UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

Case No.: 17-cv-22643 COOKE/GOODMAN

FEDERAL ELECTION COMMISSION, 

Plaintiff, 

v. 

DAVID RIVERA, 

Defendant. 

__________________________________/ 

AMENDED NOTICE OF APPEAL

Defendant, DAVID RIVERA, respectfully files this notice of appeal to the United States 

Court of Appeals for the Eleventh Circuit of the final judgment entered on March 30, 2022 and the 

Order denying Motion to Alter or Amend Judgment entered on March 31, 2023. See [DE 177] and 

[DE 191]. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 7, 2023, a copy of this document was furnished by 

electronic filing with the Clerk of the Court via CM/ECF, to:

Greg J. Mueller

FEDERAL ELECTION COMMISSION

1050 First Street, NE

Washington, DC 20463

202-694-1650

gmueller@fec.gov

Counsel for Plaintiff FEC

Kevin Deeley

FEDERAL ELECTION COMMISSION

999 E. Street NW

Washington, DC 20463

202-694-1650

kdeeley@fec.gov

Counsel for Plaintiff FEC

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Lisa J. Stevenson

FEDERAL ELECTION COMMISSION

999 E. Street NW

Washington, DC 20463

202-694-1650

lstevenson@fec.gov

Counsel for Plaintiff FEC

Harry J. Summers

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

202-694-1553

hsummers@fec.gov

Counsel for Plaintiff FEC

Shaina Ward

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

202-694-1566

sward@fec.gov

Counsel for Plaintiff FEC

Jeffrey David Feldman

Fla. Bar No. 330302

TRAILBLAZER

1200 Brickell Avenue

Penthouse 1900

Miami, FL 33131

305-222-7851

jfeldman@trailblazerlaw.com

Counsel for Defendant David Rivera

Respectfully submitted,

/s/ Thomas L. Hunker 

Thomas L. Hunker

Fla. Bar No. 38325

HUNKER APPEALS

110 SE 6th Street, Suite 2330

Fort Lauderdale, FL 33301

877-841-8808

thomas.hunker@hunkerappeals.com

jodi.kain@hunkerappeals.com

tamara.mihajlovic@hunkerappeals.com

Counsel for Defendant David Rivera

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION

CASE NO. 17-22643-CIV-CANNON/Goodman1

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

DAVID RIVERA, 

Defendant.

 / 

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT

THIS CAUSE comes before the Court upon Defendant David Rivera’s “Motion to Alter 

or Amend or for Relief from Judgment” [ECF No. 179] (the “Motion”). Plaintiff filed a response 

in opposition to the Motion [ECF No. 186], to which Defendant replied [ECF No. 189]. The Court 

has reviewed the Motion, the full record, and is otherwise fully advised. For the reasons set forth 

below, Defendant’s Motion [ECF No. 179] is DENIED.

2

BACKGROUND3

Invoking Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, Defendant seeks

vacatur of the Court’s Final Judgment and civil penalty, entered on March 30, 2022 [ECF No. 177 

p. 13]. That Final Judgment, which followed the Court’s grant of summary judgment in favor of 

1 Late United States District Judge Marcia Cooke presided over this matter from December 18, 

2017, until it was reassigned to this Court on January 30, 2023 [ECF No. 190]. 

2 Defendant failed to include a certification of conferral with opposing counsel prior to filing this 

motion [ECF No. 179], in violation of Local Rule 7.1(a)(3). 

3 This Order presumes familiarity with the factual and procedural history of this case as detailed 

in prior orders [ECF Nos. 163, 176].

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the Federal Election Commission (FEC), imposed a $456,000 civil penalty against Defendant for 

knowingly and willfully making $75,927.31 in political campaign contributions in the name of 

another, in violation of Section 30122 of the Federal Election Campaign Act (FECA)

[ECF No. 163]. 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b)(1)(i). 

At the summary judgment stage, Defendant raised no argument or objection to the 

$456,000 penalty proposed by the FEC, which represents 600% of the $75,927.31 illegal 

campaign contribution at issue [ECF No. 163 p. 34 (noting absence of any opposition by 

Defendant in summary judgment papers); see ECF No. 186 p. 3]. See 52 U.S.C. 

