceptable to the Commission, the FEC may 

then sue the respondent in federal district court to enforce FECA. Id. § 30109(a)(6)(A). These 

provisions require the FEC only to “attempt” to conciliate — meaning that the FEC need only 

                                                           

1

 Johnson’s selective prosecution defense is also subject to being stricken because selective 

prosecution “is not a defense on the merits to [a] . . . charge itself, but an independent assertion 

that the prosecutor has brought the charge for reasons forbidden by the Constitution.” 

Armstrong, 517 U.S. at 463-64; see also United States v. Leggett & Platt, 542 F.2d 655, 658 (6th 

Cir. 1976) (stating that the “purported defense of ‘discriminatory enforcement’ is, as a matter of 

law, no defense”). Cases involving “a plaintiff asserting a[] . . . claim of selective enforcement 

against a defendant” are distinct from those involving the “issue when raised as a defense,” 

where the issue is “peripheral.” FEC v. Friends of Lane Evans, No. 2:07-cv-4419, slip op. at 2 

(C.D. Ill. Jan. 14, 2009), available at http://www.fec.gov/law/litigation/evans_dc_order.pdf 

(rejecting discovery related to a selective prosecution defense to FEC claims). This is the latter 

type of case. Even if Johnson had “[p]roof of selective enforcement,” it would “not negate the 

Commission’s allegations” or “serve as a defense to the charges.” Id.; see also, e.g., United 

States v. Hazel, 696 F.2d 473, 475-76 (6th Cir. 1983) (“[N]o purpose would be served by 

conducting a full evidentiary hearing on a charge which, even if proved, is immaterial and 

insufficient as a matter of law to support dismissal for selective prosecution”). 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 10 of 19
9

“come to the conciliation table.” FEC v. Club For Growth, Inc., 432 F. Supp. 2d 87, 92 (D.D.C. 

2006). The FEC “is not bound to accept a conciliation agreement which it finds unacceptable.” 

FEC v. Nat’l Rifle Ass’n, 553 F. Supp. 1331, 1339 (D.D.C. 1983); see also Adams, 558 F. Supp. 

2d at 982 (“[T]he Act . . . does not require the FEC to continue negotiations until a conciliation 

agreement is reached.”). 

 The Supreme Court recently held that for a federal agency to meet its duty “to attempt 

conciliation before filing suit,” the agency need only (1) “inform the [respondent] about the 

specific allegation,” and (2) “try to engage the [respondent] in some form of discussion (whether 

written or oral), so as to give the [respondent] an opportunity to remedy” the alleged offense. 

Mach Mining, LLC v. EEOC, --- U.S. ---, 135 S. Ct. 1645, 1649, 1655-56 (2015).2

 A court may 

exercise only “relatively barebones review” to determine whether an agency has satisfied these 

two requirements — “and nothing else.” Mach Mining, 135 S. Ct. at 1656. A court may not

review any of the agency’s “strategic decisions” in conciliation, including “whether to make a 

bare-minimum offer, to lay all its cards on the table, or to respond to each of [a respondent’s] 

counter-offers.” Id. at 1654. Nor may a court review the agency’s choices regarding “the pace 

and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the 

content of its demands for relief.” Id. This barebones review respects the “expansive discretion” 

that statutes like FECA give to an agency “to decide how to conduct conciliation efforts and 

when to end them.” Id. at 1656; see, e.g., Club For Growth, Inc., 432 F. Supp. 2d at 91 

                                                           

2

 In Mach Mining, the Supreme Court reviewed the Equal Employment Opportunity 

Commission’s statutory duty to attempt to conciliate, which is nearly identical to the FEC’s. See

42 U.S.C. § 2000e-5(b) (requiring the EEOC to “endeavor to eliminate” alleged violations of 

Title VII using “informal methods of conference, conciliation, and persuasion” before filing 

suit). Courts evaluating the FEC’s duty to attempt to conciliate have routinely followed the 

“instructive” guidance of decisions evaluating the EEOC’s similar duty. Nat’l Rifle Ass’n, 553 

F. Supp. at 1344; see also Club For Growth, Inc., 432 F. Supp. 2d at 91 (same); Adams, 558 F. 

Supp. 2d at 990 (same). 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 11 of 19
10

(affording “high deference” to the FEC’s conciliation attempts). Moreover, barebones review is 

necessary to preserve the confidentiality required to promote candor in settlement negotiations in 

general, Mach Mining, 135 S. Ct. at 1655, and the confidentiality required by FECA in 

particular, see 52 U.S.C. § 30109(a)(4)(B)(i) (barring “action[s]” and “information derived” from 

conciliation from being “made public” without the respondent’s written consent). 

