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TN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OP COLUMBIA _
COMMON CAUSE, ) :
. Plaintife, , 8
) coal
ve ) Civil Action No. 87-2404
) _
FEDERAL ELECTION COMMISSION, } °
)

Defendant. ) =
=
~

MEMORANDUM AND ORDER

This is a "failure to act” dispute ‘brought by Common Cause

("cc") pursuant to the Federal Election Campaign Act ("FECA"), 2

U.S.C. § 437g(a) (8). CC seeks declaratory ana injunctive

relief, claiming defendant Federal Election Commission ("FEC")

should be required to act on the administrative complaint it

filed with FEC. In November 1987, the Court scheduled a period

of discovery.to be followea by the ‘submission of dispositive

motions. The matter now comes before the Court on cc's motion to

compel production of documents. Briefs have been submitted and

oral argument heard on the motion

.

Shortly after the scheduling conference initiating

discovery, FEC responded to CC's service of interrogatories and

request for production of documents by providing an expedited

answer to plaintiff's Interrogatory 1. That answer consists of

a chronology of all FEC actions on CC's administrative |

complaint. cc asserts that it cannot pursue its claim in a



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meaningful way without further discovery. FEC clains, hovever,
that this chronology provides plaintiff with sufficient
information for purposes of the "failure to act" Litigation.

“After cc filed its motion to compel, the FEC took further
action on the administrative complaint. On January 28, 198s,
FEC's Office of the General Counsel notified respondents named in
the administrative complaint that the investigation was completed
and that it would recommend a vote on probable cause be taken by
the Commission. Pursuant to FECA, this notification included ma
brief stating the position of the general counsel on the legal
and factual issues of the case." 2 U.S.C. § 437g(a) (3).2
Respondents now have 15 days from the receipt of the notification
and brief to submit a reply brief setting forth their position
and responding to the general counsel's brief. id. The briefs
then will be submitted to the Commission for determination of
whether or not there is "probable cause to believe that any
person has committed, or is about to commit, a violation" of the
Act. Id. § 4379 (4) (A) (i). _Once this decision is made, statutory
deadlines are triggered and certai: nty exists as ts the final
processing of the complaint. Id,

FEC argues that the briefing is a decisive step in the

process and a final decision on the complaint by the Commission
is in sight. Accordingly, it insists there is no need for

further discovery since the Commission's investigation has been

Jat oral a ent CC indicated its motion to compel would
be satisfied if Ye wa was provided with this brief.



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terminated and therefore the question of delay during the
investigatory phase of the process is moot. Plaintife: counters
that there is no statutory requirenent as to the length of time
the Commission may take in deliberating over the probable cause
iesue and urges that without some deadline the FEC can drag its
feet indefinitely. FEC, however, has assured the Court that
there is no reascn to believe it will handle cc's relatively
straightforward complaint at this stage any more or less
expeditiously than it has handled other similar cases. The Court
of Appeals for this Circuit has signaled its approval of the
Commission's routine manner of handling these cases. FEC y,
Rose, 806 F.2d 1081, 1084, 1092 (D.C. Cir. 1986).

The Court sees no need for additional discovery focusing on
delay during the investigatory phase. Accordingly, CC's motion
to compel production of documents is denied, provided that FEC
continues promptly to update its chronology. It is further
ordered that the Commission promptly inform cc and the Court of
the time it will require to reach its final decision once it has.
received the briefs of the parties to the administrative

proceeding. Once these procedures are completed the complaint
shall be dismissed.

SO ORDERED.

UNITED STATES DISTRI URT

February y » 1988