Case No. 17-1179

IN THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 

ROBERT C. MCCHESNEY, in his official capacity as Treasurer of Bart McLeay 

for U.S. Senate, Inc.; and BART MCLEAY FOR U.S. SENATE INC., 

Plaintiffs-Appellants, 

 

v. 

CAROLINE C. HUNTER, in her official capacity as Chair of the Federal Election 

Commission,

Defendants-Appellees. 

PETITION FOR PANEL REHEARING 

Prepared and Submitted by 

Bartholomew L. McLeay 

KUTAK ROCK LLP 

The Omaha Building 

1650 Farnam Street 

Omaha, NE 68102-2186 

Phone: (402) 346-6000 

bart.mcleay@kutakrock.com 

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ............................................................................................................. 1 

II. STATEMENT OF FACTS ................................................................................................ 4 

A. Background ............................................................................................................ 4 

B. Commission Did Not Merely Substitute Date ....................................................... 4 

C. 2014 Amendment - Final Rule ............................................................................... 5 

D. Appeal of Commission Action............................................................................... 5 

1. Administrative Review in District Court ................................................... 5 

2. McChesney’s Opening Brief and Commission’s Response ...................... 6 

a. Opening Brief................................................................................. 6 

b. Commission Brief .......................................................................... 7 

III. ARGUMENT ..................................................................................................................... 8 

A. McChesney Made Argument in Opening Brief and Commission Delivered 

Opposition Brief “Devoted” to the Issue ............................................................... 8 

B. The District Court Erred in Failing To Give McChesney All Reasonable 

Doubt in the Complaint That the Commission Failed To Provide Proper 

Notice and Opportunity To Comment on the 2014 Final Rule ............................ 11 

IV. CONCLUSION ................................................................................................................ 15 

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TABLE OF AUTHORITIES 

Page 

FEDERAL CASES 

Allina Health Servs. v. Sebelius, 

746 F.3d 1102 (D.C. Cir. 2014) ...............................................................................................12 

Anderson v. U.S. Dep’t of Labor, 

422 F.3d 1155 (10th Cir. 2005) .................................................................................................9 

Barham v. Reliance Standard Life Ins. Co., 

441 F.3d 581 (8th Cir. 2006) .....................................................................................................9 

Clean Air Council v. Pruitt, 

862 F.3d 1 (D.C. Cir. 2017) .....................................................................................................13 

Fed. Election Comm’n v. Swallow, 

304 F. Supp. 3d 1113 (D. Utah 2018) ......................................................................................13 

Florilli Corp. v. Pena, 

118 F.3d 1212 (8th Cir. 1997) .................................................................................................15 

Heartland Reg’l Med. Ctr. V. Sebelius, 

566 F.3d 193 (D.C. Cir. 2009) .................................................................................................12 

Iowa League of Cities v. EPA, 

711 F.3d 844 (8th Cir. 2013) ..................................................................................... 3, 8, 11-12 

Levesque v. Block, 

723 F.2d 175 (1st Cir. 1983) ....................................................................................................13 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .................................................................................................................11 

Missouri Hospital Ass’n v. Hargan, 

No. 2:17-cv-04052-BCW, 2018 WL 814589, at *9 (W.D. Mo. Feb. 9, 2018) ........................12 

Nat’l Res. Defense Council v. Nat’l Highway Traffic Safety Admin., 

894 F.3d 95 (2d Cir. 2018).......................................................................................................12 

Nat’l Venture Capital Ass’n, v. Duke, 

291 F. Supp. 3d 5 (D.D.C. 2017) .............................................................................................13 

Obduskey v. Wells Fargo, 

879 F.3d 1216 (10th Cir. 2018) .................................................................................................9 

Prof’ls & Patients for Customized Care v. Shalala, 

56 F.3d 592 (5th Cir. 1995) .....................................................................................................12 

Sugar Cane Growers Co-op. of Fla. v. Veneman, 

289 F.3d 89 (D.C. Cir. 2002) ...................................................................................................11 

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ii 

Union Pac. R. R. Co. v. U.S. Dep’t of Homeland Sec., 

738 F.3d 885 (8th Cir. 2013) ...................................................................................................15 