 An agency may satisfy this low bar merely by providing “a sworn affidavit from the 

[agency] stating that it has performed the obligations” required “but that its efforts have failed.” 

Mach Mining, 135 S. Ct. at 1656. Fact-finding on the issue is not necessary unless, in response 

to the agency, the defendant is able to provide “credible evidence of its own . . . indicating that 

the [agency] did not provide the requisite information about the charge or attempt to engage in a 

discussion about conciliating the claim.” Id.

 In this case, an affidavit is unnecessary since admissions in Johnson’s answer 

demonstrate that the Commission has satisfied the Mach Mining standard. First, Johnson has 

admitted that the Commission notified him, by letter dated April 20, 2015, of its finding that 

there was probable cause to believe he violated FECA. Compl. ¶ 51; Answer ¶ 51; cf. Mach 

Mining, 135 S. Ct. at 1655-56 (describing how the EEOC “typically” satisfies the first 

requirement with “a letter announcing its determination of ‘reasonable cause’”). Second, 

Johnson further admits that on May 15, 2015 — in the midst of the post-probable cause, pre-suit 

conciliation period — he agreed to toll the statute of limitations for 30 days. (Compl. ¶ 52; 

Answer ¶ 52.) It would make little sense for Johnson and the FEC to agree to extend the time 

available to attempt to conciliate unless the FEC was in fact trying to engage in some form of 

discussion giving Johnson an opportunity to remedy his alleged offenses. 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 12 of 19
11

 In any event, out of an abundance of caution, the Commission has attached to this motion 

a declaration of counsel with personal knowledge of the FEC’s attempt to conciliate with 

Johnson. (See Decl. of Counsel in Supp. of FEC’s Mot. for Partial J. on the Pleadings or in the 

Alternative to Strike Affirmative Defenses (attached).)3

 As that declaration states, the 

Commission informed Johnson about the specific allegations against him on many occasions. 

(Id. ¶¶ 4.a-d.) As the declaration also states, for 44 days, the Commission tried to engage, and 

did in fact engage, Johnson in written and oral discussions so as to give him an opportunity to 

remedy the allegations against him. (Id. ¶ 5.) Despite those efforts, the parties were unable to 

reach an acceptable conciliation agreement. (Id. ¶ 6.) Accordingly, this Court should strike 

Johnson’s conciliation defense since it cannot succeed. See, e.g., EEOC v. Blinded Veterans 

Ass’n, --- F. Supp. 3d ---, No. 14-2102, 2015 WL 5148737, at *7 (D.D.C. July 7, 2015) (holding 

that an EEOC declaration did “more than enough” to survive Mach Mining’s “barebones 

review”).4

 

                                                           

3

 The Court may consider this declaration without converting the FEC’s motion to a 

motion for summary judgment. Courts have relied upon FEC exhibits to reject Rule 12(b)(1) 

motions claiming that the FEC failed to attempt to conciliate. See, e.g., Club For Growth, Inc., 

432 F. Supp. 2d at 89, 91-92. While a Rule 12(c) motion is normally treated as a Rule 12(b)(6) 

motion, courts may apply the Rule 12(b)(1) standard instead where appropriate. 5C Charles 

Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1367 (3d ed. 

2015). Under Rule 12(b)(1), this court has “wide discretion” to consider affidavits and “other 

documents” to resolve “disputed jurisdictional facts.” Holt v. United States, 46 F.3d 1000, 1003 

(10th Cir. 1995). 

