Case 1:17-cv-22643-MGC Document 189 Entered on FLSD Docket 06/10/2022 Page 1 of 8 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

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

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

DAVID RIVERA,

Defendant.

__________________________________/

REPLY TO RESPONSE TO MOTION TO ALTER OR AMEND

OR FOR RELIEF FROM JUDGMENT

Rivera timely1 files this reply (“Reply”) to FEC’s response [DE 186] (“Response”) to

Rivera’s motion to alter or amend the judgment pursuant to Rule 59(e) or to grant relief from the

judgment pursuant to Rule 60(b) [DE 179] (“Motion”). As explained herein, the Court should

reject FEC’s arguments and grant Rivera’s motion because controlling law governing statutory

civil penalties significantly changed after the Court granted summary judgment. In Yates, the

Eleventh Circuit held for the first time that the criminal forfeiture factored analysis governs the

court’s discretion in setting the amount of a statutory civil penalty.

This Court did not have the benefit of Yates at the time of summary judgment. As a result,

the Court applied a different legal analysis than the one required by Yates. Under these

circumstances, the Court should grant this Motion and: (1) vacate the final judgment and the civil

penalty; (2) strike the 300-1000% penalty enhancement provision of 52 U.S.C. § 30109(6) as

1. See [DE 188]. “Rivera” refers to Defendant David Rivera. “FEC” refers to Federal

Election Commission. “FECA” refers to Federal Election Campaign Act, 52 U.S.C. §§ 30101-

30146 (formerly 2 U.S.C. §§ 431-457); see also 11 C.F.R. §§ 1.1-9039.3. “Yates” refers to Yates

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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unconstitutionally vague, arbitrary, capricious, and excessive on its face; (3) schedule an

evidentiary hearing and reconsider its analysis under the Yates test and determine that the amount

of the fine requested by FEC is unconstitutionally excessive under the Yates factors; and (4) grant

general relief consistent with the foregoing.

ANALYSIS

I. 52 U.S.C. § 30109(6) is facially unconstitutional.

In his Motion, Rivera asserted a facial challenge to the 300-1000% penalty enhancement

provision of 52 U.S.C. § 30109(6) as unconstitutionally vague, arbitrary, capricious, and excessive

on its face because it lacks standards to guide its application. See [DE 179 at 2, 4, 15-16, 20]. FEC

doesn’t dispute that the statute is silent on standards for selecting a percentage within the 300-

1000% range. Instead, FEC invokes “broad authority” of courts to fashion remedies for statutory

violations. See [Response at 11]. Citing the Furgatch2 factors, FEC claims that courts supplied the

standard. See id.

However, the Ninth Circuit issued its decision in Furgatch in 1989, thirteen years before

Congress enacted the 300-1000% penalty multiplier. See [Motion at 17-18]; Pub. L. 107-155, 116

Stat. 81, enacted Mar. 27, 2002. Furgatch obtained the factors from the Eleventh Circuit’s decision

in Danube Carpet3 which predated Yates and did not involve FECA or the 300-1000% penalty

multiplier. Moreover, FEC cites no other statutory provision that provides a range of penalties that

has a mandatory minimum of treble damages and allows up to maximum of ten times the amount

at issue. FEC mentions that the statute also provides for criminal penalties, but as Judge Tjoflat

noted in Yates, at least the criminal sentencing guidelines provide a standardized system for

2. FEC v. Furgatch, 869 F.2d 1256, 1258 (9th Cir. 1989).

3. United States v. Danube Carpet Mills, Inc., 737 F.2d 988, 993 (11th Cir. 1984).

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calculating the severity of the penalty based on research. See Yates, 21 F.4th at 1325-26

(“[W]ithout a set of standards, the district court has unfettered discretion to impose any fine within

the statutory range. And that makes imposition of such fines essentially unreviewable for us,

except under the Eighth Amendment.”). By contrast, the most FEC can say for the 2002 McCainFeingold amendments (including § 30109(6)) is that they were a reaction to perceived threats of

foreign influence in U.S. elections – factors not present in this case. See [Response at 18].

FEC also advocates for a “strong presumption” in favor of the range selected by Congress.

See [Response at 13]. However, as Judge Newsom notes in his Yates concurrence the Eighth

Amendment was passed to limit Congress’ authority to punish, and simply deferring to Congress

“[s]eems a bit like letting the driver set the speed limit.” See Yates, 21 F.4th at 1318 (Newsom, J.

concurring).

FEC claims it is significant that this Court did not choose the maximum penalty. However,

choosing the maximum penalty is fully exercising discretion to punish. By contrast, the Yates

found it significant that the trial court selected the minimum statutory penalty. Because the trial

court in Yates did not exercise its discretion to punish above the minimum, its discretion did not

come into play and the facial invalidity of the statute was not at issue.

