UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Civil Action No. 23 - 1555 (LLA)
JAMES T. ABBOTT,
Defendant.
MEMORANDUM OPINION
Plaintiff United States of America seeks a civil penalty of $40,000 from Defendant James
T. Abbott for his failure to file financial disclosure reports required by the Ethics in Government
Act (“EIGA”), 5 U.S.C. § 13101 et seq. The parties have filed cross-motions for summary
judgment. ECF Nos. 22, 23. For the reasons that follow, the court will grant the United States’
motion for summary judgment and deny Mr. Abbott’s motion for summary judgment.
I. STATUTORY BACKGROUND
Enacted in the aftermath of Watergate, the EIGA “established financial reporting
requirements for key personnel in each of the three branches of the federal government.” United
States v. Rose, 28 F.3d 181, 183 (D.C. Cir. 1994). Covered government employees must disclose
financial information such as their “income, gifts received, property interests, liabilities, real estate
and securities transactions, positions held, and the value of a qualified blind trust.” Lovitky v.
Trump, 949 F.3d 753, 755 (D.C. Cir. 2020); see 5 U.S.C. § 13104. The EIGA is designed to
“increase public confidence in the federal government, demonstrate the integrity of government officials, . . . and enhance the ability of the citizenry to judge the performance of public officials.”
Lovitky, 949 F.3d at 755 (quoting United States v. Oakar, 111 F.3d 146, 148 (D.C. Cir. 1997)).
As relevant here, the EIGA’s financial reporting requirements apply to employees in the
Executive Branch who hold a position compensated at a rate of basic pay that is “equal to or greater
than 120 percent of the minimum rate of basic pay payable for GS-15 of the General Schedule.”
5 U.S.C. § 13103(f)(3). Among other obligations, a covered individual must file an annual
financial disclosure report by May 15 of the year following the reporting year (“Annual Report”),
5 U.S.C. § 13103(d); 5 C.F.R. § 2634.201(a) (2025), and he must file a report “on or before the
30th day after termination of employment,” unless he has accepted another position covered by
the EIGA (“Termination Report”), 5 U.S.C. § 13103(e); 5 C.F.R. § 2634.201(e).
Failure to comply with the EIGA may result in civil and criminal penalties. 5 U.S.C.
§ 13106(a). As relevant here, the Attorney General may bring a civil action against “any
individual . . . who knowingly and willfully fails to file or report any information that such
individual is required to report.” Id. § 13106(a)(1). In 2007, Congress increased the maximum
civil penalty from $10,000 to $50,000, which, after adjustment for inflation, was a maximum
penalty of $71,316 at the time the United States filed suit.1 See Honest Leadership and Open
Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735, 775-76 (Sep. 14, 2007); 5 U.S.C.
§ 13106(a)(1); 5 C.F.R. § 2634.701(b) (2023); see also 28 U.S.C. § 2461 note (requiring
adjustment of maximum penalty for inflation).
1 The current inflation-adjusted maximum penalty is $75,540. See 5 C.F.R. § 2634.701(b) (2025).
2 II. FACTUAL BACKGROUND
From 1986 to 2004, Mr. Abbott held positions in the federal government in which he
“carried significant responsibility in administering ethics in general, and specifically, the Ethics in
Government Act.” ECF No. 23-2, at 1 ¶ 1; ECF No. 28-1, at 1 ¶ 1. He timely filed his required
financial disclosure reports “every year since at least 1990.” ECF No. 23-2, at 1 ¶ 1; ECF
No. 28-1, at 1 ¶ 1; see ECF No. 22-3, at 2 ¶ 3 (noting that Mr. Abbott had satisfied his annual
reporting obligations from 2007 to 2020).2
In September 2017, President Donald J. Trump nominated Mr. Abbott to serve as a
Member of the Federal Labor Relations Authority (“FLRA”). ECF No. 23-2, at 2 ¶ 3; ECF
No. 28-1, at 2 ¶ 3. After being confirmed by the Senate, Mr. Abbott was sworn in on December 11,
2017. ECF No. 1 ¶ 12; ECF No. 22-2, at 1 ¶ 1; ECF No. 23-2, at 2 ¶ 3; ECF No. 28-1, at 2 ¶ 3.
His term was set to expire on July 1, 2020, but, by statute, it carried over until his successor took
office. ECF No. 23-2, at 2 ¶ 3; ECF No. 28-1, at 2 ¶ 3; see 5 U.S.C. § 7104(c). Upon the
appointment of his successor on May 17, 2022, Mr. Abbott separated from the federal government.
ECF No. 1 ¶ 16; ECF No. 22-2, at 1-2 ¶ 5; ECF No. 23-2, at 2 ¶ 3; ECF No. 28-1, at 2 ¶ 3.3
As an FLRA Member, Mr. Abbott’s salary was greater than 120 percent of the minimum
rate of basic pay for GS-15,4 so he was required to file annual financial disclosure reports. ECF
No. 1 ¶¶ 13-14; ECF No. 22-2, at 1 ¶¶ 2-3; ECF No. 23-2, at 3 ¶ 12; ECF No. 28-1, at 4 ¶ 12; see
2 When citing ECF Nos. 22-3 and 22-4, the court uses the page numbers generated by CM/ECF. 3 Mr. Abbott takes issue with the circumstances of his separation from the FLRA, contending that it was retaliatory. See ECF No. 23-2, at 2-3 ¶¶ 4-9; ECF No. 23-3, at 3-6 ¶¶ 6-10. The Department of Justice (“DOJ”) contends—and the court agrees—that the details of Mr. Abbott’s separation are immaterial to the present dispute. ECF No. 28-1, at 2-3 ¶¶ 4-9. 4 Mr. Abbott’s annual salary was $180,570, which is greater than 120% of the then-basic GS-15 rate of $110,460. ECF No. 1 ¶ 13; ECF No. 22-2, at 1 ¶ 2.