4

 In any event, FECA’s duty to attempt to conciliate is merely a condition precedent to the 

FEC’s filing suit, not an affirmative defense for a defendant. Therefore, even if successful, 

Johnson’s defense would not require dismissal of the FEC’s claims; instead “the appropriate 

remedy” would be to stay the case and “order the [agency] to undertake the mandated efforts to 

obtain voluntary compliance.” Mach Mining, 135 S. Ct. at 1656; see also Gad v. Kan. State 

Univ., 787 F.3d 1032, 1041 (10th Cir. 2015) (explaining that conditions precedent to suit, such as 

the EEOC’s duty to conciliate, are not affirmative defenses (citing Mach Mining, 135 S. Ct. at 

1651)). 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 13 of 19
12

 C. Johnson’s Claim That FEC Attorneys Should Be Disqualified Fails as a 

Matter of Law (Fifth Defense) 

 The Court should strike Johnson’s Fifth Defense, which asserts that the FEC should be 

“disqualified from prosecuting this case” because it allegedly reviewed privileged 

communications between Johnson and his counsel. (Answer 2.) This claim is utterly baseless — 

the FEC has not reviewed any privileged communications between Johnson and his counsel. In 

any event, the claim is also legally insufficient. 

 Johnson’s purported defense fails as a matter of law because it asserts no valid factual 

basis for disqualification. Courts in this Circuit disqualify government attorneys only in 

“‘limited circumstances’ such as an ‘actual conflict of interest because [the] appointed prosecutor 

also represented another party’ or where there are ‘bona fide allegations of bad faith performance 

of official duties by government counsel’ or where the ‘prosecutor . . . will act as a witness at 

trial.’” United States v. Marquez, 603 F. App’x 685, 689 (10th Cir. 2015) (quoting United States 

v. Bolden, 353 F.3d 870, 878-79 (10th Cir. 2003)). Johnson’s Fifth Defense alleges no such 

circumstances.5

 D. Johnson’s Claim That He Is Financial Unable to Defend Himself Fails 

Because There Is No Right to Counsel in a Civil Case (Fourth Defense) 

 The Court should strike Johnson’s Fourth Defense. It claims that this civil action violates 

due process because Johnson is financially unable to “meaningfully defend himself.” (Answer 

                                                           

5

 Johnson’s allegation also fails because, like a number of his other contentions (see infra 

Part II.F), it is not an affirmative defense. Even if this Court found that there were grounds for 

disqualification, it would not defeat the FEC’s claims. As the Tenth Circuit has explained, 

“because disqualifying government attorneys implicates separation of powers issues, the 

generally accepted remedy is to disqualify a specific [government] Attorney, . . . not all the 

attorneys in the office.” Bolden, 353 F.3d at 879 (internal quotation marks omitted). Even if all 

of the FEC’s attorneys could be disqualified from this matter, the proper remedy would still not 

be dismissal. See, e.g., id. at 873 (describing how district court that erroneously disqualified an 

“entire USA’s office” had then ordered that an Assistant U.S. Attorney from another district 

should prosecute the case). 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 14 of 19
13

2.) But the Constitution does not grant civil litigants a right to counsel. Johnson v. Johnson, 466 

F.3d 1213, 1217 (10th Cir. 2006) (per curiam). In any event, Johnson is in fact represented by 

counsel in this case, and his counsel has already moved to dismiss and opposed the FEC’s 

motion for waiver of local counsel rules. (Docket Nos. 10, 13.) But even if Johnson were to 

claim later that he could no longer afford representation, that would not violate due process or 

any other part of the Constitution. See Johnson, 466 F.3d at 1217; see also, e.g., Pinson v. 

Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 748-49 (10th Cir. 2009) (rejecting civil 

litigants’ contention “that the district court should have appointed new counsel sua sponte after 

they fired their previous attorneys”). In fact, Johnson is defending himself without counsel in the 

Federal Trade Commission civil litigation he references in his Fourth Defense. See FTC v. 

Johnson, No. 2:10-CV-02203, 2013 WL 2460359 (D. Nev. June 6, 2013). 