United States Steel Corp. v. United States Envtl. Prot. Agency, 

595 F.2d 207 (5th Cir. 1979) .....................................................................................................6 

United States v. Brewer, 

766 F.3d 884 (8th Cir. 2014) ...................................................................................................12 

United States v. Head, 

340 F.3d 628 (8th Cir. 2003) ........................................................................................... 2, 9-10 

Wash. All. Of Tech. Workers v. U.S. Dep’t of Homeland Sec., 

202 F. Supp. 3d 20 (D.D.C. 2016) aff’d 857 F.3d 907 (D.D.C. 2017) ....................................13 

FEDERAL STATUTES 

5 U.S.C. § 553(b)(A)......................................................................................................................13 

5 U.S.C. § 706(2)(D)......................................................................................................................12 

52 U.S.C. § 30109(a)(4)(C)(iii) .....................................................................................................15 

52 U.S.C. § 30109(a)(4)(C)(v) .........................................................................................................5 

OTHER AUTHORITIES 

11 C.F.R. § 111.30 ........................................................................................................... 3, 5, 14-15 

79 Fed. Reg. 3302, 3302-03 (Jan. 21, 2014) ....................................................................................5 

8th Circuit Rule 28A(h) .................................................................................................................17 

Fed. R. App. P. 30(a)(3) ...................................................................................................................6 

Fed. R. App. P. 32(a) .....................................................................................................................17 

Fed. R. App. P. 32(a)(5) .................................................................................................................17 

Fed. R. App. P. 32(a)(6) .................................................................................................................17 

Fed. R. App. P. 35(b)(2)(A) ...........................................................................................................17 

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I. INTRODUCTION1

McChesney accepts the panel’s decision on the merits for purposes of his 

petition for panel rehearing (Op. 1-11). McChesney seeks rehearing only to 

respectfully ask the panel to address the important and interrelated, but not yet 

decided, issue of whether the district court erred in excusing the Commission from 

adhering to notice-and-comment procedures for the 2014 final rule, in light of the 

significant impact on a sunset provision in the applicable statute (Op. at 11 n.3). 

The Commission admits the notice-and-comment question is inextricably 

tied and bound with the issue of establishing the penalty schedule in this 

appeal. McChesney presented substantial argument in his Opening Brief relating to 

the Commission’s misuse of notice-and-comment procedures to avoid the sunset 

provision in the law, and the Commission provided a full response, acknowledging 

there is no “distinction” between the issues raised by McChesney as shown by the 

arguments made in the district court (Commission Brief at 44-45). 

The Commission’s exhaustive, multi-page argument concludes by claiming 

the district court did not err in finding the penalty assessment on McChesney to be 

valid on the basis that notice-and-comment procedures for establishing the penalty 

schedule were “unnecessary” for this type of “routine” matter that is 

“inconsequential . . . to the public’” (Commission Brief at 37-40). Significantly, 

 

1

 “Op.” is the panel opinion. “Opening Brief” and “Reply Brief” are appellants’ 

briefs; “Commission Brief” is appellees’ brief. Defined terms are as used therein. 

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the “Statement of Issues” in McChesney’s Opening Brief includes: “Whether the 

district court erred in ruling the assessment . . . was invalid ... on the ground the 

Commission’s [penalty] establishment . . . is a routine matter in which the public 

could not reasonably be expected to have an interest . . . .” (Opening Brief at 2). 

The panel is not limited to considering only the “meaningful argument” 

principle that the Commission argued to this Court (Commission Brief at 43). 

Because this appeal involves an issue of public importance and the government 

expended multiple pages of argument in opposition, the question of whether the 

panel should consider the argument is more appropriately guided by the “devoted” 

brief rule stated in United States v. Head, 340 F.3d 628, 630 n.4 (8th Cir. 2003). 

The panel should rule on the notice-and-comment procedures in this appeal 

for even more imperative reasons, including preventing the panel opinion from 

becoming diminished by the 2014 final rule. Stated another way, the panel made 

clear, over McChesney’s objection, the Commission must be given wide latitude in 

selecting the method for voting on a penalty schedule, whether by ballot, email or 

notation (Op. at 10-11). The 2014 final rule, however, goes much farther than 

providing flexibility in voting procedure; it creates an automatic reauthorization 

mechanism that eliminates the Commission’s need to ever vote again. 