II. Yates significantly changed the law.

FEC claims that Yates was not a change in the law justifying a Rule 59(e) or 60(b) motion.

In support of its argument, FEC misplaces reliance on this Court’s inapplicable order in Katzoff v.

NCL Bahamas, No. 19-22754-Civ, 2022 U.S. Dist. LEXIS 56438, at *2 (S.D. Fla. Jan. 21, 2022).

In Katzoff, the plaintiff moved for reconsideration of a partial summary judgment based on Torres

v. Wal-Mart Stores, 2021 U.S. Dist. LEXIS 154516, *1 (S.D. Fla. Aug. 17, 2021), another district

court order issued by Judge Altman five days after the Katzoff court granted summary judgment

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for the defendant. Obviously, Judge Altman’s order in Torres was not “controlling” on this Court

in Katzoff, and there was no indication that Torres “changed” the law in any meaningful way.

Rather, Torres was merely supplemental authority that came out five days too late for plaintiff to

use at summary judgment and did not provide a legitimate basis for a motion for reconsideration.

In short, Katzoff doesn’t apply here because it did not involve an intervening controlling decision

of the Eleventh Circuit that significantly altered the applicable legal analysis governing the issues

decided at summary judgment.

Unlike Judge Altman’s order in Torres, the Eleventh Circuit’s decision in Yates “generally

or substantively alter[ed] existing law” by overruling or “creating a significant shift in the court’s

analysis[.]”4 Specifically, in Yates, the Eleventh Circuit shifted: (1) away from the Furgatch (i.e.,

Danube Carpet) analysis that this Court employed at summary judgment;5 and (2) in favor of the

“factors in the criminal forfeiture context[.]” See Robson 200, Ltd. Liab. Co. v. City of Lakeland,

No. 8:20-cv-0161-KKM-JSS, 2022 U.S. Dist. LEXIS 53746, at *12 (M.D. Fla. Mar. 24, 2022)

(i.e., “(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.”) (citing Yates, 21 F.4th at 1314; United States v.

Bajakajian, 524 U.S. 321, 338-39, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998)).

4. See Dr. Seuss Enters., Ltd. P'ship v. ComicMix Ltd. Liab. Co., 553 F. Supp. 3d 803,

810 (S.D. Cal. 2021) (“[C]ases which generally or substantively alter existing law, such as by

overruling it, or creating a significant shift in a court's analysis,” are intervening changes in law

warranting relief, whereas “cases which merely confirm, clarify or explain existing case law do

not provide a basis for relief.”) (quoting Teamsters Loc. 617 Pension & Welfare Funds v. Apollo

Grp., Inc., 282 F.R.D. 216, 224 (D. Ariz. 2012)).

5. See [DE 163 at 35] (citing Furgatch, 869 F.2d at 1258 (citing Danube Carpet, 737

F.2d at 993)).

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FEC claims that the Yates standard is not new because it was applied in criminal cases and

forfeiture cases before Yates. [Response at 10] (citing United States v. Chaplin's, Inc., 646 F .3d

846, 851 (11th Cir. 2011); United States v. 817 NE. 29th Drive, Wilton Manors, Fla., 175 F.3d

1304, 1309 (11th Cir. 1999).) FEC also relies on the Ninth Circuit’s decision in United States v.

Mackby, 339 F.3d 1013, 1017-18 (9th Cir. 2003) but the first Eleventh Circuit decision to cite

Mackby is Yates.

Contrary to FEC’s argument, the Eleventh Circuit found it a significant change when the

factors were first adopted in the forfeiture context:

On appeal of the Rule 60(b) denial, this Court rejected all of Estella's claims

except her claim that the forfeiture of her home violatesthe Excessive Fines Clause.

Estella had not raised this claim in district court. In the period between the district

court's decision and the appeal, however, the Supreme Court ruled that the

Excessive Fines Clause applied to civil forfeiture proceedings, see Austin v. United

States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), and this Court

determined that analysis of Excessive Fines claims is a pure question of law, see

United States v. One Single Family Residence, 13 F.3d 1493, 1497 (11th Cir.1994).

The court vacated and remanded this case to allow further development of the

factual record in light of these decisions. See United States v. One Parcel of Real

Estate, 28 F.3d 115, No. 92-5142 (11th Cir.1994) (unpublished).

United States v. 10380 S.W. 28th St., 214 F.3d 1291, 1293 (11th Cir. 2000).

And prior to Yates district courts were unsure whether to apply the forfeiture factors to

statutory civil penalties because of the distinctions between the two types of penalties:

Given the obvious distinctions between the facts of this case [(i.e., an

excessive fines challenge to section 162.09)] and a forfeiture, the Court is not

persuaded that this test is applicable when examining fines imposed by a code

enforcement board. Nonetheless, in an abundance of caution, the Court will apply

the test. Application demonstrates that summary judgment is warranted for

Defendants.

