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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 17-CV-22643 COOKE/GOODMAN 

FEDERAL ELECTION COMMISSION, 

 Plaintiff, 

vs. 

DAVID RIVERA, 

 Defendant. 

DEFENDANT’S REPLY TO THE FEDERAL ELECTION COMMISSION’S 

OPPOSITION TO DEFENDANT’S MOTION TO DISMISS 

David Rivera (“Rivera”) replies to the Federal Election Commission’s Opposition to his 

Motion to Dismiss for Lack of Subject Matter Jurisdiction (“Motion to Dismiss”) and states: 

The Federal Election Commission (“FEC”) urges this Court to deny Rivera’s Motion to 

Dismiss for the following reasons: 

1. Rivera did not comply with this Court’s “meet and confer” local rule; 

2. That the applicable statute of limitations, 28 U.S.C. § 2462 is non-jurisdictional; 

3. The FEC’s single cause of action was timely filed under the “repeated wrong” doctrine 

and thus was within the statute of limitations; and 

4. The FEC complied with its pre-suit notice and conciliation requirements as to both its 

original and amended complaints. 

The FEC is incorrect on all accounts. 

A. This Court’s “Meet and Confer” Obligation Does Not Apply to Motions for 

Involuntary Dismissal of a Claim. 

 The FEC asserts at footnote 1 of its brief that the Court should deny Rivera’s Motion 

because the undersigned did not file a “meet and confer” certificate of compliance under Local 

Rule 7.1(a)(3). While the FEC is correct that the undersigned did not meet and confer prior to 

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filing Rivera’s motion, motions for involuntary dismissal of an action are exempt from this Court’s 

“meet and confer” requirement. Accordingly, no violation of Local Rule 7.1(a)(3) occurred. 

B. 28 U.S.C. § 2462 is Jurisdictional. 

 At footnote 3 of its brief, the FEC cites United States v. Hines, 2017 WL 6536574, at *2 

(M.D. Fla. Dec. 21, 2017) for the proposition that 28 U.S.C. § 2462 is non-jurisdictional. Hines 

was decided in view of U.S. v. Wong, 575 U.S. 402, 409 (2015). Wong held that absent a clear 

statement from Congress that a statute of limitations is intended to be jurisdictional, it should be 

treated as non-jurisdictional. Id. at 409. 

 Importantly, 28 U.S.C. § 2462 states that a claim filed in violation of its terms “shall not 

be entertained . . .” Id. (emphasis added). The phrase “shall not be entertained” is a clear statement 

by Congress that 28 U.S.C. § 2462 is jurisdictional. Judge King ruled as such in S.E.C. v. Graham, 

21 F. Supp. 3d 1300, 1308 (S.D. Fla. 2014), aff'd in part, rev'd in part and remanded sub nom. Sec. 

& Exch. Comm'n v. Graham, 823 F.3d 1357 (11th Cir. 2016). However, since Hines, the Sixth 

and Eleventh Circuits, following the reasoning of other courts, have also found the phrase, “shall 

not be entertained,” jurisdictional, albeit in the context of a different statute, 28 U.S.C. 2255(e). 

See, Taylor v. Owens, 990 F.3d 493, 498 (6th Cir. 2021); United States v. Wheeler, 886 F.3d 415, 

425 (4th Cir. 2018) (finding in view of Wong, “[i]ndeed, a ‘plain reading of the phrase ‘shall not 

entertain’ demonstrates that ‘Congress intended to, and unambiguously did strip the district court 

of the power to act ... unless the savings clause applies.’”) (citations omitted). 

 Although 28 U.S.C. § 2462 was not at issue in Taylor and Wheeler, both cases addressed 

whether the phrase “shall not be entertained” is jurisdictional. Both circuits found that it is. Hines, 

therefore, is no longer authoritative law. Accordingly, if the FEC did not timely commence this 

case under 28 U.S.C. § 2462, this Court lacks subject matter jurisdiction to entertain this case. 

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claims. 

C. The FEC Failed to Timely Commence this Case Under 28 U.S.C. § 2462. 

 Under 28 U.S.C. § 2462, an action for civil penalty must be “. . . commenced within five 

years from the date when the claim first accrued. . .” Id. Even though only one cause of action 

was alleged in this case, the FEC construes each of Rivera’s alleged in-kind contributions as standalone violations (or “a repeated wrong”), akin to successive acts of theft or misappropriation, each 

subject to its own statute of limitations analysis, separately actionable if having occurred within 

the five years preceding the July 14, 2017 filing date of the original complaint. However, unlike 

theft or misappropriation, a contribution to a political campaign is not malum in se. That is, for a 

political contribution to be made in the name of another, something more than the contribution 

itself is required. FEC’s lead counsel, Greg Mueller, explained this to the Court at the hearing on 

Rivera’s Motion to Dismiss the Amended Complaint on April 16, 2019: 

THE COURT: So you’re saying if Mr. Rivera pays for in-kind services and 

is not disclosed by the campaign, that is a violation? 