The panel opinion shows the panel seeks to balance competing interests, 

namely, efficiency in agency voting procedure with agency accountability to the 

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public, the latter through requiring some form of voting by the Commission. The 

2014 final rule extirpates any such objective made by the panel. 

Even if the final rule is deemed wise or desirable, the public should have 

been given notice and an opportunity to consider the new regulatory protocol. The 

Commission had no need to hurry. As this panel signaled in its opinion, the 

Commission easily could have inserted a simple date, i.e.; “December 31, 2018,” 

in Section 111.30, exactly as Congress had done in the corresponding statute, and 

taken as much as five years to receive public comment (Op. at 7, 9). It did not. 

The 2014 final rule was made in direct violation of established notice-andcomment procedures in an effort to eviscerate the sunset provision in the law. It 

should be vacated under this Court’s authority in Iowa League of Cities v. EPA, 

711 F.3d 844 (8th Cir. 2013), a decision cited by McChesney in both his Opening 

Brief and Reply Brief (Opening Brief at 24 n.4) (Reply Brief at 21). Iowa League 

also is clear McChesney is not required to show prejudice. 

McChesney does not seek by this petition to change the views expressed by 

the panel, only to expand upon them, to address an important, final issue in this 

appeal. Even beyond McChesney, this appeal presents an opportunity for the panel 

to provide needed guidance to federal agencies regarding proper rule-making 

procedure, especially when sunset provisions created by Congress are involved. 

McChesney respectfully requests the panel grant his petition for panel rehearing. 

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II. STATEMENT OF FACTS 

A. Background 

“The Commission promulgated the penalty schedule and regulations . . . in 

May 2000 . . . . In keeping with a [congressional] sunset provision . . . , the 

Commission set the program to end on December 31, 2001. . . . Congress amended 

the sunset provision several times, including most recently in December 2013” 

(Op. at 3). 

“At that time, Congress extended authority . . . to include violations through 

December 31, 2018” (Op. at 3). “As it did for each previous extension, the 

Commission updated its regulations to correspond to the new expiration date” (Op. 

at 3) (emphasis added); see also Op. at 9 (noting Commission “updating the 

expiration date . . . to match Congress’s 2013 amendment”) (emphasis added). 

B. Commission Did Not Merely Substitute Date 

This panel recognized Congress in the “2013 amendment of the sunset 

provision merely substituted ‘December 31, 2018’ for ‘December 31, 

2013,’ . . . [which] allowed the Commission to continue the regulations” (Op. at 7) 

(emphasis added). The panel found even an “email . . . vote” is permissible for the 

Commission to reestablish a schedule of penalties after a sunset provision in the 

law (Op. at 10-11). 

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C. 2014 Amendment - Final Rule 

The 2014 final rule creates an automatic reauthorization mechanism that will 

continue the existing penalty schedule indefinitely without the need for the 

Commission to vote, despite the sunset provision in the law (79 Fed. Reg. at 3302) 

(cited Op. at 3). This substantial change was accomplished by inserting only a few 

words in the 2014 amendment. Section 111.30, as amended, reads: “Subpart B 

applies to violations . . . by . . . treasurers that relate to the reporting 

periods . . . that end on or before the date specified by 52 U.S.C. 

§ 30109(a)(4)(C)(v).” (11 C.F.R. § 111.30) (cited Op. at 3).2 

The Commission admits the change was intended to “obviate” the need to 

ever vote again on the penalty schedule after a sunset provision in the law expires 

and thus declared “notice and comment are unnecessary” (79 Fed. Reg. 3302, 

3302-03) (cited Op. at 3). 

