UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 17-22643 COOKE/GOODMAN 

 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) OPPOSITION TO MOTION 

DAVID RIVERA, ) TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO DEFENDANT’S MOTION TO DISMISS 

FOR LACK OF SUBJECT MATTER JURISDICTION 

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Plaintiff Federal Election Commission (“FEC” or “Commission”) respectfully submits 

this Memorandum of Law in Opposition to Defendant David Rivera’s Motion to Dismiss for 

Lack of Subject Matter Jurisdiction (ECF No. 171) (hereinafter, “Motion”), and in support 

thereof states as follows:

SUMMARY OF ARGUMENT 

David Rivera’s Motion is based on two flawed theories: First, Rivera argues that the 

FEC’s Amended Complaint is barred by the five-year statute of limitations because the date 

Justin Lamar Sternad signed his first FEC disclosure report was more than five years before the 

FEC filed its complaint, but the contributions described in that disclosure report were not alleged 

as violations in the FEC’s original or amended complaints. Second, Rivera argues that the 

Commission failed to meet its statutory obligations to provide him certain notifications regarding 

its administrative proceedings and to attempt to conciliate prior to filing suit. However, the 

Commission met its notice obligations and attempted to conciliate the matter through repeated 

and diligent pre-litigation efforts to contact the defendant. Rivera’s arguments are meritless, and 

the Motion should be denied.1

 

BACKGROUND 

As this Court held in its Order Granting Plaintiff FEC’s Motion for Summary Judgment 

(ECF No. 163) (“MSJ Order”), then-U.S. Congressman Rivera directly violated the Federal 

Election Campaign Act (“FECA” or “Act”) in 2012 by making $75,927.31 of in-kind 

contributions in the name of another to the primary campaign of Justin Lamar Sternad in 

violation of 52 U.S.C. § 30122. (MSJ Order at 34.) Rivera made these in-kind contributions to 

vendors providing services to the Sternad campaign, while taking steps to hide his identity as the 

source, including using cash to cover his tracks, and directing others to conceal his identity as the 

true source. The factual record in this case has been set forth in detail in the FEC’s previously 

filed Motion for Summary Judgment and Memorandum of Law, (ECF No. 142), and this Court’s 

MSJ Order and therefore the FEC provides this brief procedural background as is relevant for 

purposes of defendant’s Motion. 

                                                            

1

 In addition, counsel for defendant did not confer with FEC counsel prior to filing the 

Motion, and did not file a certificate of compliance, in violation of Local Rule 7.1(a)(3). Kaplan 

v. Lappin, No. 10-80227, 2011 WL 13225150, at *1 (S.D. Fla. Feb. 23, 2011) (“The law in this 

District is well established that if a party fails to confer pursuant to LR 7.1 A3, the Court may 

deny the motion and impose appropriate sanctions, including reasonable attorney’s fees.”) 

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 On April 26, 2013, the Commission notified David Rivera by mail that it had received 

information in the normal course of carrying out its supervisory responsibilities indicating that 

Rivera may have violated provisions of the Act, provided him with factual information, and 

gave him an opportunity to respond. (Decl. of Ana Peña-Wallace ¶ 2 (submitted herewith).) 

Rivera submitted no response. (Id.) After the Commission unanimously found reason to 

believe that Rivera had knowingly and willfully violated 2 U.S.C. § 441f (now 52 U.S.C. § 

30122), it notified Rivera of the alleged violation and its factual basis on September 11, 2013. 

(See 52 U.S.C. § 30109(a)(2); Am. Compl. ¶ 27 (ECF No. 41); Ans. ¶ 27 (ECF No. 50); FEC 

Summ. J. Exh. 33, Portner Decl. ¶ 3 (ECF No. 142-36).) This notification was sent by mail to 

10925 N.W. 43rd Lane, Doral FL 33178-1823 (the “43rd Lane Address”). In September 2013, 

Rivera designated counsel to appear for him before the FEC and listed the 43rd Lane Address 

as his address. (Peña-Wallace Decl. ¶ 3.) Rivera’s counsel mailed a response to the 

Commission’s reason-to-believe letter denying that Rivera had made contributions in the name 

of another. (Id.; Am. Compl. ¶ 28; Ans. ¶ 28.) Agency staff provided a courtesy copy to 

Rivera’s counsel of the earlier notification from April. (Peña-Wallace Decl. ¶ 4.) 