MR. MUELLER: And there’s the element - - it takes a little bit more than 

that. Directed the campaign to file false disclosure reports with the FEC, disclosing 

it as a campaign or contribution by the candidate to his own campaign. So it’s a 

contribution in the name of another when they make the contribution and say, don’t 

attribute this to me, attribute it to yourself. That’s the heartland of a Section 30122 

violation and it’s what happened here. 

See, D.E. 49, Trans. of Hearing on Motion to Dismiss Amended Complaint, April 16, 2019, at pp. 

16-17, lns. 25; 1-10. 

THE COURT: So tell me how, given the facts alleged in this Complaint, 

the violation of the statute occurred? 

MR. MUELLER: Yes, Your Honor. The defendant took cash, went to a 

vendor and said, I want you to prepare these campaign materials. He then provided 

direction to others to explain to the campaign how to report it so it would be a selfcontribution and, in doing so, he made a false name contribution. It wasn’t from 

him. It was reported to the FEC as being from the candidate himself to the 

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campaign. 

Id. at pp. 17-18, lns. 25; 1-8. 

THE COURT: Okay. So it’s a violation of the campaign, but this is FEC 

versus Mr. Rivera. Why is the violation for Mr. Rivera? 

MR. MUELLER: Because he engaged in the course of conduct and made a 

contribution in the name of another by making these in-kind contributions, by 

providing instructions to the campaign on how to report them so it wouldn’t be 

detected as a violation. 

THE COURT: So because he informed the campaign, listen, don’t put down 

on this form that I paid the printer. You put down on the form that this was either 

a loan or self -funded by the candidate. That’s where we get into trouble, right? 

 MR. MUELLER: Right, correct, Your Honor. 

Id. at p. 24, lns. 4-16. 

Thus, according to the FEC, Rivera’s alleged July-August 2012 in-kind contributions are 

actionable in this case only if Rivera directed Sternad to falsify their origin. However, there is no 

evidence that Rivera ever did so. Sternad testified that it was Ana Alliegro who directed him to 

falsify his FEC Reports. D.E. 142-8, Deposition of Justin Sternad, Sept. 19 2019 ̧ at p. 51, lns. 13-

25. And Alliegro only recalled, after “speaking” with Rivera, advising Sternad to falsify the origin 

of the May-June 2017 direct contributions, which were omitted in both the original and amended 

complaint.1 D.E. 142-5, Alliegro’s Grand Jury Testimony, at p. 32-33, lns. 18-25; 1-2. 

The FEC tries to bridge this gap in proof with allegations that Rivera made efforts to avoid 

a paper trail between himself and the vendors. However, that argument dead ends. As shown, the 

alleged wrong, “the heartland of § 30122,” in this case was Rivera allegedly misleading the FEC 

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 In its Summary Judgment Order, the Court noted that Alliegro’s instructions to Sternad about falsifying the origin 

of contributions was in relation to money deposited in Sternad’s campaign account: “After speaking with Rivera, 

Alliegro advised Sternad to report the funds that were deposited into the Sternad Campaign TD Bank account in 

Washington, D.C. to the FEC as a loan and then ‘go ahead and amend it later, because David supposedly had another 

plan of how he was going to take care of all this.’ However, those funds were not a loan.” D.E. 163, Order Granting 

FEC’s Motion for Summary Judgment, at p. 18. (internal citations omitted). 

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and the public at large by instructing Sternad to falsify the in-kind contributions as personal 

loans. Therefore, there can be no violation of § 30122 if the reporting “in the name of another” is 

not by fault of Rivera. Following Mr. Mueller’s argument, unless Sternad lied at Rivera’s 

direction, Rivera’s alleged July-August 2012 in-kind contributions were not made by him in the 

name of another, even if he sought to conceal his contacts with the vendors. Avoiding a paper 

trail does not equate to a directive to a third party to lie to the FEC. 

