Case 1:17-cv-22643-MGC Document 176 Entered on FLSD Docket 03/24/2022 Page 1 of 12 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No. 17-22643-Civ-COOKE/GOODMAN 

FEDERAL ELECTION COMMISSION, 

Plaintiff, 

v. 

DAVID RIVERA, 

Defendant. 

______________________________________/ 

ORDER DENYING DEFENDANT’S MOTION 

TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 

THIS MATTER is before the Court upon Defendant David Rivera’s Motion to 

Dismiss for Lack of Subject Matter Jurisdiction (the “Motion”) (ECF No. 171), filed March 

31, 2021. Plaintiff Federal Election Commission (“FEC” or “the FEC”) filed its response in 

opposition to the Motion on April 14, 2021. ECF No. 172. Thereafter, Defendant David 

Rivera (“Defendant”, “Defendant David Rivera”, or “Rivera”) filed his reply in support of 

the Motion on April 21, 2021. ECF No. 174. Accordingly, the Motion is ripe for adjudication. 

The Court having reviewed the Motion, the briefing related thereto, the relevant legal 

authorities, and being fully advised, finds, for the reasons set forth below, that the Motion 

should be denied. 

BACKGROUND 

This case stems from campaign funds related to a 2012 political campaign for a U.S. 

congressional seat. Rivera was a United States Congressman representing Florida’s 25th 

Congressional District from January 2011 through January 2013. ECF No. 1 at ¶ 6. In 2012, 

Rivera unsuccessfully ran for re-election as the Republican candidate to represent Florida’s 

redrawn 26th Congressional District. Id. Rivera lost that election to Democrat Joe Garcia 

(“Garcia”). Id. at ¶ 12. Garcia became the Democratic nominee in the 2012 general election 

after defeating three other candidates in the Democratic primary, including Justin Lemar 

Sternad (“Sternad”). Id. 

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The FEC alleges that during the Democratic primary, Rivera executed a scheme to 

secretly provide funds to Sternad’s campaign to weaken Garcia, who was likely to be Rivera’s 

general election opponent. Id. at ¶¶ 1, 26. In April 2012, Rivera initiated the scheme when he 

met with his associate, Ana Sol Alliegro (“Alliegro”), and directed her to approach Sternad 

with an offer to provide financial support to his primary campaign. Id. at ¶¶ 14-15. Alliegro 

did so, and Sternad accepted the offer. Id. ¶ 15. At Rivera’s direction, Alliegro then spent the 

next few months acting as an intermediary, transmitting funds to Sternad, the Sternad 

Committee, and the vendors providing services to that Committee. Id. 

Rivera moved to dismiss the initial complaint on November 22, 2017. This Court 

granted Rivera’s motion on September 27, 2018. In granting Rivera’s motion, the Court 

followed Federal Election Comm’n v. Swallow, 304 F. Supp. 3d 1113, 1115 (D. Utah 2018) where 

the District of Utah determined that Congress did not intend to create secondary liability for 

“helping and assisting” in making a contribution in the name of another when it enacted the 

Federal Election Campaign Act (“FECA”) and dismissed the case. Swallow, 2018 WL 

1725429, at *4. In Swallow, the court also enjoined the FEC from enforcing § 110.4(b)(1)(iii) 

and ordered that § 110.4(b)(1)(iii) be stricken from the Code of Federal Regulations.1 Id. 

Swallow was fatal to the FEC’s claim against Rivera because the initial complaint’s sole claim 

for relief – titled “First Cause of Action” – unambiguously stated that it arose under § 

110.4(b)(1)(iii). Consequently, the court dismissed the initial complaint. 

The FEC filed an Amended Complaint on January 15, 2019. The Amended 

Complaint essentially asserts the same factual allegations as the initial complaint. See generally, 

Am. Compl. Importantly, however, the Amended Complaint does not claim that Rivera 

violated § 110.4(b)(1)(iii). Nor does the Amended Complaint seek relief under § 

110.4(b)(1)(iii). Instead, the Amended Complaint’s sole cause of action asserts that 

“Defendant David Rivera knowingly and willfully violated 52 U.S.C. § 30122; 11 C.F.R. § 

110.4(b)(1)(i) (same), by making contributions in the name of others to Justin Lamar Sternad’s 

2012 primary campaign in Florida’s 26th U.S. Congressional District.” ECF No. 41 at ¶ 35. 