 In order to secure an interview with Rivera during the Commission’s investigation, an 

FEC attorney communicated with Rivera’s counsel by phone, email, and overnight mail, and 

even attempted to send a fax, and communicated with Rivera by phone and email, but was 

unable to secure an interview. (Peña-Wallace Decl. ¶¶ 4-7.) On December 16, 2016, Rivera 

was sent a subpoena with questions and document requests to the 43rd Lane Address and the 

email address he had provided. (Id. ¶ 10.) Rivera emailed a response on January 16, 2017. 

(Id.) 

 After the completion of the investigation, the FEC’s General Counsel notified Rivera on 

April 28, 2017 of her recommendation that the Commission find probable cause to believe that 

he knowingly and willfully violated 52 U.S.C. § 30122 and provided a brief with her positions 

on the legal and factual issues in the matter. (52 U.S.C. § 30109(a)(3); Portner Decl. ¶ 5 (ECF 

No. 142-36).) The FEC sent this notification by UPS overnight mail and the tracking 

information indicated that on April 29, 2017, “[t]he receiver does not want the product and 

refused the delivery.” (Peña-Wallace Decl. ¶ 11.) The notification was also, however, sent to 

the same email address with which Rivera had previously used to communicate. (Id.) Rivera 

did not submit a written response. (Id.) Notice that the General Counsel intended to proceed 

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with the recommendation that the Commission find probable cause was sent to Rivera’s 43rd 

Lane Address and email in May 2017. (Id. ¶ 12.) 

 On June 1, 2017 the Commission voted 5-0 to find probable cause to believe that Rivera 

had knowingly and willfully violated 52 U.S.C. § 30122. (Portner Decl. ¶ 6 (ECF No. 142-

36).) On June 2, 2017, the Commission notified Rivera of these findings and sent a proposed 

conciliation agreement to initiate the required attempt to correct the violations through the 

informal method of entering into such an agreement. (Id.; 52 U.S.C. § 30109(a)(4)(A)(i).) The 

letter and proposed agreement were sent to Rivera by mail on June 2, 2017, at the 43rd Lane 

Address and by email on June 5, 2017. (Peña-Wallace Decl. ¶ 13.) FEC counsel also sent an 

additional follow-up and placed several calls to Rivera. (Id. ¶ 14.) Although he did answer one 

call, he only responded by claiming not to have received the proposed agreement but then did 

not provide an alternative active address. (Id.) 

 Unable to conciliate the matter, the Commission voted unanimously to authorize this 

lawsuit and it was filed on July 14, 2017. (52 U.S.C. § 30109(a)(6); Portner Decl. ¶ 7; Compl. 

(ECF No. 1).) The complaint alleged that Rivera violated 52 U.S.C. § 30122 and a 

subparagraph of its implementing regulation, 11 C.F.R. § 110.4(b)(1)(iii), which prohibits 

knowingly helping or assisting the making of a contribution in the name of another. The Court 

granted the Commission additional time to serve process on Rivera after finding that 

“[w]hether through coincidence or by design” Rivera “has dodged service in this matter and has 

otherwise failed to respond” to attempts to contact him by the FEC and the United States 

Marshals Service. (Order Granting Mot. to Extend the Time for Service at 1 (ECF No. 11).) 

The Marshals were able to successfully serve Rivera on October 20, 2017 at an airport. 

(Process Receipt and Return (ECF No. 15).) 

 Rivera then moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Mot. To 

Dismiss Compl. (ECF No. 17).) Following the submission of the parties’ briefing on that

motion, the United States District Court for the District of Utah issued an opinion in another 

case brought by the FEC. That court granted a motion to dismiss, enjoined the Commission 

from enforcing 11 C.F.R. § 110.4(b)(1)(iii), and ordered that subparagraph stricken from the 

Code of Federal Regulations. After additional briefing about that decision, this Court granted 

Rivera’s motion to dismiss, construing the original complaint as exclusively seeking relief 

under 11 C.F.R. § 110.4(b)(1)(iii). (Order on Mot. to Dismiss at 1-5 (ECF No. 31).) Because 

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that complaint was inartfully pled rather than lacking a jurisdictional basis outside of the 

helping or assisting regulation, the Commission sought leave to file an amended complaint 

focusing on Rivera’s primary liability for violating FECA’s prohibition on contributions in the 

name of another, 52 U.S.C. § 30122. (FEC’s Mot. to Reopen and for Leave to File Am. 