Here, Sternad first falsely reported the direct contributions as personal loans on July 10, 

2012 in his FEC 3 Report, on Alliegro’s advice. See, D.E. 142-5, Alliegro’s Grand Jury 

Testimony, at p. 32-33, lns. 18-25; 1-2. Thus, based on the available evidence, the FEC’s claim 

against Rivera first accrued on or before July 10, 2012, more than five years before the FEC filed 

its case on July 14, 2017. In the absence of proof that Rivera ever directed Sternad to falsify the 

origin of the subsequent July-August 2012 in-kind contributions, the FEC cannot prove a § 30122 

violation that fell within the five-year statute of limitations governing this case. Accordingly, under 

28 U.S.C. § 2462, this case was not timely filed and must be dismissed with prejudice because the 

Court, for the reasons explained above, lacks jurisdiction to entertain it. 

D. The FEC Did Not Comply with its Pre-Suit Notice and Conciliation Duties. 

i. The FEC Did Not Comply with its Pre-Suit Notice and Conciliation Duties With 

Regard to the Original Complaint. 

 While the FEC has notice obligations throughout its pre-suit process, the most critical 

phase of its pre-suit protocol commences when the FEC’s general counsel decides to ask the FEC 

to vote on probable cause. At that juncture, the FEC’s general counsel must give the respondent 

advanced notice of her intent to ask for a Commission vote and provide the respondent with a brief 

outlining the legal and factual issues in the case, to which the respondent may respond in writing 

and may also request a probable cause hearing. 52 U.S.C. § 30109(a)(3); 11 C.F.R. § 111.16; 

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Procedural Rules for Probable Cause Hearings, 72 Fed. Reg. 64919 (Nov. 19, 2007). If the 

Commission subsequently finds probable cause, “the Commission shall attempt, for a period of at 

least 30 days, to correct or prevent such violation by informal methods of conference, conciliation, 

and persuasion, and to enter into a conciliation agreement with any person involved.” 52 U.S.C. § 

30109(a)(4)(A)(i). The FEC did not dispute in its Opposition brief that these requirements are 

jurisdictional. See, Fed. Election Comm'n v. Nat'l Rifle Ass'n of Am., 553 F. Supp. 1331, 1333 

(D.D.C. 1983). 

 The FEC says it complied with its pre-suit obligations, but its Opposition brief proves 

otherwise. First, the FEC concedes that UPS returned the “probable cause” letter and brief it sent 

to Rivera, noting that delivery was refused, but offered no evidence that it was Rivera who refused 

it. D.E. 172, at p. 11. Remarkably, the FEC said nothing about its U.S. Post Office “Priority Mail” 

package, which was also returned because the addressee was unknown. In short, it is undisputed 

that Rivera never received either of the two packages that the FEC sent to him forwarding its 

probable cause documents. The FEC also claims that it emailed its probable cause documents to 

Rivera; however, it offered no evidence of delivery, such as a read or delivery receipt. Id. Thus, 

there is also no evidence that Rivera ever received the FEC’s probable cause letter and brief by 

email. 

 Most disturbing, the FEC offered evidence that Rivera, in September 2013, designated a 

lawyer, Yesenia Collazo, Esq., to “. . . receive notifications and other communications from the 

Commission and to act on my behalf before the Commission.” D.E. 172-1, Declaration of Ana 

Pena-Wallace, April 14, 2021, at ¶ 3, and attached FEC Documents Bates Nos. 0253 – 0255. The 

FEC offered no evidence that it ever sent Ms. Collazo its probable cause letter and brief. Rather, 

it appears the FEC ignored Ms. Collazo after encountering difficulties in reaching her following a 

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three year pause in its investigation, deciding instead to correspond directly with her client, Rivera. 

The impropriety in contacting another lawyer’s client without her permission needs no 

explanation. See, Local Rule 11.1 (lawyers admitted to practice in this district are subject to Florida 

Bar Rules); R. Regulating Fla. Bar 4-4.2(a) (“In representing a client, a lawyer shall not 

communicate about the subject of the representation with a party the lawyer knows to be 

represented by another lawyer in the matter,” unless the opposing lawyer consented). Most 

significantly, the FEC cannot credibly claim it gave requisite notice to Rivera by email when it 

chose to ignore a lawyer Rivera designated years earlier to receive FEC correspondence on his 

behalf. 

 The same holds true about the FEC’s efforts to conciliate. Putting aside the fact that 

conciliation must be preceded by proper notice and an opportunity to respond, which did not occur 

here, it is ludicrous that the FEC would argue that it met its conciliation obligations by having a 

single phone call with Rivera knowing that he was represented by counsel. The FEC was duty 

bound to refrain from direct communications with Rivera while he was represented and the FEC 

offered no evidence that Ms. Collazo ever withdrew as Rivera’s counsel. 