Likewise, in the Amended Complaint’s prayer for relief the FEC seeks a declaration that 

1 Because it did not appear that the FEC appealed the decision in Swallow, see Docket Sheet, 

Federal Election Comm’n v. Swallow, No. 2:15-cv-439-DB (D. Utah 2018), the injunction 

remained in place. 

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Rivera knowingly and willfully violated 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b)(1)(i) by 

making more than $55,601 in contributions in the name of another. Id. at ¶ A, p. 9. Rivera 

moved to dismiss the Amended Complaint on February 1, 2019. The Court denied Rivera’s 

motion after holding a hearing on the same. See ECF Nos. 48 and 49. Accordingly, the 

Amended Complaint is the operative pleading in this action. 

LEGAL STANDARD 

“[A] motion to dismiss for lack of subject matter jurisdiction . . . can be based upon 

either a facial or factual challenge to the complaint.” Lebedinsky v. United States, No. 20-21911-

CIV, 2020 WL 6544638, at *2 (S.D. Fla. Nov. 6, 2020) (quoting McElmurray v. Consol. Gov’t 

of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007)). “When dealing with a facial 

attack, ‘the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) 

motion to dismiss for failure to state a claim is raised,’ that is, ‘the court must consider the 

allegations in the plaintiff’s complaint as true.’” Id. (quoting McElmurray, 501 F.3d at 1251). 

Factual attacks,” on the other hand, challenge “the existence of subject matter jurisdiction in 

fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and 

affidavits, are considered.” Id. at 1529. “[W]hen the attack is factual, ‘no presumptive 

truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will 

not preclude the trial court from evaluating for itself the merits of jurisdictional claims.’” 

Optima Tobacco Corp. v. US Flue-Cured Tobacco Growers, Inc., 171 F. Supp. 3d 1303, 1306 (S.D. 

Fla. 2016) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “If a district 

court determines that it lacks subject matter jurisdiction, it ‘is powerless to continue’ and must 

dismiss the complaint.” Id. (quoting Nalls v. Countrywide Home Servs., LLC, 279 F. App’x 824, 

825 (11th Cir.2008)). 

ANALYSIS 

Here, in what appears to be a last-ditch effort to avoid a final judgment being entered 

against him, Defendant David Rivera – after litigating this case for over three years and after 

the entry of summary judgment in the FEC’s favor – now challenges the Court’s subject 

matter jurisdiction in this case. Defendant David Rivera’s unavailing arguments are: 1) the 

statute of limitations provided for in 28 U.S.C. § 2462 lapsed prior to the filing of this action; 

and 2) the FEC failed to provide Defendant David Rivera with pre-suit notice of his violations 

of 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b)(1)(i). These arguments fail. 

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I. This case was filed prior to the expiration of the statute of limitations. 

According to Defendant David Rivera, this Court lacks subject matter jurisdiction 

because: 

Sternad concealed the true source of the May and June 2012 

contributions by listing them as personal loans in his July 10, 2012 

Quarterly Report. . . For that reason, the sole offense charged in this case, 

making contributions in the name of another, was complete and had 

accrued for statute of limitation purposes no later than July 10, 2012, the 

date when Sternad falsely reported the May and June 2012 contributions 

in his Quarterly FEC 3 Report as personal loans. Subsequent 

contributions were not separate offenses but were part of the same alleged 

scheme, which merely increased the size of an awardable civil penalty. 

Indeed, this is exactly how the FEC pled its case in its pre-suit 

correspondence to Rivera, in its proposed Conciliation Agreement and in 

its two complaints in this case. The operative filing date in this case is 

July 14, 2017, which was more than five years after July 10, 2012, the 

latest date that this case accrued for statute of limitations purposes. 