3 5 U.S.C. § 13103(d), (f)(3). Mr. Abbott complied with his annual reporting obligations from 2017
to 2020. ECF No. 22-3, at 2 ¶ 3; ECF No. 23-2, at 1 ¶ 1; ECF No. 28-1, at 1 ¶ 1.
Mr. Abbott was required to file his Annual Report for the 2021 calendar year by the
statutory deadline of May 15, 2022. ECF No. 1 ¶ 14; ECF No. 22-2, at 1 ¶ 4; ECF No. 23-2, at 3
¶ 12; ECF No. 28-1, at 4 ¶ 12; see 5 U.S.C. § 13103(d). He did not meet this deadline, and on
May 16, the FLRA’s Alternative Designated Agency Ethics Official (“ADAEO”),
Rebecca Osborne, emailed Mr. Abbott to ask whether he needed a forty-five-day extension for his
Annual Report. ECF No. 1 ¶ 15; ECF No. 22-3, at 1 ¶ 1. Mr. Abbott did not respond. ECF No. 1
¶ 15.
Mr. Abbott was also required to file his Termination Report by June 16, 2022. ECF No. 1
¶ 17; ECF No. 22-2, at 2 ¶ 6; ECF No. 23-2, at 4 ¶ 13; ECF No. 28-1, at 4-5 ¶ 13; see 5 U.S.C.
§ 13103(e). On May 19, two days after his separation from the FLRA, Ms. Osborne sent an email
to Mr. Abbott at his personal email address and instructed him to file a combined Annual and
Termination Report that covered the period from January 1, 2021 through May 17, 2022 by
June 30. ECF No. 1 ¶ 19; ECF No. 22-3, at 3 ¶ 9, 8 (Ex. C); ECF No. 23-2, at 4 ¶ 14; ECF
No. 28-1, at 5 ¶ 14. Mr. Abbott also did not respond to this email. ECF No. 1 ¶ 19; ECF No. 22-3,
at 3 ¶ 9.
In the days leading up to the June 30, 2022 deadline, Ms. Osborne followed up with
Mr. Abbott via email and left a voicemail at his personal phone number. ECF No. 1 ¶¶ 20-21;
ECF No. 22-3, at 3 ¶¶ 9-11, 10 (Ex. D), 13 (Ex. E). On June 29, Mr. Abbott responded to
Ms. Osborne’s email and asked if he owed “1 or 2 reports.” ECF No. 22-3, at 3 ¶ 12, 15 (Ex. F);
see ECF No. 1 ¶ 22; ECF No. 23-2, at 4 ¶ 16; ECF No. 28-1, at 5 ¶ 16. Ms. Osborne responded
shortly thereafter, explaining that he was required to submit one combined report covering
4 January 1, 2021 through May 17, 2022. ECF No. 1 ¶ 23; ECF No. 22-3, at 3 ¶ 13, 15 (Ex. F). She
granted Mr. Abbott another forty-five-day extension, until August 14, to file the combined report
and indicated that this deadline was “the outer-limit of extensions that we give.” ECF No. 1 ¶ 23;
ECF No. 22-3, at 3 ¶ 13, 15 (Ex. F); ECF No. 23-2, at 4 ¶ 15; ECF No. 28-1, at 5 ¶ 15.
On July 28, 2022, Ms. Osborne sent another email to Mr. Abbott reminding him that his
combined report was due on August 14 and that no additional extension would be given. ECF
No. 1 ¶ 24; ECF No. 22-3, at 3 ¶ 14, 19 (Ex. G). Mr. Abbott did not file his combined report by
the deadline. ECF No. 1 ¶ 25; ECF No. 22-2, at 2 ¶ 10; ECF No. 23-2, at 4 ¶ 15; ECF No. 28-1,
at 5 ¶ 15.
After Mr. Abbott missed the filing deadline, the government made various attempts to
contact him about the overdue report. Beginning August 14, 2022, the government sent weekly
automated reminders to Mr. Abbott’s personal email explaining that his report was past due. ECF
No. 1 ¶ 25; ECF No. 22-2, at 2 ¶ 11. On August 15, Ms. Osborne again emailed Mr. Abbott asking
when he would be able to submit the report. ECF No. 1 ¶ 26; ECF No. 22-3, at 4 ¶ 16, 23 (Ex. H).
In late August, the Executive Director of the FLRA sent a letter by certified mail to Mr. Abbott’s
home address asking him to complete the report “as soon as possible.” ECF No. 22-3, at 4 ¶ 17,
27-30 (Ex. I); see ECF No. 1 ¶ 27. The letter also noted that the FLRA could not give extensions
beyond the ninety days it had already provided. ECF No. 22-3, at 4 ¶ 17, 27-28 (Ex. I). A member
of Mr. Abbott’s household signed the return receipt. Id. at 30. And in September and October,
Ms. Osborne continued to email Mr. Abbott about the report. ECF No. 1 ¶¶ 28-29; ECF No. 22-3,
at 4 ¶¶ 18-19, 32 (Ex. J), 35 (Ex. M). Mr. Abbott did not respond to any of these communications.
ECF No. 1 ¶¶ 28-29; ECF No. 22-3, at 4 ¶¶ 18-19.