 E. Johnson’s Assertion That the FEC’s Claims Are Time Barred Is Insufficient 

as a Matter of Law (Seventh Defense) 

 The Court should strike Johnson’s statute of limitations defense. With regard to the 

FEC’s request for equitable relief (see Compl. 13), the statute of limitations does not apply. 

Under 28 U.S.C. § 2462, the government must file a suit seeking a “civil fine, penalty, or 

forfeiture” against an offender found in the United States “within five years from the date when 

the claim first accrued.” By its terms, this limitations period “bars only legal relief” and not 

claims for equitable relief, such as declarative and injunctive remedies. FEC v. Christian Coal., 

965 F. Supp. 66, 70-71 (D.D.C. 1997) (holding that section 2462 does not apply to FEC claims 

for equitable relief); see also Nat’l Republican Senatorial Comm., 877 F. Supp. at 21 (same). 

While some jurisdictions apply section 2462 to a plaintiff’s concurrent claims for legal and 

equitable relief, the Tenth Circuit does not when, as here, “the Government . . . seeks equitable 

relief in its enforcement capacity.” United States v. Telluride Co., 146 F.3d 1241, 1248 (10th 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 15 of 19
14

Cir. 1998) (explaining that “any statute of limitations sought to be applied against the United 

States must receive a strict construction in favor of the Government” (internal quotation marks 

omitted)).6 

 F. Johnson’s Purported First, Second, Third, and Tenth Defenses Are Not 

Affirmative Defenses 

A pleaded defense is insufficient when it is not in fact an affirmative defense. An 

affirmative defense raises “additional new material that would defeat the plaintiff’s otherwise 

valid cause of action.” 5 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal 

Practice & Procedure § 1270 (3d ed. 2015). A court may therefore strike a purported affirmative 

defense that is instead either (1) a mere denial of elements of the plaintiff’s claim, or (2) a 

collateral claim that would “not act to preclude a defendant’s liability” even if successful. 

Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174-75 

(N.D. Cal. 2010) (striking, under Rule 12(f), ten such false affirmative defenses). 

 1. Johnson’s First and Second Defenses Are Evidentiary Arguments 

 The Court should strike Johnson’s First and Second Defenses because they are objections 

to the admissibility of the FEC’s evidence, not affirmative defenses. Just as a denial of an 

allegation in the complaint is not an affirmative defense, neither is a purported “defense which 

simply points out a defect or lack of evidence in a plaintiff’s case.” Royal Caribbean Cruises, 

                                                           

6

 The Commission requests legal relief only for Johnson’s illegal acts that occurred on or 

after May 20, 2010. A claim accrues for purposes of section 2462 “on the date that a violation 

first occurs.” Nat’l Parks & Conservation Ass’n, Inc. v. Tenn. Valley Auth., 502 F.3d 1316, 1322 

(11th Cir. 2007). The FEC filed this suit on June 19, 2015. (Docket No. 1.) On May 15, 2015, 

Johnson signed an agreement with the FEC to toll the statute of limitations for 30 days. (Compl. 

¶ 52; Answer ¶ 52.) Accordingly, the Commission’s claims against Johnson for legal relief, 

including a civil penalty, are time barred only to the extent Johnson violated FECA more than 

five years and thirty days before the FEC filed the complaint (i.e., on May 20, 2010 or earlier). 

Because the Commission does not seek civil penalties for conduct that occurred outside the 

statute of limitations, there is no claim for such legal relief for Johnson to defend. 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 16 of 19
15

Ltd. v. Jackson, 921 F. Supp. 2d 1366, 1372 (S.D. Fla. 2013); see also 61A Am. Jur. 2d Pleading

§ 301 (2015) (“An affirmative defense which merely points out a defect or lack of evidence in 

the plaintiff’s case is not an affirmative defense at all.”). 

 Johnson’s First Defense contends that the FEC’s complaint is “based upon illegally 

obtained and inadmissible evidence.” (Answer 1.) Johnson’s Second Defense asserts that the 

FEC’s complaint is based upon information that was subject to unspecified immunity and 

confidentiality. (Id.) These claims are baseless, but in any event, because they merely attack the 

FEC’s ability to prove its claims, they should be stricken. The parties will have the opportunity 

to raise any evidentiary objections during summary judgment briefing, see DUCivR 7-

1(b)(1)(B), or by motion in limine. 