Accordingly, this case was filed beyond the statute of limitations, 

necessitating, under Judge King’s decision in Graham, dismissal with 

prejudice of the FEC’s claim for civil penalties and declaratory relief. 

ECF No. 171 at pp. 9-10 (internal citations omitted). This argument is flawed. 

Here, as painstakingly detailed in this Court’s Order granting summary judgment in 

favor of the FEC, Defendant David Rivera’s contributions in the name of another occurred 

when he: made multiple cash payments to third-party vendors providing services to the 

Sternad campaign from approximately July 14, 2012 to August 8, 2012, took steps to hide his 

identity, and directed others not to disclose him as the true source of those cash payments. 

See ECF No. 163. Further, as the Court previously held in its Order Denying Defendant David 

Rivera’s Motion to Dismiss the Amended Complaint, the Amended Complaint related back 

to the date of the filing of the original complaint – July 14, 2017. See ECF No. 49 at 33:21-

34:4. Thus, the fact that the Amended Complaint was filed on January 15, 2019, is of no 

significance. 

In addressing Defendant’s erroneous statute of limitations argument, the Court will 

not belabor itself or this Order by repeating what it has already found through its prior rulings 

in this case, but, rather, incorporates those rulings and analyses herein. The Court notes, 

moreover, that it is not impressed with Defendant David Rivera’s argument that his discrete 

repeated violations of FECA should be treated as a single incident that accrued on July 10, 

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2012. The logical extension of Defendant’s argument is that he could have gone on violating 

FECA with impunity after July 10, 2012. While this argument may be a convenient position 

for Defendant David Rivera to take, the Court finds that it lacks legal merit and would create 

an untenable legal precedent. 

Further, Defendant’s reliance upon SEC 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), is misplaced. There, Judge King held that the statute of limitations 

in 28 U.S.C. § 2462 is jurisdictional; however, Judge King went on to hold that the SEC failed 

to adduce evidence demonstrating that the individual defendants committed violations prior 

to the expiration of the five-year statute of limitations period provided for under 28 U.S.C. § 

2462. See id. at 1312 (stating “[t]he SEC’s investigation of this case stretches back at least to 

late 2007. After nearly seven years—and even with the ‘many legal tools’ at its disposal to aid 

in investigation—the SEC has not been able to point to any act of offering or sale of alleged 

securities by any of the defendants in the ‘red zone,’ after January 30, 2008. Although the 

complaint alleged that Cay Clubs’ business activities continued from ‘no later than November 

2004 to at least July 2008,’ Am. Compl. DE # 41 at ¶ 2, the SEC’s proof has not borne out 

that allegation as to the individual defendants.”). That is certainly not the situation presented 

here. Again, as this Court’s summary judgment order details, Defendant committed multiple 

discrete acts in violation of FECA – outside of and after Sternad’s July 10, 2012 Quarterly 

Report. See ECF No. 163. 

It is disingenuous and smacks of hypocrisy that Defendant David Rivera – a former 

U.S. Congressman – now insists that the Court conveniently ignore his multiple discrete 

violations of a federal law in favor of his strained reading of a statute of limitations and his 

interpretation of the FEC’s claims against him. Defendant’s argument also lacks legal 

support. See Sec. & Exch. Comm’n v. Almagarby, No. 17-62255-CIV, 2020 WL 4783405 (S.D. 

Fla. Aug. 17, 2020) (“The continuing violation doctrine is aimed at ensuring that illegal 

conduct is punished by preventing a defendant from invoking the earliest manifestation of 

[his] wrongdoing as a means of running out the limitations clock on a course of misconduct 

that persisted over time. Here, at least some the violative conduct occurred within the 

limitations period. . . . Because some of that conduct occurred within the limitations period, 

the statute of limitations does not bar the SEC’s disgorgement claim.”) (citing United States v. 