5 On November 25, 2022, Ms. Osborne emailed Mr. Abbott yet again, this time advising him
that if he did not submit the combined report within a week, the “next step w[ould] be to refer this
matter to the Department of Justice [(“DOJ”)].” ECF No. 1 ¶ 30; ECF No. 22-3, at 4 ¶ 20, 37
(Ex. O); ECF No. 23-2, at 4 ¶ 17; ECF No. 28-1, at 5 ¶ 17. Mr. Abbott responded that same day:
I know that you mean well and I have nothing against you. But really? Why would they refer it to DOJ?? They already got rid of me just like they wanted to. I will be doing it but they have no desire to do that. I am not even convinced that they have jurisdiction to do anything. They might well want to invest those resources into prosecuting Hunter Biden, rather than harassing President Trump and those who worked in his administration.
ECF No. 1 ¶ 30 (typo omitted); ECF No. 22-3, at 4-5 ¶ 20, 39 (Ex. P); ECF No. 23-2 ¶ 16; ECF
No. 28-1, at 5 ¶ 16. Ms. Osborne responded that a referral to the DOJ was the next step in the
process if Mr. Abbott did not file his report. ECF No. 1 ¶ 31; ECF No. 22-3, at 5 ¶ 21, 41 (Ex. Q).
In January 2023, the Office of Government Ethics (“OGE”) sent a letter to the FLRA
noting that Mr. Abbott still had not filed his report. ECF No. 1 ¶ 32; ECF No. 22-3, at 5 ¶ 22, 46
(Ex. S). The letter explained that the FLRA “must collect the report . . . from Mr. Abbott in order
to certify and forward the report to OGE as soon as possible[] or make the appropriate referral to
the Department of Justice.” ECF No. 1 ¶ 32; ECF No. 22-3, at 5 ¶ 22, 46 (Ex. S). Ms. Osborne
forwarded this letter to Mr. Abbott via email on January 30, 2023, advising him that the FLRA
would refer the matter to the DOJ if he did not file his combined report. ECF No. 1 ¶ 33; ECF
No. 22-3, at 5 ¶ 23, 48-49 (Ex. T); ECF No. 28-1, at 5-6 ¶ 18. Once again, Mr. Abbott did not
respond. ECF No. 1 ¶ 33; ECF No. 22-3, at 5 ¶ 23. Ms. Osborne referred Mr. Abbott’s case to
the DOJ on March 22, 2023. ECF No. 1 ¶ 33; ECF No. 23-2, at 4 ¶ 18; ECF No. 28-1, at 5-6 ¶ 18;
ECF No. 28-2 ¶ 10.
6 By certified mail delivered April 28, 2023, the DOJ informed Mr. Abbott that it had
“authorized the filing of a civil action against [him] to require [his] compliance with [his] EIGA
obligations and to obtain a civil penalty.” ECF No. 22-4, at 1 ¶¶ 2-3, 4 (Ex. A), 6 (Ex. B). The
DOJ stated that it would file suit “on or about May 30, 2023” and offered Mr. Abbott the
opportunity to resolve the matter without litigation by contacting the assigned DOJ attorney no
later than May 12, 2023. Id. at 4. Mr. Abbott did not respond by the May 12 deadline. ECF No. 7,
at 8.
On May 31, 2023, the DOJ filed its complaint against Mr. Abbott. ECF No. 1. Also on
May 31, Mr. Abbott filed his required combined report.5 ECF No. 22-2, at 3 ¶ 14; ECF No. 23-2,
at 5 ¶ 22; ECF No. 28-1, at 8 ¶ 22; see ECF No. 9 (report filed under seal). Because Mr. Abbott’s
report was filed late, the OGE could not review it and closed Mr. Abbott’s report without certifying
it. ECF No. 22-2, at 3 ¶ 15; ECF No. 22-3, at 5 ¶ 27.
III. PROCEDURAL HISTORY
As noted, the DOJ filed suit on May 31, 2023, seeking an order requiring Mr. Abbott to
file his combined report and pay a civil penalty and a $200 late-filing fee. ECF No. 1, at 7. Service
was effected on June 9, and Mr. Abbott’s deadline to respond to the complaint was June 30. ECF
5 Mr. Abbott objects to the DOJ’s statements that he “did not submit the required financial reporting at any time prior to the commencement of this litigation on May 31, 2023” and that he electronically submitted his report “[s]hortly after the complaint was filed.” ECF No. 22-2, at 3 ¶¶ 13-14; see ECF No. 23-2, at 6-7 ¶¶ 13-14. He contends that he did not know that the DOJ had already filed suit against him when he filed his combined report. ECF No. 23-2, at 5 ¶ 22. The court deems this timing dispute immaterial because the parties do not dispute that Mr. Abbott filed his report on May 31, 2023—nine months after the twice-extended August 14, 2022 deadline. See ECF No. 22-2, at 2 ¶ 10; ECF No. 23-2, at 4-5 ¶¶ 15, 22; ECF No. 28-1, at 5 ¶ 15. Nor do the parties dispute that Mr. Abbott received notice on April 28, 2023 that the DOJ intended to file suit “on or about May 30, 2023.” ECF No. 22-4, at 1 ¶¶ 2-3, 4 (Ex. A), 6 (Ex. B); ECF No. 28-1, at 8 ¶ 22; see generally ECF No. 23-2.