 Lawyers represent their clients in settlement negotiations. A lawyer’s ex-parte settlement 

discussion with another lawyer’s client is improper, even if the offending lawyer works for the 

government. See, Bedoya v. Aventura Limousine & Transp. Serv., Inc., 861 F. Supp. 2d 1346, 

1358 (S.D. Fla. 2012) (finding plaintiff’s ex-parte settlement offer to one of the defendants, with 

knowledge that he was represented by counsel, violated Florida Bar Rule 4–4.2, even if the 

communication was made in connection with another forum); see also, R. Regulating Fla. Bar 

Preamble (“every lawyer is responsible for observance of the Rules of Professional Conduct.”). 

By all indications, the FEC never sent conciliation correspondence to Ms. Collazo or otherwise 

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communicated with her about the topic. Instead, the FEC chose to send a proposed Conciliation 

Agreement directly to Rivera at an address it knew was no longer valid and to engage Rivera in a 

single phone conversation about a Conciliation Agreement he had not seen, which he had directed 

the FEC years earlier to send to his counsel, whom the FEC knew was authorized to act on his 

behalf. Whatever difficulties the FEC had in reaching Collazo, all communications should have 

been directed to her and under no circumstance was the FEC justified in circumventing her and 

engaging in direct communications with Mr. Rivera. It was Collazo’s duty to directly communicate 

with Rivera about conciliation, not the FEC’s. Given all of these circumstances, the FEC clearly 

did not discharge its duty to conciliate. 

ii. The FEC Failed to Comply with its Pre-Suit Notice and Conciliation Duties With 

Regard to the Amended Complaint. 

 Finally, the FEC contends that the legal and factual allegations in the amended complaint 

were not subject to separate pre-suit notice and conciliation efforts, arguing that they were 

“reasonably related” to each other and to the allegations in the administrative proceedings. See, 

D.E. 172, FEC’s Opposition Brief, at p. 13. Even after Rivera attached a comparison chart (D.E. 

171-17) of the explicitly different factual and legal allegations between the original and amended 

complaint, the FEC claims that “The Commission did not seek to incorporate new factual 

allegations or new statutory violations unrelated to those that the Commission approved during its 

three votes.” D.E. 172, FEC’s Opposition Brief, at p. 14. The FEC’s position is disingenuous. 

 The FEC’s general counsel requested the Commission to find probable cause against 

Rivera based on the factual and legal analysis in her probable cause brief. See, D.E. 172-1 at FEC 

Bates 00872-00873). The Commission found probable cause based on those allegations on June 

1, 2017, and then authorized general counsel to file the original complaint on July 11, 2017. See, 

D.E. 171-7, FEC Letter to David Rivera Forwarding Proposed Conciliation Agreement (June 2, 

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2017) and D.E. 171-8, FEC Certification Authorizing Office of General Counsel to File a Civil 

Suit (July 11, 2017). The original complaint, therefore, is based on the factual and legal allegations 

in general counsel’s April 28, 2017 probable cause brief. 

 The probable cause brief alleged that Rivera knowingly and willfully assisted in making 

contributions in the name of another in violation of 52 U.S.C. § 30122 and 11 C.F.R. § 

110.4(b)(1)(iii). D.E. 171-6, Letter from FEC to David Rivera Forwarding Probable Cause Brief, 

at FEC Bates No. 00318-00319 (April 28, 2017). It appears that the FEC chose to accuse Rivera 

of secondary liability (assisting in the making) rather than primary liability (making) because the 

sources of the contributions were unknown.2 Id. at FEC Bates No. 00327. Acting general counsel, 

Lisa J. Stevenson, specifically requested the Commission to find probable cause that Rivera 

assisted in the making of contributions to another. D.E. 172-1 at FEC Bates 00872-00873. And in 

its transmittal to Rivera of its proposed Conciliation Agreement, the Commission stated that it had 

found probable cause that Rivera had assisted in making contributions in the name of another. See, 

D.E. 171-7, FEC Letter to David Rivera Forwarding Proposed Conciliation Agreement (June 2, 

2017). Indeed, Rivera was asked to admit in the Conciliation Agreement that he had assisted in 

the making of direct and in-kind contributions in violation of 52 U.S.C. § 30122 and 11 C.F.R. § 

110.4(b)(1)(iii). Id., at FEC Bates No. 00882, ¶¶ 9, 11. And as this Court is well aware, the FEC’s 

sole claim against Rivera in the original complaint was for assisting in making contributions in the 

name of another. See, D.E. 31, Order on Motion to Dismiss, at p. 5. 