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Spectrum Brands, Inc., 924 F.3d 337, 350 (7th Cir. 2019) and Taylor v. Meirick, 712 F.2d 1112, 

1118 (7th Cir. 1983)). See also Gabelli v. S.E.C., 568 U.S. 442, 448 (2013) (“Petitioners argue 

that a claim based on fraud accrues—and the five-year clock begins to tick—when a 

defendant’s allegedly fraudulent conduct occurs. That is the most natural reading of the 

statute.”); accord Sec. & Exch. Comm’n v. Marin, 982 F.3d 1341, 1354 (11th Cir. 2020) (“In Gabelli 

v. SEC, the Supreme Court held that an SEC claim for a civil monetary penalty accrues for § 

2462 purposes at the time of a defendant’s securities law violation[.]”). Thus, the Court finds 

that Defendant’s multiple discrete violations of FECA accrued for purposes of the statute of 

limitations at the time that Defendant committed the violations. As a consequence, the Court 

finds that the five-year statute of limitations provided for under 28 U.S.C. § 2462 did not expire 

prior to the filing of this action on July 14, 2017. And, therefore, Defendant David Rivera’s 

arguments to the contrary fail. 

II. Defendant’s Pre-Suit Notice Arguments Fail 

A. The FEC provided Defendant David Rivera with pre-suit notice of his 

alleged violations. 

Next, Defendant argues that this Court lacks subject matter jurisdiction because the 

FEC purportedly failed to provide him with pre-suit notice in accordance with FECA. The 

Court disagrees. 

Congress authorized the FEC to “formulate policy” under FECA (see, e.g., 52 U.S.C. 

§ 30106(b)(1)), and to make rules and issue advisory opinions. 52 U.S.C. §§ 30107(a)(7), (8); 

id. at §§ 30108; 30111(a)(8). The FEC is also authorized to institute investigations of possible 

violations of the Act, 52 U.S.C. § 30109(a)(1)-(2), and the agency has exclusive jurisdiction to 

initiate civil enforcement actions in the United States district courts. Id. at §§ 30106(b)(1), 

30107(a)(6), 30107(e), 30109(a)(6). Defendant is correct that certain notification requirements 

are triggered when the FEC determines that an individual, such as Defendant, may have 

violated FECA. To this end, in relevant part, 52 U.S.C. § 30109(a)(2) provides: 

If the Commission, upon receiving a complaint under paragraph (1) or on 

the basis of information ascertained in the normal course of carrying out 

its supervisory responsibilities, determines, by an affirmative vote of 4 of 

its members, that it has reason to believe that a person has committed, or 

is about to commit, a violation of this Act . . . the Commission shall, 

through its chairman or vice chairman, notify the person of the alleged 

violation. Such notification shall set forth the factual basis for such 

alleged violation. The Commission shall make an investigation of such 

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alleged violation, which may include a field investigation or audit, in 

accordance with the provisions of this section. 

52 U.S.C.A. § 30109(a)(2). Likewise, in pertinent part, 52 U.S.C. § 30109(a)(3) states: 

The general counsel of the Commission shall notify the respondent of any 

recommendation to the Commission by the general counsel to proceed to 

a vote on probable cause pursuant to paragraph (4)(A)(i). With such 

notification, the general counsel shall include a brief stating the position 

of the general counsel on the legal and factual issues of the case. Within 

15 days of receipt of such brief, respondent may submit a brief stating the 

position of such respondent on the legal and factual issues of the case, 

and replying to the brief of general counsel. Such briefs shall be filed with 

the Secretary of the Commission and shall be considered by the 

Commission before proceeding under paragraph (4). 

52 U.S.C.A. § 30109(a)(3). Thus, in accordance with the above provisions, the FEC is 

required to notify alleged violators when the Commission has found reason to believe they 

committed violations, 52 U.S.C. § 30109(a)(2), and when the General Counsel is 

recommending probable cause to believe they committed violations, 52 U.S.C. § 30109(a)(3). 

Here, the FEC provided Defendant with the required notifications. Incredibly, 

Defendant stated in his Answer to the FEC’s Amended Complaint that he “admits the 

Commission notified him of its ‘reason to believe’ findings in a letter date dated September 

11, 2013.” ECF No. 50, Answer at ¶ 27. Likewise, Defendant admitted that “[o]n September 

25, 2013, [Defendant’s] counsel responded to the Commission’s reason-to-believe letter, 

stating that [Defendant] denied violating the Act as alleged by the Commission.” Id. at ¶ 28; 

ECF No. 41, Am Compl. at ¶ 28. 