 2. Johnson’s Claim That Evidence Was Spoliated Is Not an Affirmative 

Defense (Third Defense) 

 The Court should strike Johnson’s Third Defense because it alleges the “spoliation of 

evidence” (Answer 2), which “is not a substantive claim or defense but a rule of evidence” that 

potentially authorizes a court to impose sanctions, Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 

450 (4th Cir. 2004) (internal quotation marks omitted); see, e.g., PHL Variable Ins. Co. v. 

Sheldon Hathaway Family Ins. Trust ex rel. Hathaway, No. 2:10-CV-67, 2013 WL 6230351, at 

*8 (D. Utah Dec. 2, 2013) (unpublished) (rejecting spoliation defense in absence of authority that 

spoliation is “legally relevant as an affirmative defense”). Johnson does not even claim that 

evidence was spoliated by the FEC, but rather “other agencies of the United States.” (Answer 2.) 

Johnson pleads no basis for these claims. But even if they were true, they would at best give 

Johnson possible grounds to seek sanctions against third parties. They do not form the basis for 

a legally valid affirmative defense here. 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 17 of 19
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 3. Johnson’s Claim That the FEC Failed to State a Claim Is Not an 

Affirmative Defense (Tenth Defense) 

 Finally, the Court should strike Johnson’s Tenth Defense, which contends that the 

complaint “fails to state a claim upon which relief may be granted.” (Answer 7.) Failure to state 

a claim is not a valid affirmative defense because it alleges “a defect in the plaintiff’s claim; it is 

not an additional set of facts that bars recovery notwithstanding the plaintiff’s valid prima facie 

case.” Boldstar Technical, LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 

2007) (striking a failure-to-state-a-claim defense); see also Blakeney v. Karr, No. C13-5076, 

2013 WL 2446279, at *1 (W.D. Wash. June 5, 2013) (unpublished) (same); J & J Sports Prods., 

Inc. v. Romero, No. 1:11-CV-1880, 2012 WL 2317566, at *4 (E.D. Cal. June 18, 2012) 

(unpublished) (same); Barnes, 718 F. Supp. 2d at 1174 (same).7

 

III. CONCLUSION 

 For the foregoing reasons, the Commission requests that the Court dismiss or strike the 

answer’s defenses one through seven, ten, and paragraph 51 of defense eight. 

Respectfully submitted, 

Daniel A. Petalas (dpetalas@fec.gov) 

Acting General Counsel 

Lisa J. Stevenson (lstevenson@fec.gov) 

Deputy General Counsel – Law 

Kevin Deeley (kdeeley@fec.gov) 

Acting Associate General Counsel 

Harry J. Summers (hsummers@fec.gov) 

Assistant General Counsel 

                                                           

7

 In any event, the FEC’s complaint states claims upon which relief may be granted and 

Johnson chose not to contest the sufficiency of the complaint in his motion to dismiss. 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 18 of 19
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/s/ Kevin P. Hancock 

Kevin P. Hancock (khancock@fec.gov) 

Attorney 

 FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

November 12, 2015 (202) 694-1650 

CERTIFICATE OF SERVICE 

 I hereby certify that on November 12, 2015, I electronically filed plaintiff Federal 

Election Commission’s Motion for Partial Judgment on the Pleadings or in the Alternative to 

Strike Affirmative Defenses with the Clerk of the United States District Court for the District of 

Utah by using the Court’s CM/ECF system, which sent notification of such filing to the 

following counsel: 

Karra J. Porter, Esq. 

Scott T. Evans, Esq. 

CHRISTENSEN & JENSEN, P.C. 

Karra.Porter@chrisjen.com 

Scott.Evans@chrisjen.com 

Attorneys for Defendant Jeremy Johnson 

/s/ Kevin P. Hancock 

Kevin P. Hancock (khancock@fec.gov) 

Attorney 

FEDERAL ELECTION COMMISSION 

Case 2:15-cv-00439-DB Document 22 Filed 11/12/15 Page 19 of 19