7 No. 3, at 1-2. Mr. Abbott failed to appear or respond to the complaint by the deadline. On July 7,
Mr. Abbott sent an email to the DOJ noting that he had filed his financial disclosure report and
requesting that the agency “withdraw the matter avoiding the necessity of filing a Motion to
Dismiss.” ECF No. 22-4, at 1 ¶ 4, 9 (Ex. C); see ECF No. 23-2, at 6 ¶ 24; ECF No. 28-1, at 7-8
¶ 21. The DOJ responded that it would not withdraw the complaint but that it was “willing to
discuss any reasonable settlement offer for the civil penalty sought” or “a reasonable extension of”
Mr. Abbott’s deadline to respond to the complaint. ECF No. 22-4, at 1 ¶ 4, 8 (Ex. C). Mr. Abbott
did not respond to the email.
The DOJ subsequently requested that the Clerk of Court enter a default against Mr. Abbott,
ECF No. 4, which the Clerk did on September 7, 2023, ECF No. 6. The DOJ moved for a default
judgment on October 31. ECF No. 7.
The case was reassigned to the undersigned in December 2023. Dec. 14, 2023 Docket
Entry. On December 15, Mr. Abbott appeared in the case and filed motions for mediation and an
extension of time to respond to the DOJ’s motion for default judgment. ECF Nos. 10, 11. The
DOJ did not oppose Mr. Abbott’s motion for mediation, ECF No. 12, at 2, and the court referred
the matter to a magistrate judge for mediation, Jan. 9, 2024 Minute Order. After mediation proved
unsuccessful, ECF Nos. 16, 20, the court denied the DOJ’s motion for default judgment, explaining
that a default judgment was not appropriate because Mr. Abbott was “no longer ‘essentially
unresponsive,’” Aug. 29, 2024 Minute Order (quoting Kim v. Andy Lee Liquor, Inc.,
No. 20-CV-3283, 2023 WL 6388930, at *3 (D.D.C. Sep. 29, 2023)). The court noted, however,
that Mr. Abbott would still “‘have to face the consequences of [his] default’—which he ha[d] not
sought to set aside—meaning that ‘[he] is deem[ed] to [have] admit[ted] every well-pleaded
8 allegation in the complaint.’” Id. (internal quotation marks omitted) (quoting Kim, 2023 WL
6388930, at *3).
The parties thereafter briefed cross-motions for summary judgment. ECF Nos. 22, 23, 25,
27 to 31. In its motion, the DOJ seeks a civil penalty of $40,000 against Mr. Abbott. ECF
No. 22-1, at 1. In his motion, Mr. Abbott argues that he did not willfully fail to report in violation
of the EIGA and that, if the court finds otherwise, only a de minimis penalty is warranted. ECF
No. 23-1, at 1. The motions are ripe for disposition. ECF Nos. 22, 23, 25, 27 to 31.
IV. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only
if there is no genuine issue of material fact and judgment in the movant’s favor is proper as a matter
of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
see Fed. R. Civ. P. 56(a). A material fact is one which “might affect the outcome of the suit under
the governing law,” and a “dispute about a material fact is ‘genuine’” when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). At summary judgment, the moving party bears the burden of
demonstrating “the absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by
materials in the record that would be admissible at trial and that could enable a reasonable jury to
find in its favor, see Liberty Lobby, 477 U.S. at 248 (1986); see also Allen v. Johnson, 795 F.3d
34, 38-39 (D.C. Cir. 2015).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing
9 Prods., Inc., 530 U.S. 133, 150-51 (2000) (quoting Liberty Lobby, 477 U.S. at 255); see Burley v.
Nat’l Passenger Rail Corp., 801 F.3d 290, 295-96 (D.C. Cir. 2015). Accordingly, “[t]he evidence
of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam) (alteration in original) (quoting Liberty
Lobby, 477 U.S. at 255). However, the nonmoving party must still establish more than “[t]he mere
existence of a scintilla of evidence in support of [his] position,” Liberty Lobby, 477 U.S. at 252,
and may not rely on “mere allegations” or conclusory statements, Equal Rts. Ctr. v. Post Props.,
Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (quoting Sierra Club v. Env’t Prot. Agency, 292
F.3d 895, 898-99 (D.C. Cir. 2002)). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations
omitted).
When parties file cross-motions for summary judgment, each motion is viewed separately
in the light most favorable to the nonmoving party, with the court “determining, for each side,
whether a judgment may be entered in accordance with the Rule 56 standard.” Auto-Owners Ins.
Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016) (quoting 10A Charles Alan Wright
et al., Federal Practice and Procedure § 2720 (3d ed. 2016)); see Fox v. Transam Leasing, Inc.,
839 F.3d 1209, 1213 (10th Cir. 2016); Pac. Indem. Co. v. Deming, 828 F.3d 19, 23 (1st Cir. 2016).
V. DISCUSSION
A. Liability
The EIGA imposes civil liability on an individual if three requirements are met: (1) the
individual is “required to file a report pursuant to 5 U.S.C. § 13104”; (2) the individual “failed to
file the report”; and (3) his failure is “‘knowing[] and willful[].’” United States v. Neelon,
No. 23-CV-3177, 2024 WL 2153099, at *3 (D.D.C. May 14, 2024) (quoting 5 U.S.C. § 13106(a)).