In addition to Defendant’s admissions in his Answer to the Amended Complaint, the 

FEC also presented this Court with ample evidence demonstrating that it mailed the required 

notices to Defendant on multiple occasions at his physical address and provided them by 

email to Defendant’s email address. See, e.g., ECF No. 142-36, Portner Decl. at ¶ 5; ECF No. 

172-1 Peña-Wallace Decl. ¶ 11; and ECF No. 171-15, Peña-Wallace June 27, 2017 

memorandum to file regarding a telephone call with David Rivera. Indeed, the FEC has even 

provided the Court with evidence demonstrating that a person at Defendant’s physical 

address (the address that was listed as Defendant’s address for purposes of his campaign 

filings) refused delivery of the UPS package containing the FEC’s notice materials. ECF No. 

172-1, Peña-Wallace Decl. at ¶ 11; see also ECF No. 172-1, (Exhibit 1) at pp. 48-49. The 

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evidence further demonstrates that those documents were also emailed to Defendant at the 

email address that he had been using to respond to the FEC’s prior communications; 

however, not surprisingly, Defendant never responded to that particular FEC email. ECF No. 

172-1, Peña-Wallace Decl. at ¶ 11. 

In the face of the FEC’s evidence, Defendant David Rivera, in a declaration, claims 

that “he never saw” the General Counsel’s April 28, 2017 probable cause notification letter 

(which included the General Counsel’s brief), the FEC’s proposed conciliation agreement, or 

Ana Peña-Wallace’s April 28, 2017 email forwarding the FEC’s April 28, 2017 probable cause 

notification letter (and the General Counsel’s brief) to him “prior to receiving them in 

discovery in this case.” ECF No. 171-12 at ¶ 2. Defendant makes these assertions despite the 

fact that the FEC provided this Court with evidence reflecting that the FEC sent these 

documents to Defendant at his physical address2 (which, again, was the address he listed for 

himself in his campaign filings) and emailed them to Defendant at his comcast.net email 

address.

3 As a result, the Court finds that Defendant’s assertions lack credibility. And, despite 

2 In a Declaration, Defendant conveniently claims that he “did not reside” at the address to 

which the FEC mailed the pre-suit notices during April and June 2017 as he was purportedly 

residing between “Haiti, Dominica, and Central Florida” during the exact timeframe that the 

FEC attempted to mail those notices to him. ECF No. 171-12 at ¶ 6. Defendant, however, did 

not provide this Court with any evidence, other than his own self-serving assertions, to support 

his proposition that he was residing in “Haiti, Dominica, and Central Florida” at the time 

that the pre-suit notices were mailed to him. Even if the Court were to find credible 

Defendant’s assertions that he was purportedly residing in “Haiti, Dominica, and Central 

Florida” around the time that the FEC mailed him the pre-suit notices, the Court also finds it 

telling that Defendant did not provide an updated address to the FEC for receipt of 

correspondence related to the FEC’s investigation despite his full knowledge that he was being 

investigated for violating FECA. Nor did Defendant employ the use of a mail forwarding 

service to ensure that he received important documents such as the FEC’s pre-suit notice 

documents during his purported foray abroad. The Court also finds it telling that Defendant 

does not proffer any explanation as to why he purportedly did not receive any of the emails 

that the FEC sent to him providing the pre-suit notices despite the evidence reflecting that he 

received other emails from the FEC. Cumulatively, these omissions on Defendant’s part leave 

the Court with the inescapable conclusion that Defendant is, once again, being less than 

honest and forthright. 

3 The Court notes that the FEC has presented evidence demonstrating that Defendant used 

his comcast.net email address to respond to discovery in this case in 2020. ECF No. 133-11. 