D. Appeal of Commission Action 

1. Administrative Review in District Court 

McChesney alleges two closely related violations in his complaint: 

“Congress’ directive to establish the penalties schedule . . . is not a routine 

matter . . . [and] the Commission . . . secretly adopted a new rule . . . .” (App’x. at 

3-4 ¶¶ 9-10). McChesney specifically links his objection to the Commission’s 

 

2 See “Extension of Administrative Fines Program, 79 Fed. Reg. 3302, 3302-03 

(Jan. 21, 2014) (codified at 11 C.F.R. § 111.30)”) (Op. at 3). 

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“adoption of a new rule . . . without giving proper notice and an opportunity for 

public comment” with the sunset provision in the law: “On January 21, 

2014, . . . [the] unauthorized final rule. . . . [was] made to avoid the mandatory 

sunset provision Congress created for the Commission to reevaluate the penalties 

schedule” (D. Ct. No. 27 at 14) (Fed. R. App. P. 30(a)(3)). 

2. McChesney’s Opening Brief and Commission’s Response 

a. Opening Brief 

 The Opening Brief expresses arguments the “district court is mistaken” and 

the “decisional law upon which the district court relies does not support its 

conclusion” to dismiss the complaint, including “on the ground the Commission’s 

action was excused due to its publishing of the 2014 schedule of penalties (2014 

Regulatory Extension), even without notice or opportunity for the public to 

comment” (Opening Brief at 14) (emphasis added). Like the complaint, the 

Opening Brief repeats the 2014 final rule was made “to avoid the mandatory sunset 

provision Congress created for the Commission” (Opening Brief at 7-8). 

McChesney also argues in the Opening Brief “the mere existence of 

deadlines for agency action . . . does not in itself constitute good cause. . . . [and] 

the agency must still show the impracticability of affording notice and comment.” 

(quoting United States Steel Corp. v. United States Envtl. Prot. Agency, 595 F.2d 

207, 213 (5th Cir. 1979)) (Opening Brief at 34 n.7) (citations omitted). 

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b. Commission Brief 

The Commission Brief includes a comprehensive response to McChesney’s 

argument in the Opening Brief on notice-and-comment procedures, as shown by 

the Table of Contents alone: 

2. The FEC Had Good Cause to Exempt the 2014 Extension of 

Administrative Fines Regulations from the APA’s 

Pre-Adoption Notice and Comment Requirement 

a. Pre-Adoption Notice and Comment Were Unnecessary 

b. Pre-Adoption Notice and Comment Would Have Been 

Contrary to the Public Interest 

(Commission Brief at ii) (emphasis added). 

The Commission’s Brief further includes detailed argument about why the 

Commission should be excused for failing to give notice and comment regarding 

the 2014 final rule (see Commission Brief at 11, 18, 21, 36 and 37-43; see, e.g., 

Commission Brief at 11) (“The Commission had determined that ‘notice and 

comment [we]re unnecessary’ . . . .”). 

 The Commission Brief merges the Commission’s notice-and-comment 

argument with the question of whether the Commission’s action in establishing the 

penalties schedule was “routine,” “unnecessary” or otherwise “inconsequential” to 

the public (Commission Brief at 39) (“Pre-adoption notice and public comment are 

likewise ‘unnecessary’ for ‘a routine determination’ that is ‘insignificant in nature 

and impact, and inconsequential . . . to the public’”) (Commission Brief at 40) 

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(“utilizing pre-adoption notice and comment procedures . . . would have been 

contrary to the public interest”).3 

 In answering the Commission’s extensive argument about the failure to 

comply with notice-and-comment procedures, McChesney, citing Iowa League, 

supplemented his earlier argument from the Opening Brief, stating: 

This Court has explained the basis for notice and comment 

procedures. ‘“An agency potentially can avoid judicial review through 

the tyranny of small decisions. Notice and comment procedures secure 

the values of government transparency and public participation, 

compelling us to agree with the suggestion that “[t]he APA’s notice 

and comment exemptions must be narrowly construed.’ [Iowa League 

at 873(citation omitted)] . . . . 

The Commission failed to give proper notice of the unauthorized final 

rule, not to mention establishment of the 2014 schedule of penalties. 

The district court’s ruling on this ground also should be reversed. 

(Reply Brief at 21); see also Reply Brief at 24 (“It is undisputed the result of the 

Commission’s action was to avoid having to conduct a public vote on the schedule 

of penalties ever again”) (emphasis added). 