10 Here, there is no dispute that Mr. Abbott satisfies the first two elements. As an FLRA Member,
Mr. Abbott was required to file an Annual Report and a Termination Report because he “was an
employee in the Executive Branch whose compensation exceeded ‘120 percent of the minimum
rate of basic pay payable for GS-15 of the General Schedule.’” Id. at *3 (quoting
5 U.S.C. § 13103(f)); see ECF No. 1 ¶¶ 13-14, 17; ECF No. 22-2, at 1 ¶¶ 2-3; ECF No. 23-2, at 3
¶¶ 12-13; ECF No. 28-1, at 4-5 ¶¶ 12-13. Mr. Abbott failed to file these reports in a timely
manner, despite being given two extensions to do so. ECF No. 1 ¶¶ 19, 23-25; ECF No. 22-2, at 2
¶ 10; ECF No. 23-2, at 4-5 ¶¶ 15, 22; ECF No. 28-1, at 5 ¶ 15. Mr. Abbott filed his combined
report on May 31, 2023, more than nine months after his final deadline of August 14, 2022. ECF
No. 22-2, at 2-3 ¶¶ 10, 14; ECF No. 23-2, at 4-5 ¶¶ 15, 22; ECF No. 28-1, at 5 ¶ 15. Mr. Abbott
also does not dispute that his failure to timely report was knowing. See ECF No. 23-1, at 8-9; ECF
No. 30, at 2-3. Nor could he, considering the government’s copious reminders—which he does
not dispute receiving—and his admitted familiarity with the EIGA’s reporting requirements. ECF
No. 23-3, at 2 ¶ 2 (“From 1986 until 2004, every position I held carried significant responsibility
in administering ethics in general, and specifically, the EIGA.”); see generally ECF No. 23-2.
Accordingly, the only question before the court is whether Mr. Abbott “willfully” failed to report.6
Generally, “[a]n individual knowingly and willfully fails to comply with the EIGA
requirements when that individual intentionally disregards the statute or is indifferent to its
requirements.” United States v. Manigault Newman, 594 F. Supp. 3d 1, 6 (D.D.C. 2022)
(alteration in original) (quoting United States v. Lairy, No. 19-CV-2488, 2020 WL 4039176, at *2
6 As a result of his default, Mr. Abbott is deemed to have admitted each of the well-pleaded allegations in the complaint. United States v. All Assets Held at Bank Julius Baer & Co., 743 F. Supp. 3d 204, 218 (D.D.C. 2024). However, the issue of whether Mr. Abbott’s noncompliance was “willful” is a legal question that this court must resolve.
11 (D.D.C. July 17, 2020)). A violation is considered willful if “the defendant acted with knowledge
that his conduct was unlawful.” Id. (quoting Bryan v. United States, 524 U.S. 184, 191-92 (1998)).
This court has “consistently found knowing and willful violations of the EIGA when defendants
failed to take action despite multiple communications from the Government.” Neelon, 2024 WL
2153099, at *3; see, e.g., Manigault Newman, 594 F. Supp. 3d at 6; United States v. Hunter,
No. 14-CV-442, ECF No. 8, at 3 (D.D.C. Aug. 27, 2014).
As support that Mr. Abbott’s violation was willful, the DOJ provides a declaration from
Ms. Osborne, with accompanying exhibits, to argue that Mr. Abbott was “well aware of [his]
obligation to file [his report] . . . having received countless reminders” but nevertheless failed to
do so in a timely manner. ECF No. 22-1, at 13 (quoting Manigault Newman, 594 F. Supp. 3d at 6);
see ECF No. 22-3, at 3-5 ¶¶ 9-11, 13-21, 23, 8 (Ex. C), 10 (Ex. D), 13 (Ex. E), 15 (Ex. F), 19
(Ex. G), 23-25 (Ex. H), 27-30 (Ex. I), 32 (Ex. J), 35 (Ex. M), 37 (Ex. O), 41 (Ex. Q), 48 (Ex. T).
The declaration and exhibits establish that, as in Neelon, the government attempted to reach
Mr. Abbott via “automated email reminders, emails from ethics officials, and certified letters” for
approximately one year. 2024 WL 2153099, at *3. Mr. Abbott also “acknowledged receipt of at
least one of the email reminders” that Ms. Osborne had sent him leading up to the August 14, 2022
deadline. Id.; see ECF No. 22-3, at 3 ¶ 12, 15 (Ex. F); ECF No. 23-2, at 4 ¶ 16; ECF No. 28-1,
at 5 ¶ 16. Specifically, in his June 29 email, Mr. Abbott asked whether he needed to submit “1 or 2
reports,” ECF No. 22-3, at 15, which “clearly demonstrated that [he] knew what was required” of
him in terms of filing both the Annual and Termination Reports, United States v. Chaney,
No. 04-CV-2219, 2005 WL 8178308, at *2 (D.D.C. Feb. 28, 2005). And after the August 14
deadline had passed, Mr. Abbott responded to another email advising him that the matter would
be referred to the DOJ if he did not submit his combined report, but he still did not submit the
12 required report or request assistance with doing so. ECF No. 22-3, at 4-5 ¶ 20, 39 (Ex. P); ECF
No. 23-2, at 4 ¶¶ 16-17; ECF No. 28-1, at 5 ¶¶ 16-17. By responding that he “w[ould] be doing
it,” ECF No. 22-3, at 39, and then failing to do so, it is hard to characterize Mr. Abbott’s conduct
as anything but willful.
Against the DOJ’s evidence, Mr. Abbott argues that his untimely filing was not willful
because it was “due to extenuating circumstances beyond his control,” namely, that the FLRA
denied him access to his files after he separated from the federal government, which hindered his
ability to complete the report, and that personal circumstances in 2023 delayed his submission.
ECF No. 23-1, at 8-9; ECF No. 30, at 2-3. These allegations fail to create a genuine dispute of
material fact about whether Mr. Abbott’s failure to timely file was willful.