This further undermines Defendant’s contention that he purportedly did not receive the 

emailed pre-suit notices that the FEC sent to that very same email address. And it further 

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Defendant’s urgings that the FEC has purportedly failed to demonstrate that he received the 

notice materials, the Court is unwilling to put the burden of proving a negative on the FEC. 

The evidence demonstrates that the FEC sent the pre-suit notice documents to Defendant. 

That is enough. Defendant’s argument to the contrary fails. 

B. The Amended Complaint Was Not Subject to Separate Pre-Suit Notice 

In addition to arguing that the FEC did not comply with the pre-suit notice 

requirements of FECA overall, Defendant also argues that the Amended Complaint was 

subject to separate pre-suit notice. This is incorrect. As explained below, the Court finds that 

Defendant Rivera’s contention that the legal and factual allegations in the Amended 

Complaint were subject to separate pre-suit notice lacks legal merit. 

As the FEC correctly points out, each stage of the administrative process included all 

of the financial transactions in the Commission’s complaints, the same statutory violation, 

and a reference to the same broadly applicable implementing regulation. In fact, the “reason 

to believe” notification from the Commission placed Rivera on notice that the FEC found 

reason to believe Rivera knowingly and willfully violated 52 U.S.C. § 30122.” ECF No. 142-

36 at p. 6. Additionally, the formal record of the Commission’s vote is that the Commission 

found, by a vote of 5-0, probable cause to believe that Rivera “knowingly and willfully 

violated 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b).” ECF No. 172-1, Peña-Wallace Decl. 

at ¶ 13; see also id. Exh. 1 at p. 53. Likewise, the General Counsel’s brief concluded that there 

was probable cause to believe that Defendant knowingly and willfully violated 52 U.S.C. § 

20122 and 11 C.F.R. 110.4(b). ECF No. 172-1, Peña-Wallace Decl. at ¶ 11. The brief also 

provided notice to Defendant David Rivera of the violations of 52 U.S.C. 30122 as well as a 

citation to 11 C.F.R. § 110.4(b). See id., Exh. 1 at pp. 33-46. Further, the brief described how 

“[defendant David] Rivera orchestrated a scheme to funnel contributions to Sternad,” “took 

extensive measures to conceal his identity,” and how “Rivera, with Alliegro’s help, 

coordinated and funded the production and distribution of those campaign materials.” Id. 

And the brief even contained a chart showing the exact same transactions, among others, that 

were later included in the Amended Complaint in this action and specified that Rivera 

arranged these payments. Id. at p. 37. As such, the Court agrees with the FEC and finds that 

undermines Defendant’s veracity in this case. 

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while the Amended Complaint differs from the original complaint in that it omits allegations 

and claims that Defendant Rivera “helped and assisted in making a contribution in the name 

of another”, the Amended Complaint is reasonably related to the allegations in the 

administrative proceeding such that the Amended Complaint was not subject to separate presuit notice. To hold otherwise, would impose a burden on the FEC to have to re-initiate 

agency action at the Commission level any time a complaint is amended in federal court. This 

is beyond what the law requires. See Kavanaugh v. Miami-Dade Cty., 775 F. Supp. 2d 1361, 

1367 (S.D. Fla. 2011) (recognizing in the context of EEOC charges “the inquiry becomes 

whether the claims raised in the judicial complaint are related to or grow out of the 

allegations” in the administrative matter); Cooper v. Nielsen, 298 F. Supp. 3d 197, 202 (D.D.C. 

2018) (noting that the “subsequent lawsuit is typically limited in scope to claims that are like 

or reasonably related to the allegations of the charge and growing out of such allegations.”) 

aff’d sub nom. Cooper v. Fed. Emergency Mgmt. Agency, No. 19-5118, 2019 WL 6218791 (D.C. 

Cir. Nov. 15, 2019). And because the Court finds that the Amended Complaint was not 

subject to separate pre-suit notice, the Court finds that Defendant’s argument that the Court 

lacks subject matter jurisdiction purportedly because “the FEC, prior to filing the Am.Compl., 

never gave him notice, an ‘opportunity to respond’ to or attempted to reach a conciliation 

agreement with him about these new allegations[]”, ECF No. 171 at p. 18, fails.