§ 30109(a)(6)(C) (authorizing court, in cases of “a knowing and willful violation” of Section 

30122, to impose a civil penalty “which is not less than 300 percent of the amount involved in 

the violation and is not more than the greater of $50,000 or 1,000 percent of the amount involved 

in the violation”); 11 C.F.R. § 111.24(a)(2)(ii) (reiterating 300 to 1,000 percent range based on 

“the amount of any contribution involved in the violation”).4

In support of the instant Motion, Defendant relies on the Eleventh Circuit’s decision in 

Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288 (11th Cir. Dec. 29, 2021), issued 

after summary judgment briefing and after the Court’s order granting summary judgment 

[ECF No. 163]. In Defendant’s view, Yates represents an intervening change in controlling law 

that renders the civil penalty imposed against him excessive in violation of the Excessive Fines 

Clause of the Eighth Amendment [ECF No. 179 pp. 1–2]. Accordingly, Defendant argues, the 

Court should vacate the Final Judgment and schedule an evidentiary hearing to apply “the Yates 

4 Rivera’s violation occurred in 2012 [ECF No. 163 p. 1; ECF No. 1 ¶¶ 6, 14–15, 26]. The relevant 

statutory provision in effect at that time, codified at 2 U.S.C. § 437g, provided for civil penalties 

“not less than 300 percent of the amount involved in the violation and not more than the greater of 

$50,000 or 1,000 percent of the amount involved in the violation.” 2 U.S.C. § 437g(a)(6)(C) 

(2008). The 300 to 1,000 percent range has remained in effect at all relevant times and continues 

in force as of the date of this Order. 52 U.S.C. § 30109(a)(6)(C).

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test” to the amount of the fine requested by the FEC, which he further argues is “at least partially 

punitive in nature” and imposed pursuant to an “unconstitutionally standardless” and “arbitrary” 

fine provision [ECF No. 179 pp. 4–5, 15–16]. 

The Court is not persuaded by these arguments. Reconsideration of the Final Judgment

is not warranted, nor is an evidentiary hearing necessary or justified. 

LEGAL STANDARD

Three grounds justify reconsideration of an earlier order under Rule 59(e): “(1) an 

intervening change in controlling law; (2) the availability of new evidence; and (3) the need to 

correct clear error or prevent manifest injustice.” Williams v. Cruise Ships Catering & Serv. Int’l, 

N.V., 320 F. Supp. 2d 1347, 1357–58 (S.D. Fla. 2004). A motion for reconsideration “cannot

be used to relitigate old matters, raise argument or present evidence that could have been raised

prior to the entry of judgment.” Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) 

(internal quotation marks omitted); see also Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 

F.3d 757, 763 (11th Cir. 2005); Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (“The 

purpose of a Rule 59(e) motion is not to raise an argument that was previously available, but not 

pressed.”); Reyher v. Equitable Life Assurance Soc’y, 900 F. Supp. 428, 430 (M.D. Fla. 1995). 

Rather, the motion “must demonstrate why the court should reconsider its prior decision and set 

forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” 

Id. (internal quotation marks omitted). Reconsideration of a previous order is “an extraordinary 

remedy, to be employed sparingly.” Williams, 320 F. Supp. 2d at 1358 (internal quotation marks 

omitted).

Rule 60(b) allows for reconsideration upon grounds including mistake, newly discovered 

evidence, and fraud. Fed. R. Civ P. 60(b). Rule 60(b)(6) also contains a “catch-all” provision 

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allowing reconsideration for “any other reason that justifies relief,” Fed. R. Civ. P. 60(b)(6), but 

reconsideration under that provision, like reconsideration under Rule 59(e), is considered an 

“extraordinary remedy,” Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 196). A district court 

has broad discretion in ruling upon a motion for reconsideration under Rule 60(b) and should 

balance the need for substantial justice against the sanctity of final judgments. Griffin v. Swim–

Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). 

DISCUSSION

Defendant raises for the first time in his Motion for Reconsideration an Eighth Amendment 

Excessive Fines challenge to the civil penalty imposed by U.S. District Judge Cooke in March

2022 [ECF No. 177]. Defendant waited more than a year after the Court granted Plaintiff’s 

requested penalty to raise a challenge to the civil penalty—and after a separate, unsuccessful 

post-summary judgment motion to dismiss for lack of jurisdiction [ECF Nos. 163, 171, 176]. 