Mr. Abbott first contends that, after his termination, FLRA leadership denied him access
to his office files and computer, which contained his prior financial disclosure reports, “thereby
preventing him from being certain that his combined financial disclosure report would be accurate
and consistent.” ECF No. 23-1, at 8-9. While Mr. Abbott claims that “the FLRA never gave [him]
access to the documents he needed,” id. at 10, he points to scant evidence that he attempted to
obtain those materials, relying only on his own declaration, in which he states that he and
Ms. Osborne spoke about these issues, see ECF No. 23-3, at 6-7 ¶¶ 12-13. The DOJ counters with
an affidavit from Ms. Osborne stating that her only conversations with Mr. Abbott after his
departure from the FLRA were his two email responses in June and November 2022, which did
not mention these issues, and that the two did not have any oral conversations after his separation.
ECF No. 28, at 4-5; ECF No. 28-2, at 2 ¶¶ 4-9.
Drawing all inferences in Mr. Abbott’s favor, at best Mr. Abbott can show that
Ms. Osborne was aware of his inability to access materials in his office, but there is no indication
13 that he sought her assistance in retrieving any needed materials. In a similar circumstance where
the defendant “made no effort to retrieve th[e] documents” later alleged to have been necessary to
complete a financial disclosure under the EIGA, the court found the factual dispute “immaterial,”
explaining that “even if the documents were necessary to complete [the] report . . . that fact would
not refute that [the defendant] willfully disregarded the EIGA’s requirements.” Manigault
Newman, 594 F. Supp. 3d at 7.7 What is more, as the DOJ explains, Mr. Abbott “should have been
aware that his prior financial submissions [we]re available upon request through the OGE
website,” ECF No. 28, at 4-5, indicating that any dispute about his ability to access materials in
his office is not material because he could have procured them from another source.
Mr. Abbott next claims that he was unable to report because of “personal circumstances”
including being out of the country for three-and-a-half weeks in February and March 2023 and
being a victim of an assault and battery in May 2023. ECF No. 23-1, at 9. These allegations, too,
fail to create a genuine dispute of material fact. Mr. Abbott’s Annual Report was initially due on
May 15, 2022, and his Termination Report was initially due on June 16, 2022. See ECF No. 1
¶¶ 14, 17; ECF No. 22-2, at 1-2 ¶¶ 4, 6; ECF No. 23-2, at 3-4 ¶¶ 12-13; ECF No. 28-1, at 4-5
¶¶ 12-13. After being granted two extensions—the maximum permitted by the EIGA, see 5 U.S.C.
§ 13103(g); 5 C.F.R. § 2634.201(g)—his combined report was due on August 14, 2022, but
Mr. Abbott failed to file his report by this deadline, nearly six months before he encountered any
challenging personal circumstances, see ECF No. 1 ¶¶ 19, 25; ECF No. 22-2, at 2 ¶ 10; ECF
No. 23-2, at 4 ¶¶ 14-15; ECF No. 28-1, at 5 ¶¶ 14-15. There is thus no genuine dispute that
7 As the DOJ notes, the fact that Mr. Abbott eventually submitted his combined report without access to materials in his office also “belies his claim of the need for his office materials.” ECF No. 28, at 4.
14 Mr. Abbott would have timely filed his combined report if he had not been out of the country in
February and March 2023 and assaulted in May 2023, because he had already been out of
compliance with the EIGA for six months. Cf. Manigault Newman, 594 F. Supp. 3d at 6
(concluding that the defendant’s failure to file her report for more than one year after the statutory
deadline was willful); Lairy, 2020 WL 4039176, at *3 (finding a knowing and willing violation
where the defendant “intentionally disregarded the statute by failing to file the required report for
over six months,” even after experiencing technical difficulties and a government shutdown that
made technical support unavailable).
Finally, Mr. Abbott argues that his violation was not “ongoing” because he filed his report
when threatened with legal action. ECF No. 30, at 2-3. While that fact may bear on the appropriate
penalty, see Chaney, 2005 WL 8178308, at *2, it does not refute the fact that Mr. Abbott, “at best[,]
was indifferent to the EIGA’s filing requirements,” United States v. Gant, 268 F. Supp. 2d 29, 33
(D.D.C. 2003). Mr. Abbott also represents that, having administered the EIGA in previous
positions in the federal government, he “recognized the importance of the EIGA requirements,”
ECF No. 23-1, at 8, leaving the court hard-pressed to conclude that he did not intentionally flout
his reporting obligations under the statute.8 Accordingly, the court concludes that Mr. Abbott
willfully failed to file his financial disclosure report.
B. Penalty
Having concluded that Mr. Abbott violated the EIGA, “all that remains is the question of
the appropriate penalty.” Manigault Newman, 594 F. Supp. 3d at 8. The EIGA leaves the amount
8 In fact, Mr. Abbott once served in the same position that Ms. Osborne held while attempting to obtain his compliance. See ECF No. 23-3, at 2 ¶ 3 (noting that Mr. Abbott previously served as the ADAEO at three Department of Defense agencies).
15 of the civil penalty to the court’s discretion, and “courts generally have tailored the penalty to the
offense and attendant circumstances.” Gant, 268 F. Supp. 2d at 33. The DOJ argues that
Mr. Abbott should be held liable for $40,000—about 56% of the inflation-adjusted statutory
maximum at the time of the DOJ’s complaint and about 53% of the current maximum penalty.
ECF No. 22-1, at 4, 19 n.4. The court agrees.