4 

Moreover, Defendant’s reliance upon Fed. Election Comm’n v. Nat’l Rifle Ass’n of Am., 

553 F. Supp. 1331, 1337 (D.D.C. 1983), misses the mark. There, the court found that it lacked 

4 It must be noted that the Court finds Defendant’s pre-suit notice arguments disconcerting. 

This is so because from the evidence before this Court it is quite apparent that Defendant 

actively took steps to avoid the multiple notices that the FEC sent to Defendant’s physical 

address and email address. By refusing or ignoring the physical delivery of notice materials 

from the FEC and then not responding to emails containing notice materials from the FEC 

but now arguing that the FEC failed to provide him with those same notice materials, at worst, 

Defendant is attempting to “game the system” or, at best, “have his cake and eat it too”. 

Regardless of which cliché the Court employs to describe Defendant’s actions, the fact is that 

this Court cannot and will not countenance such behavior. Indeed, doing so would serve to 

erode the rule of law and encourage others to follow the “shining” example that Defendant – 

a former U.S. Congressman – has set through his brazen actions in violating a federal law and 

his attempts to subvert justice and avoid the repercussions of his unlawful acts throughout the 

underlying FEC administrative proceeding and the proceedings before this Court. 

Defendant’s actions poignantly remind the Court of Francis Bacon’s warning: “If we do not 

maintain justice, justice will not maintain us.” 

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subject matter jurisdiction to hear certain allegations and claims raised in an FEC complaint 

because the FEC “did not include any of the detailed facts supporting [those allegations and 

claims] . . . in its notice to the defendants or in the General Counsel’s brief[.] Moreover, the 

failure to include [those] charges eliminated any possibility of ensuring the defendants a fair 

opportunity to demonstrate that no action should be taken or otherwise respond to the FEC’s 

charges.” Id. Here, as discussed above, the FEC’s notification documents, including the 

General Counsel’ brief, layout the particular transactions and statutory violations at issue in 

the Amended Complaint. And, unlike in Fed. Election Comm’n v. Nat’l Rifle Ass’n of Am, the 

Amended Complaint here does not add factual details and allegations that were not subject 

to the administrative process. As a consequence, the Court finds that the Amended Complaint 

was not subject to separate pre-suit notice. 

In short, based upon the above and in reliance upon the ample evidence that the FEC 

has presented, the Court finds that the FEC: filed this action prior to the expiration of statute 

of limitations period set forth in 28 U.S.C. § 2462, complied with its pre-suit notification 

requirements under 52 U.S.C. § 30109, and attempted to conciliate in compliance with 52 

U.S.C. § 30190(a)(4)(A)(i); as a result, Defendant’s arguments for dismissal fail. 

CONCLUSION 

Accordingly, for the reasons discussed above, it is hereby ORDERED and 

ADJUDGED as follows: 

1. Defendant David Rivera’s Motion to Dismiss for Lack of Subject Matter 

Jurisdiction (ECF No. 171) is DENIED. 

2. By separate order, the Court will enter final judgment in favor of the FEC by 

which it will issue a civil penalty against Rivera in the amount of $456,000 and 

costs in the amount of $927 for Defendant’s repeated failure to appear for 

deposition and failure to comply with this Court’s Orders. 

3. Additionally, in the final judgment, the Court will enter a permanent injunction 

against Rivera to prohibit him from making campaign contributions in the 

name of another in violation of 52 U.S.C. § 30122. As such, within five days 

of the date of this Order, the FEC shall provide the Court with a proposed 

order setting forth the civil penalty, costs, and permanent injunction to be 

entered against Defendant David Rivera. Said proposed order shall be sent, via 

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email, to cooke@flsd.uscourts.gov. And counsel for Defendant must be cc’ed 

on said email. 

4. In the interim, the Clerk is directed to CLOSE this case solely for 

administrative purposes. 

DONE and ORDERED in Chambers at Miami, Florida this 23rd day of March 2022. 

Copies furnished to: 

Jonathan Goodman, U.S. Magistrate Judge 

Counsel of Record 

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