There is no mention of the civil penalty in Defendant’s Motion for Summary Judgment or Reply 

in support thereof [ECF Nos. 139, 152], or in Defendant’s opposition to Plaintiff’s Motion for 

Summary Judgment [ECF No. 146]. As Judge Cooke correctly noted in the Order Granting 

Summary Judgment, “Rivera has not made any opposition to the FEC’s contentions regarding the 

Court’s issuance of a civil penalty in this case” [ECF No. 163 p. 34 n.7]. And this is despite the 

matter of a civil penalty being ripe for Judge Cooke’s consideration on summary judgment, having 

been raised by the FEC prominently in its motion and reply [ECF No. 142 pp. 8–9; ECF No. 153 

pp. 3, 9]. See Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 705 (7th Cir. 2011) (finding 

that the defendant’s argument, which invoked the Excessive Fines Clause as to a civil penalty, was 

ripe at the time the imposition of the penalty was “immediately impending,” i.e., when the

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defendant had the opportunity to respond to the plaintiff’s motion for civil penalties).5 

Although it is true that Defendant could not have made arguments on summary judgment 

specific to the Yates case [ECF No. 189 p. 6], nothing prevented Defendant from raising an 

argument on summary judgment that Plaintiff’s proposed civil penalty was too high or otherwise 

in tension with the Eighth Amendment under traditional principles. His failure to raise any 

argument at all regarding the civil penalty provides sufficient basis for denying him the opportunity 

to bring an Eighth Amendment challenge for the first time now. See Am. Home Assurance Co., 

763 F.2d 1237, 1239 (11th Cir. 1985) (affirming district court’s exercise of broad discretion to 

refuse to amend a prior summary judgment order, where plaintiff raised for the first time on a 

motion for reconsideration a choice of law argument); id. (“There is a significant difference 

between pointing out errors in a court’s decision on grounds that have already been urged before 

the court and raising altogether new arguments on a motion to amend; if accepted, the latter 

essentially affords a litigant ‘two bites at the apple.’”).

6

Even if Defendant were not barred from challenging the proper amount of the civil penalty

at this late juncture, the Eleventh Circuit’s decision in Yates does not warrant reconsideration of 

the civil penalty imposed in this case. In Yates, the Eleventh Circuit held that “the damages and 

5 Judge Cooke’s Order on Plaintiff’s Motion for Summary Judgment noted that Defendant’s 

opposition to Plaintiff’s motion for summary judgment was “silent” on the issue of the civil penalty 

[see ECF No. 163 p. 34]. Rivera “fail[ed] to address this issue in his own summary judgment 

motion . . . . Nor [did] he address it in his reply brief submitted in support of his summary judgment 

motion” [ECF No. 163 p. 34 n.7 (citations omitted)]. Rivera claims in his reply brief now that he 

“opposed the imposition of a fine at summary judgment” [ECF No. 189 p. 6]. But, as noted, there 

is no mention in his filings about the imposition of a fine or the FEC’s proposed amount for the 

fine. If by “opposing the imposition of a fine” Rivera means that he opposed the grant of summary 

judgment generally, that is clearly insufficient to raise the substance of the penalty as grossly 

disproportionate or otherwise. 

6 See also Schwarz v. Bd. of Supervisors on behalf of Vills. Cmty. Dev. Dists., 672 F. App’x 981, 

983 (11th Cir. 2017); Katzoff v. NCL (Bah.) Ltd., No. 19-22754-CIV, 2022 WL 820362, at *2 

(S.D. Fla. Jan. 24, 2022). 

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statutory penalties awarded in a non-intervened FCA [False Claims Act] qui tam action are subject 

to the Eighth Amendment’s prohibition on excessive fines.” 21 F.4th at 1307. The Eleventh 

Circuit then proceeded to conduct a traditional Excessive Fines Clause analysis to the FCA

monetary award imposed in that case, doing so guided by the “non-exhaustive factors” cited in 

prior Eleventh Circuit and Supreme Court authority dating back to 1998. 21 F.4th at 1314.

7

 The 

Yates decision, therefore, while deciding a matter of first impression as relates to the applicability 

of the Excessive Fines Clause to non-intervened qui tam suits under the FCA, ultimately applied 

traditional factors rooted in well-settled caselaw to determine the non-excessiveness of the 

imposed fine. Indeed, long before Defendant’s opposition to Plaintiff’s motion for summary 

judgment, the Eleventh Circuit and the Supreme Court had applied those non-exhaustive factors 

to civil penalties that were punitive in nature, as well as to criminal penalties.8 Against this 

backdrop, Defendant’s attempt to frame Yates as effecting a fundamental change related to the 

Excessive Fines Clause as relates to civil penalties fails; those guiding factors existed well before 

Yates, and nothing prevented Defendant from relying on those principles to challenge the FEC’s 

proposed penalty as partially punitive and/or excessive under the Eighth Amendment. 