 Thus, prior to filing the amended complaint, the Commission never considered whether 

Rivera had primary liability, that is, whether he was the source of and had made the contributions 

2

 To date, even after Sternad’s amendments of his FEC 3 Disclosure, the FEC’s website still shows the sources of 

the disputed contributions as “unknown contributions.” See, 

https://www.fec.gov/data/receipts/?committee_id=C00505529&two_year_transaction_period=2012&cycle=2012&li

ne_number=F3-11AI&data_type=processed. 

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at issue. FEC’s general counsel never drafted a probable cause brief on the issue. The FEC was 

never asked to vote on the issue. Rivera was never given pre-suit notice and an opportunity to 

respond to the issue. Nor was the issue ever the subject of conciliation discussions. The new 

theory of primary liability nevertheless found its way into the amended complaint, supported by 

new factual allegations that led this Court to award the FEC a civil penalty of $456,000.00. 

 Contrary to the FEC’s position, primary and secondary liability in this case are not 

“reasonably related.” One is actionable and the other is not. One resulted in the dismissal of a 

complaint and the other in the award of a civil penalty. Given the magnitude of difference in the 

viability of these two legal theories, and the nature of the facts required to support them,3 the FEC 

had no right to introduce primary liability into this case until the theory and supporting facts had 

been vetted and voted on by the Commission, after Rivera had been given notice and an 

opportunity to address the issue and only after conciliation discussions addressing the issue had 

occurred – all of which the FEC was required to do pursuant to its jurisdictional pre-suit 

procedures. 

 CONCLUSION 

In sum, this Court lacks subject matter jurisdiction over this case. The case was filed 

outside the statute of limitations and in violation of the Commission’s pre-suit obligations, all of 

which are jurisdictional in nature. Accordingly, David Rivera respectfully requests that this cause 

be dismissed with prejudice for lack of subject matter jurisdiction. 

3 As previously noted, in her probable cause brief, FEC general counsel affirmatively represented to the Commission 

that the source of the contributions was unknown. Without any further evidentiary presentation to the Commission, 

FEC counsel alleged in the amended complaint that Rivera was the source of these contributions, an allegation it 

needed to make to support a claim for primary liability. The Commission never vetted or voted on the sufficiency of 

the evidence supporting this change in position. Given the magnitude of these changes in view of the genesis and 

subsequent dismissal of the original complaint, the FEC’s explanation that these changes were driven by inartful 

pleading in the original complaint is disingenuous.

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Dated: April 21, 2021 

Respectfully Submitted, /s Jeffrey D. Feldman 

Jeffrey D. Feldman, Esq. / Fla Bar No. 330302 

TRAILBLAZER 

1200 Brickell Avenue, Penthouse 1900 

Miami, Florida 33131 

Telephone: 305-222-7852 

Facsimile: 305-760-4193 

E-Mail: jfeldman@trailblazerlaw.com

Counsel for Defendant, David Rivera 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on April 21, 2021, I electronically filed the foregoing document 

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being 

served this day on all counsel of record or pro se parties identified on the attached Service List in 

the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF 

or in some other authorized manner for those counsel or parties who are not authorized to receive 

electronically Notices of Electronic Filing. 

/s Jeffrey D. Feldman 

JEFFREY D. FELDMAN 

SERVICE LIST 

Federal Election Commission vs. David Rivera 

Case No. 17-22643 Cooke/Goodman 

 

Greg J. Mueller, Esq. 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

Tel.: 202-694-1650 

Email: gmueller@fec.gov 

Kevin Deeley, Esq. 

Associate General Counsel 

FEDERAL ELECTION COMMISSION 

999 E. Street, NW 

Washington, DC 20463 

Tel.: 202-694-1650 

Email: kdeeley@fec.gov

Lisa J. Stevenson, Esq. 

Acting General Counsel 

FEDERAL ELECTION COMMISSION 

999 E. Street, NW 

Washington, DC 20463 

Tel.: 202-694-1650 

Email: lstevenson@fec.gov 

Shaina Ward, Esq. 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

Tel.: 202-694-1566 

Email: sward@fec.Gov

Counsel for Plaintiff, Federal Election Commission 

Roy J. Kahn, Esq. 

ROY J. KAHN, P.A.

800 Brickell Avenue, Suite 1400 

Miami, Florida 33131 

E-Mail: rjk@roykahnlaw.com 

Telephone: 305-358-7400 

Facsimile: 305-358-7222 

Counsel for Defendant, David Rivera

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