In determining the penalty under the EIGA, courts consider factors including (1) whether
the defendant’s noncompliance was “flagrant and ongoing,” Lairy, 2020 WL 4039176, at *3
(quoting Gant, 268 F. Supp. 2d at 34); see, e.g., Manigault Newman, 594 F. Supp. 3d at 8-9;
Chaney, 2005 WL 8178308, at *2-3; (2) the defendant’s history of compliance with the EIGA,
see, e.g., Neelon, 2024 WL 2153099, at *3; (3) whether the defendant was “motivated by a desire
to avoid reporting transactions,” id.; see e.g., Lairy, 2020 WL 4039176, at *3; and (4) the
defendant’s financial resources, see, e.g., Manigault Newman, 594 F. Supp. 3d at 9; Lairy, 2020
WL 4039176, at *3.9 The court addresses each factor in turn.
9 The parties dispute the precise formulation of the factors that govern the court’s determination of a civil penalty under the EIGA. Compare ECF No. 23-1, at 7, and ECF No. 30, at 3-4, with ECF No. 28, at 7. The DOJ applies the five factors from Securities & Exchange Commission v. Milan Group, 124 F. Supp. 3d 21, 25 (D.D.C. 2015)—four of which the DOJ argues weigh in favor of a significant penalty, ECF No. 22-1, at 14-15. These factors are: “(1) the egregiousness of the defendant’s conduct; (2) the degree of scienter; (3) whether the conduct created substantial losses or the risk of substantial losses to other persons; (4) whether the conduct was isolated or recurrent; and (5) whether the penalty should be reduced due to demonstrated current and future financial condition.” Milan Grp., 124 F. Supp. 3d at 25. Mr. Abbott counters that the Milan Group factors are limited to the securities fraud context and argues that in EIGA cases, courts consider: (1) whether the violation was flagrant and ongoing; (2) the filer’s prior history of compliance with the EIGA; (3) whether the filer was motivated by a desire to avoid reporting transactions; and (4) the filer’s financial resources. ECF No. 30, at 3-4. The DOJ replies that the analysis is the same under either approach, ECF No. 28, at 7-8, so the court will use Mr. Abbott’s construction of the factors.
16 Flagrant and ongoing violation. The DOJ argues that Mr. Abbott’s conduct was egregious
and flagrant because he refused to file his report for over a year, “cast unfounded aspersions on
the FLRA’s attempt to obtain his compliance, and then failed to avail himself of numerous
opportunities to come into compliance before litigation commenced.” ECF No. 22-1, at 15; ECF
No. 28, at 8-11. The DOJ also points to Mr. Abbott’s “gamesmanship” in submitting his report
“right after the complaint was filed,” comparing Mr. Abbott to the defendant in Manigault
Newman who received the maximum penalty after filing her termination report more than a year-
and-a-half after the deadline and about two-and-a-half months after the DOJ filed suit. ECF
No. 22-1, at 15-16; see Manigault Newman, 594 F. Supp. 3d at 3, 8-9.
Mr. Abbott argues that his violation was not “ongoing” because he filed his report before
he learned of the DOJ’s suit, distinguishing his situation from other, more flagrant violators, such
as the defendants in Gant, Lairy, and Neelon, who never filed their reports. ECF No. 23-1, at 9-11;
ECF No. 30, at 2, 4. Specifically, he contends that “[a]n individual who files his EIGA report
when threatened with legal action”—as opposed to during the course of litigation—“has not
engaged in an ongoing violation.” ECF No. 23-1, at 9 (emphasis added). Mr. Abbott further
argues that his conduct was not flagrant because he explained his extenuating circumstances to
Ms. Osborne and DOJ counsel. Id.; ECF No. 30, at 4.
The court agrees with the DOJ that Mr. Abbott’s noncompliance over the course of nine
months after his final deadline despite repeated reminders from Ms. Osborne and others is
sufficient to deem his conduct flagrant and ongoing. While Mr. Abbott eventually did file his
report, an individual is not entitled to a de minimis penalty following months of recalcitrance
simply because he complies once the DOJ threatens to file suit against him. Such a rule would
contravene the EIGA’s “deterrent aims,” Manigault Newman, 594 F. Supp. 3d at 9, and cause
17 agency ethics officials and the DOJ to expend resources that would not be necessary in the face of
timely compliance.10 Here, for example, Ms. Osborne spent months attempting to reach
Mr. Abbott, and the DOJ attempted to resolve the matter without filing suit. Additionally, as a
result of Mr. Abbott’s late filing, the OGE was unable to certify the report, frustrating the EIGA’s
aims. ECF No. 22-2, at 3 ¶ 15; ECF No. 22-3, at 5 ¶ 27.
Nor do Mr. Abbott’s extenuating circumstances warrant a lesser penalty. As the court has
already explained, Mr. Abbott does not contend that he asked for assistance in gaining access to
his files in order to complete his report, despite Ms. Obsorne’s considerable outreach. See supra
pp. 13-14. And Mr. Abbott’s claim that he spoke with DOJ counsel about his personal
circumstances is refuted by the record. Mr. Abbott avers that he spoke with “Assistant U.S.
Attorney Alexander Resar from February to May of 2023” about his extenuating circumstances.
ECF No. 23-3, at 7-8 ¶ 14. But, as the DOJ’s exhibits demonstrate, Mr. Abbott’s case was not
referred to the DOJ until March 2023, Mr. Resar did not join the DOJ until March 2023, and
Mr. Abbott was not given Mr. Resar’s contact information until late April 2023. ECF No. 28-3,
at 1-2 ¶¶ 3-7. Mr. Abbott has no response to these inconsistencies, see generally ECF No. 30, and
at summary judgment, the court need not credit statements that are “blatantly contradicted by the
record,” Scott v. Harris, 550 U.S. 372, 380 (2007).