III. ARGUMENT 

A. McChesney Made Argument in Opening Brief and Commission 

Delivered Opposition Brief “Devoted” to the Issue 

This Court recognizes an exception to the meaningful argument principle 

when an appellee has “devoted” multiple pages of its opposition brief to an issue, 

 

3 Even the Commission admits the McChesney Opening Brief “respond[ed] to the 

findings of good cause . . . [citing] a . . . decision explaining that ‘the mere 

existence of deadlines for agency action . . . does not in itself constitute good 

cause”’ (Appellants’ Br. at 34 n.7 (citation omitted) (emphasis in original). 

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particularly in the context of a government response to an issue of public interest. 

United States v. Head, 340 F.3d 628, 630 n.4 (8th Cir. 2003). In Head, this Court 

explained the reason behind the meaningful argument rule is “out of concern that 

the opposing party would be prejudiced by an advocate arguing an issue without an 

opportunity for the opponent to respond,” concluding: “That is not the case here, 

where the government devoted four pages of its brief to [the argument].” Id. 

Likewise, this Court recognizes it is “not precluded from” considering an 

argument raised in a reply brief that “supplements an argument raised in a party’s 

initial brief.” Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th 

Cir. 2006). Other courts of appeals have stated the same. See Obduskey v. Wells 

Fargo, 879 F.3d 1216, 1220 (10th Cir. 2018) (“McCarthy also 

claimed . . . Obduskey had waived the FDCPA claim . . . by failing to raise it in the 

opening brief. We disagree.”); Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 

1175 (10th Cir. 2005) (issue arising from administrative appeal was “adequately 

briefed” by government and the court had “the benefit of both parties’ position on 

the issue,” even though appellant had failed “to present any argument” in the 

opening brief). 

The panel has the benefit of the Commission’s in-depth analysis and specific 

views about the notice-and-comment procedures at issue in this appeal. The 

Commission determined McChesney’s arguments relating to establishing the 

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penalty schedule and notice-and-comment procedures were so intertwined in the 

district court there is no “distinction” between them (App. at 44-45). The 

Commission’s detailed, multi-page argument made under several subheadings in 

the Commission Brief is the result of its own determination a fulsome response 

was required (App. at 37-43). 

McChesney’s argument on notice-and-comment procedures in his Reply 

Brief closely supplements his argument in the Opening Brief that the 2014 final 

rule was made “to avoid the mandatory sunset provision Congress created for the 

Commission” to act (Opening Brief at 6-7). 

Despite the Commission’s thorough response in the Commission Brief, and 

later advocacy about notice-and-comment procedure during oral argument,4 the 

Commission argued McChesney did not make a “meaningful challenge” on this 

subject (Commission Brief at 43). McChesney asks the panel to reconsider its 

acceptance of the Commission’s argument on this point and, applying Head and 

other authorities, address the significant notice-and-comment procedures question 

in this appeal (Opening Brief at 10). 

 

4 http://media-oa.ca8.uscourts.gov/OAaudio/2018/5/171179.MP3, at 16:35.

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B. The District Court Erred in Failing To Give McChesney All Reasonable 

Doubt in the Complaint That the Commission Failed To Provide Proper 

Notice and Opportunity To Comment on the 2014 Final Rule 

In both his Opening Brief and Reply Brief, McChesney cited this Court’s 

decision in Iowa League, which remains the dispositive authority on notice-andcomment procedure for this appeal. 

In Iowa League, a group of cities sought review of two “letters” sent by the 

EPA to a U.S. Senator. The EPA did not comply with notice-and-comment 

procedures, arguing the letters “should be considered general policy statements or, 

at most, interpretative rules” because they are “not binding,” are “[c]onsummation 

of nothing” and are always “subject to change.” 711 F.3d, 855, 864, 865. 

This Court determined in Iowa League the letters constituted a “legislative 

rule[]” because they were expected to be “independently legally enforced.” Id. at 

874. This Court also found: “[w]here a challenger is the subject of agency action, 

‘there is ordinarily little question that the action . . . has caused him 

injury,’ . . . particularly . . . individuals asserting violations of procedural rights.” 