7 (“[W]we have identified several, non-exhaustive factors that guide an Excessive Fines Clause 

analysis: (i) whether the defendant is in the class of persons at whom the statute was principally 

directed; (ii) how the imposed penalties compare to other penalties authorized by the legislature; 

and (iii) the harm caused by the defendant. See United States v. Chaplin’s, Inc., 646 F.3d 846, 851 

(11th Cir. 2011). See also United States v. Bajakajian, 524 U.S. 321, 338–40 (1998) (considering, 

among other things, the three factors we identified in Chaplin’s); United States v. Mackby, 339 

F.3d 1013, 1017–18 (9th Cir. 2003) (same)). 

8 See, e.g., Austin v. United States, 509 U.S. 602 (1993) (applying the Excessive Fines Clause in 

civil in rem forfeiture proceedings); United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 

175 F.3d 1304, 1309 (11th Cir. 1999) (applying Bajakajian factors in a civil in rem forfeiture 

context); Chaplin’s, Inc., 646 F.3d at 851 (applying Bajakajian factors in a criminal forfeiture 

context); Mackby, 339 F.3d at 1017–18 (applying Bajakajian factors to a civil penalty issued under 

the False Claims Act). 

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Nor does the record show any manifest injustice or clear error in imposition of the $456,000 

civil penalty. Judge Cooke exercised her discretion to determine an appropriate civil remedy in 

this case considering the factors set forth in Federal Election Commission v. Furgatch, 

869 F.2d 1256 (9th Cir. 1989)—factors considered by multiple courts in weighing civil penalties 

under the FECA. Id. at 1258 (identifying various factors to consider in imposing a civil penalty 

under the FECA, including “(1) the good or bad faith of the defendants; (2) the injury to the public; 

(3) the defendant’s ability to pay; and (4) the necessity of vindicating the authority of the 

responsible federal agency”); Fed. Election Comm’n v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 

97 (D.D.C. 2014), aff’d, 816 F.3d 829 (D.C. Cir. 2016); Fed. Election Comm’n v. Kalogianis, 

No. 806CV68T23EAJ, 2007 WL 4247795, at *6 (M.D. Fla. Nov. 30, 2007). Defendant’s Motion 

establishes no clear error in Judge Cooke’s analysis. And, even if there were a basis now to 

conduct a belated Excessive Fines Clause inquiry, Defendant still has not shown manifest injustice 

in the civil penalty imposed, for the reasons stated in the FEC’s opposition [ECF No. 186 

pp. 13–18]. The $456,000 penalty, which represents roughly 600% of the amount of the violation, 

falls roughly mid-way between the 300-to-1,000 percent range provided in the penalty provision 

and adequately reflects Defendant’s conduct and the harm to the public as explained in the Order 

Granting Summary Judgment [ECF No. 163 pp. 34–38]. Finally, Defendant raises a belated 

vagueness challenge to 52 U.S.C. § 30109(a)(6)(C), which he describes as a “standardless” penalty 

provision, citing Judge Tjoflat’s concurrence/dissent in Yates [ECF No. 179 p. 15 (citing Yates, 21 

F.4th at 1325 (Tjoflat, J., concurring in part and dissenting in part)]. But the Yates majority did 

not reach the issue of FCA’s purportedly “standardless” penalty scheme, and Judge Cooke’s order 

relies on the statutory range provided by Congress and the Furgatch discretionary factors

applicable to FECA penalties. 869 F.2d at 1258. 

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CONCLUSION

For the foregoing reasons, the Court rejects Defendant’s contention that reconsideration 

of the Final Judgment is warranted under Rules 59(e) or 60(b) of the Federal Rules of Civil 

Procedure. Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. Defendant’s Motion to Alter or Amend or for Relief from Judgment [ECF No. 179] 

is DENIED. 

2. The Clerk is directed to forward a copy of this Order to the Eleventh Circuit in 

reference to 11th Circuit Appeal Number 22-11437, which is stayed pending 

disposition of the instant Motion. 

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 31st day of March 

2023. 

 

 AILEEN M. CANNON

UNITED STATES DISTRICT JUDGE

cc: counsel of record 

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