10 In support of his argument, Mr. Abbott relies on a District of Wyoming case, United States v. Tarver, 642 F. Supp. 1109 (D. Wyo. 1986), which involved a defendant whose violation was not ongoing because he “complied when threatened with legal action,” Chaney, 2005 WL 8178308, at *2 (citing Tarver); see ECF No. 23-1, at 9; ECF No. 30, at 3. Tarver, however, is easily distinguishable from this case, as the defendant there was only “twice informed” of his obligations under the EIGA. 642 F. Supp. at 1111. Mr. Abbott, in contrast, received at least nine direct communications from Ms. Osborne, ECF No. 22-3, at 3-5 ¶¶ 9-11, 13-14, 16, 18-21, 23, on top of automated weekly reminders, id. at 4 ¶ 15, and certified letters from the Executive Director of the FLRA, id. at 4 ¶ 17, and the DOJ, ECF No. 22-4, at 1 ¶ 2.
18 History of compliance. The DOJ does not dispute Mr. Abbott’s track record of compliance
with the EIGA, see ECF No. 23-2, at 1 ¶ 1; ECF No. 28-1, at 1 ¶ 1, and instead argues that his
conduct in this litigation reflects “an extended pattern of obstinance,” ECF No. 28, at 11-12.
Mr. Abbott argues that because he complied with his annual filing obligations for more than three
decades and eventually filed his combined report, he deserves a “small fraction” of the $12,300
penalty imposed in Neelon, where the defendant had only a seven-year history of compliance and
never filed the required report that was the subject of litigation. ECF No. 23-1, at 10-11; see
Neelon, 2024 WL 2153099, at *1-3. The court credits Mr. Abbott’s record of compliance with the
EIGA but, for the reasons already noted, concludes that the fact that Mr. Abbott ultimately filed
his required report does not alone justify a de minimis penalty. Cf. Manigault Newman, 594 F.
Supp. 3d at 8-9 (imposing maximum penalty where the defendant filed her termination report two-
and-a-half months after the DOJ filed suit). Additionally, whereas the defendant in Neelon was
entirely non-responsive, resulting in a minimal expenditure of government resources to secure the
$12,300 default judgment, Mr. Abbott caused the government to expend significant resources in
pursuing this case, including copious outreach ahead of litigation, default proceedings that would
later be set aside, a failed mediation, and summary judgment briefing.
Motive to avoid reporting transactions. The DOJ contends that Mr. Abbott’s conduct
reflects “some desire to ‘avoid public reporting’” because Mr. Abbott was motivated in part by his
spouse’s reluctance to provide information about assets held in trust. ECF No. 28, at 12 (quoting
Lairy, 2020 WL 4039176, at *3). The DOJ also argues that Mr. Abbott’s failure to report until
May 2023 “evinc[es] motivation to avoid disclosure.” Id. at 13. Mr. Abbott responds that his
combined report reveals “garden-variety financial assets” and transactions that had all previously
been reported in his Annual Report for the 2020 calendar year. ECF No. 23-1, at 11. The court
19 agrees that Mr. Abbott’s conduct does not suggest “a sophisticated financial operator with a strong
motive to hide problematic transactions,” Lairy, 2020 WL 4039176, at *3; see ECF Nos. 9, 27,
27-1 (declaration and disclosure reports filed under seal), and concludes that this factor does not
warrant a significant penalty.
Financial resources. Finally, the DOJ argues that Mr. Abbott has “significant financial
resources” that warrant a higher penalty, pointing to his salary as an FLRA Member and the assets
listed in his disclosure reports. ECF No. 28, at 13-14 (quoting Manigault Newman, 594 F. Supp.
3d at 9); see ECF No. 22-1, at 18-19. Mr. Abbott counters that he has “modest resources” and that
the bulk of the assets listed in his combined report are in a trust administered by his spouse for the
benefit of his spouse and their children, not for him. ECF No. 23-1, at 12. He also notes that
“salary, alone, does not determine someone’s ability to pay a substantial fine” and requests that
the court consider his financial obligations to his children. ECF No. 30, at 6-7.
The court agrees with the DOJ that, as with the defendant in Manigault Newman,
Mr. Abbott “earned a substantial salary” in his covered role, which factored into the appropriate
penalty. 594 F. Supp. 3d at 9. While, in Manigault Newman, the DOJ sought the then-statutory
maximum penalty of $61,585, id., it is only seeking a little more than 50% of the maximum penalty
here, ECF No. 22-1, at 19 n.4. Having considered Mr. Abbott’s financial disclosure reports and
sealed declarations, ECF Nos. 9, 27, 27-1, the court concludes that Mr. Abbott’s assets, setting
aside those held in trust for family members, are sizeable and that a $40,000 penalty is “necessary
to effectuate the deterrent aims of the EIGA,” Manigault Newman, 594 F. Supp. 3d at 8-9. The
20 court will accordingly impose the $40,000 penalty sought by the DOJ, along with a late-filing fee
of $200. See 5 U.S.C. § 13106(d)(1).11
VI. CONCLUSION
For the foregoing reasons, the court will grant the United States’ Motion for Summary
Judgment, ECF No. 22, and will deny Mr. Abbott’s Cross Motion for Summary Judgment, ECF
No. 23. A contemporaneous order will issue.
LOREN L. ALIKHAN United States District Judge Date: September 15, 2025
11 In the event that Mr. Abbott is unable to pay the full penalty amount, he may seek an installment payment plan pursuant to DOJ policy. See U.S. Dep’t of Just., Just. Manual § 4-11.300 (2025), https://perma.cc/CY3R-5AKK.