Ficken v. City of Dunedin, No. 8:19-cv-1210-CEH-SPF, 2021 U.S. Dist. LEXIS 78930, at *70

(M.D. Fla. Apr. 26, 2021); Robson 200, Ltd. Liab. Co. v. City of Lakeland, No. 8:20-cv-0161-

KKM-JSS, 2022 U.S. Dist. LEXIS 53746, at *22-23 (M.D. Fla. Mar. 24, 2022) (“Although this

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tripart test initially arose in the criminal forfeiture context, the Court follows the lead of other

district courts and applies them in this context.”) (citing Ficken, 2021 U.S. Dist. LEXIS 78930,

2021 WL 1610408, at *24; Gordon v. State, 139 So. 3d at 960-64 (Fla. 2d DCA 2014) (applying

the factors to an excessive fine analysis of a Florida criminal law)).

Yates was the first Eleventh Circuit case to apply the forfeiture factors to statutory civil

penalties. FEC admits that it “squarely raised” the issue of the amount of fines at summary

judgment. In deciding that issue, this Court applied a test that is no longer applicable under Yates.

Accordingly, the Court should vacate and reconsider under Yates.

Because Yates did not exist at the time of summary judgment, Rivera could not have raised

the argument it makes post-judgment. Therefore, FEC cannot establish a waiver. Rivera opposed

the imposition of a fine at summary judgment. He could not dispute the standard until the Eleventh

Circuit changed the law in Yates. Moreover, regardless of any response by River on the issue, the

Court still must apply the correct test under controlling law. Lastly, FEC’s waiver argument is

inapplicable because the summary judgment order was interlocutory.6

6. See Photographic Illustrators Corp. v. Orgill, Inc., 370 F. Supp. 3d 232, 245 n.3

(D. Mass. 2019) (“Orgill claims that PIC waived this argument by not raising it in its opposition

to Orgill's prior motion for summary judgment. Orgill relies on the proposition that parties cannot

raise new arguments on a motion for reconsideration under Federal Rule of Civil Procedure 59(e).

Rule 59(e) deals with motions to alter or amend a final judgment, and the Court's 2015 summary

judgment order was interlocutory. Accordingly, PIC has not waived this argument.”) (citation

omitted). In a footnote, FEC claims that Rivera was required to confer before filing its motion.

However, FEC does not cite any cases denying motions on this basis. Other cases have declined

to do so. See it is clear that a conference would not have resolved the issues raised in the Plaintiff's

Motion. See Eitzen Chem. A/S v. Carib Petroleum, No. 10-23512-CIV-SIMONTON, 2017 U.S.

Dist. LEXIS 228380, at *5-6 (S.D. Fla. Sep. 20, 2017); Phillips v. M.I. Quality Lawn Maint., No.

13-20854-CIV-SIMONTON, 2016 U.S. Dist. LEXIS 203788, at *5 (S.D. Fla. Sep. 30, 2016).

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Case 1:17-cv-22643-MGC Document 189 Entered on FLSD Docket 06/10/2022 Page 7 of 8 

CONCLUSION

For the foregoing reasons, Rivera asks this Court to grant this Motion and: (1) vacate the

final judgment and the civil penalty; (2) strike the 300-1000% penalty enhancement provision of

52 U.S.C. § 30109(6) as unconstitutionally vague, arbitrary, capricious, and excessive on its face;

(3) reconsider its analysis under the Yates test and determine that the amount of the fine requested

by FEC is unconstitutionally excessive under the Yates factors; and (4) for general relief consistent

with the foregoing.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 10, 2022, a copy of this document as refiled 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

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 Jeffrey David Feldman

FEDERAL ELECTION COMMISSION TRAILBLAZER

1050 First Street NE 1200 Brickell Avenue

Washington, DC 20463 Penthouse 1900

202-694-1566 Miami, FL 33131

sward@fec.gov 305-222-7851

Counsel for Plaintiff FEC jfeldman@trailblazerlaw.com

Counsel for Defendant David Rivera

Respectfully submitted,

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Case 1:17-cv-22643-MGC Document 189 Entered on FLSD Docket 06/10/2022 Page 8 of 8 

/s/ Thomas L. Hunker

Thomas L. Hunker

Fla. Bar No. 38325

Sarah Hafeez

Fla. Bar No. 111518

HUNKER APPEALS

110 SE 6th Street, Suite 2330

Fort Lauderdale, FL 33301

877-841-8808

thomas.hunker@hunkerappeals.com

stefanie.eiermann@hunkerappeals.com

cyndy.wald@hunkerappeals.com

Counsel for Defendant David Rivera

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