Id. at 871 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). 

Relying on decisional law from the United States Court of Appeals for the 

District of Columbia, this Court, in Iowa League, explained a challenger is not

required to demonstrate prejudice by showing “the agency would alter its rules 

upon following the proper procedures.” Id. (quoting Sugar Cane Growers Co-op. 

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of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002) (“If a party claiming the 

deprivation of a right to notice-and-comment rulemaking under the APA had to 

show that its comment would have altered the agency’s rule, section 553 would be 

a dead letter”). After noting the APA’s notice and comment exemptions are to be 

narrowly construed, id at 873 (quoting Prof’ls & Patients for Customized Care v. 

Shalala, 56 F.3d 592, 596 (5th Cir. 1995)), this Court held: “Because the 

September 2011 letter had the effect of announcing a legislative rule . . . , the EPA 

violated the APA’s procedural requirements by not using notice and comment 

procedures. We . . . vacate this new rule because it is “without observance of 

procedure required by law.” 5 U.S.C. § 706(2)(D).” Id. at 876 (emphasis added); 

see also Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014) 

(“[D]eficient notice is a ‘fundamental flaw’ that almost always requires a vacatur”) 

(quoting Heartland Reg’l Med. Ctr. V. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 

2009)).5 

An agency cannot manufacture urgency to avoid notice-and-comment 

procedures. United States v. Brewer, 766 F.3d 884, 890 (8th Cir. 2014) (“stated 

 

5

 Two decisions after briefs filed in this appeal are instructive. Missouri Hospital 

Ass’n v. Hargan, No. 2:17-cv-04052-BCW, 2018 WL 814589, at *9 (W.D. Mo. 

Feb. 9, 2018) (applying Iowa League, noting, while agency rule “matches” that 

“set forth by statute,” agency violated notice-and-comment procedure as to FAQs); 

Nat’l Res. Defense Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95 

(2d Cir. 2018) (agency delay on “Civil Penalty Rule” requires notice-andcomment).

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concern for public safety . . . is undermined by . . . [agency’s] own seven-month 

delay”). “It is well-established that good cause ‘cannot arise as a result of the 

agency’s own delay.’” Nat’l Venture Capital Ass’n, v. Duke, 291 F. Supp. 3d 5, 16 

(D.D.C. 2017) (quoting Wash. All. Of Tech. Workers v. U.S. Dep’t of Homeland 

Sec., 202 F. Supp. 3d 20, 26 (D.D.C. 2016) aff’d 857 F.3d 907 (D.D.C. 2017)).6 

The Commission recognizes the 2014 final rule is a legislative rule. The 

Commission has never cited 5 U.S.C. § 553(b)(A) or claimed the 2014 final rule to 

be a procedural rule (see Commission Brief at vii; 37-40). The Commission’s 

position is not surprising since it seeks to legally enforce the 2014 final rule and 

automatically extend the penalty schedule ad continuim, which is tantamount to 

amending or revoking a prior rule. Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C. 

Cir. 2017) (“[Agency’s] stay . . . is essentially an order delaying the rule’s effective 

date, and . . . such orders are tantamount to amending or revoking a rule”); 

Levesque v. Block, 723 F.2d 175, 187 (1st Cir. 1983) (“[A]lthough 

ordinarily . . . an effective date . . . in a statute makes the statute self-executing, 

that interpretation would be unreasonable [here]”).

 

6

 This point is similar to that raised by the concurring judge in this appeal during 

argument. Fed. Election Comm’n v. Swallow, 304 F. Supp. 3d 1113, 1117, 1118 

(D. Utah 2018) (“[T]he Commission claims [its regulation] should be recognized 

as proper because the Commission has ‘consistently and repeatedly enforced’ 

[it] . . . . What is troubling is that the Agency can so easily exercise such improper 

authority[.]”). 

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As signaled by this panel’s opinion, the Commission easily could have 

“matched” the action taken by Congress, replacing the expiration date of 

“December 31, 2013,” in Section 111.30, with the new expiration date of 

“December 31, 2018,” and its response would have been deemed “routine” by this 

panel (See Op. at 9) (updating expiration date to “match” Congress). The 

Commission failed to take this important and necessary step. 

This panel determined, and it is now the law of the case, the Commission 

was authorized by the 2014 amendment (the final rule in Section 111.30) to extend 

the schedule of penalties without a public meeting or discussion, and accomplish it 

even by email vote (Op. at 10-11). But the panel never conveyed the opinion the 

Commission was authorized to accomplish the action with no vote at all. 

The 2014 final rule creates a new paradigm that automatically reauthorizes 

the schedule of penalties without any Commission review, involvement or other 

action. It eliminates all Commission decision-making about whether to maintain 

the existing penalty schedule after a legislative sunset period. 

The final rule may be wise or desirable, but the public should have been 

given notice and an opportunity to weigh in. The Commission had no need to be in 

a hurry. It could have inserted the date of “December 31, 2018,” in Section 111.30, 

and taken five years to consider comments from the public about the new 2014 

final rule it sought to implement. 

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The Commission was empowered to use the schedule of penalties to assess 

McChesney only if the 2014 final rule was validly authorized by law. It was not. 

The Commission failed to give proper notice and opportunity for public comment 

regarding the 2014 amendment to Section 111.30, as required by law. It should be 

vacated. See Union Pac. R. R. Co. v. U.S. Dep’t of Homeland Sec., 738 F.3d 885, 

900 (8th Cir. 2013) (“Because the penalties are ‘unlawful,’ they must be “set 

aside”); Florilli Corp. v. Pena, 118 F.3d 1212, 1214 (8th Cir. 1997) (“agency 

provided no forum for the party to participate in the proceedings through which the 

agency created the contested provisions’”).7 

IV. CONCLUSION 

McChesney does not seek to change the reasoning in the panel opinion, only 

to expand it to address an important final issue. McChesney respectfully requests 

the panel grant his petition for rehearing, reverse the order of the district court 

granting the Commission’s motion to dismiss his complaint and remand this action 

to the district court for further proceedings consistent with this Court’s opinion. 

 

7

 Vacation of the 2014 final rule should not create litigation. The Commission can 

easily fix the flaw in Section 111.30 by email vote inserting “December 31, 2018” 

(Op. at 10-11). Any person seeking relief now would have had to file a petition 

within thirty days of any adverse determination (52 U.S.C. § 30109(a)(4)(C)(iii)). 

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Respectfully submitted this 27th day of September, 2018. 

By: /s/ Bartholomew L. McLeay 

Bartholomew L. McLeay 

KUTAK ROCK LLP 

The Omaha Building 

1650 Farnam Street 

Omaha, NE 68102-2186 

Phone: (402) 346-6000 

bart.mcleay@kutakrock.com

FOR APPELLANTS 

 

Appellate Case: 17-1179 Page: 20 Date Filed: 09/27/2018 Entry ID: 4709749 
17 

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 

Certificate of Compliance With Type-Volume Limitation, 

Typeface Requirements, and Type Style Requirements 

This petition complies with the type-volume limitation of Fed. R. App. P. 

35(b)(2)(A) because this petition contains 3,594 words. 

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft 

Office Word 2013 in Time New Roman type style, font size 14. 

This brief complies with the formatting requirements of 8th Circuit 

Rule 28A(h) because the electronic version of the brief is in PDF format, and was 

generated by printing to Adobe PDF from the original word processing file. 

/s/Bartholomew L. McLeay 

Bartholomew L. McLeay 

Appellate Case: 17-1179 Page: 21 Date Filed: 09/27/2018 Entry ID: 4709749 
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CERTIFICATE OF SERVICE 

I hereby certify that on September 27, 2018, I electronically filed the 

foregoing with the Clerk of the Court for the United States Court of Appeals for 

the Eighth Circuit by using the CM/ECF system. I certify that all participants in 

the case are registered CM/ECF users and that service will be accomplished by 

the CM/ECF system. 

/s/Bartholomew L. McLeay 

Bartholomew L. McLeay 

Appellate Case: 17-1179 Page: 22 Date Filed: 09/27/2018 Entry ID: 4709749