Compl. (ECF No. 32).) The Court granted that motion (Order, January 5, 2019 (ECF No. 40)), 

and the Amended Complaint was filed on January 15, 2019. (ECF No. 41.) Defendant then 

filed a 12(b)(6) Motion to Dismiss the FEC’s Amended Complaint, arguing that the Amended 

Complaint did not state a claim because it failed to allege that Rivera concealed his identity 

from the vendors involved and the Sternad campaign and that the FEC’s claim is barred by the 

statute of limitations. The Court denied defendant’s Motion in its entirety, holding that the 

FEC had stated a claim for a violation of section 30122, and that the Amended Complaint 

related back to the July 14, 2017 date of the original complaint and was therefore timely. See 

Tr. of Hr’g on MTD Am. Compl. (ECF No. 49); see also ECF No. 40. On February 23, 2021, 

this Court issued its Memorandum Opinion awarding summary judgment to the Commission. 

(MSJ Order.) As directed by the Court, the FEC filed its Proposed Order and Final Judgment 

on February 26, 2021. (ECF No. 167-1).

ARGUMENT 

I. THE STATUTE OF LIMITATIONS DOES NOT BAR THE COMMISSION’S 

CLAIM 

Having failed on his previous attempt to dismiss the FEC’s Amended Complaint on 

statute of limitations grounds, Rivera now asserts a new theory. He argues that the five-year 

statute of limitations set out at 28 U.S.C. § 2462 bars the FEC’s Amended Complaint in its 

entirety because Sternad first reported contributions to his campaign that were made from May 

2012 to June 2012 in his Quarterly Report of Receipts and Disbursements submitted on July 10, 

2012, more than five years before the July 14, 2017 filing date of the FEC’s complaint. (Motion 

at 6). Rivera argues this is the determinative date for when all claims for Rivera’s illegal 

contributions accrued, regardless of whether Rivera’s contributions to the Sternad campaign 

occurred after that date. Rivera has pointed to this July 10, 2012 date even though, as defendant 

concedes, none of the contributions from Sternad’s June 2012 disclosure report were alleged in 

the FEC’s Original Complaint or the FEC’s Amended Complaint. Indeed, all of the 

contributions the FEC alleged that Rivera made in violation of 52 U.S.C. § 30122 in the 

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Amended Complaint occurred within the limitations period in July and August 2012, and were 

later reported in Sternad’s subsequent disclosure reports.2 Rivera further argues that equitable 

remedies based on the same set of facts are likewise barred by the statute of limitations. (Id. 

at 4). 

Section 2462 generally provides that “an action, suit or proceeding for the enforcement of 

any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless 

commenced within five years from the date when the claim first accrued.” 28 U.S.C. § 2462. 

Although FECA does not contain an explicit statute of limitations, courts have routinely “applied 

the catch-all five-year limitations period set forth in 28 U.S.C. § 2462” to requests by the FEC 

for civil penalties. Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 410 F. Supp. 3d 

1, 23 (D.D.C.), mot. to certify appeal denied, 415 F. Supp. 3d 143 (D.D.C. 2019).3

                                                            

2

 Sternad originally reported contributions received from July 2012 to August 2012 as 

personal loans. (See ECF No. 142-12 (Exh. 9 to FEC’s Mot. for Summ. J.); MSJ Order at 22-

23.) After his guilty plea, Sternad amended his FEC disclosure reports to reflect that what had 

previously been reported as “loans from personal funds” had actually come in via 

contributions. (See ECF Nos. 142-42, 142-43 & 142-44 (Exhs. 39-41 to FEC’s Mot. for Summ. 

J.).) 

3

 Rivera further argues that § 2462 creates a jurisdictional bar to bringing suit rather than a 

rather than a non-jurisdictional time limit that can be raised as an affirmative defense. In support 

of this argument, Rivera cites SEC v. Graham, 21 F. Supp. 3d 1300, 1308 (S.D. Fla. 2014) 

(“Graham I”), aff’d in part and rev’d in part, SEC v. Graham, 823 F.3d 1357 (11th Cir. 2016) 

(“Graham II”). The Graham I court held that the time limit contained in § 2462 was a 

jurisdictional bar. On appeal, the Eleventh Circuit declined to address whether § 2462 was a bar 

to jurisdiction, instead deciding that § 2462 did not apply to the equitable remedies the SEC 

sought in that case. However, as another court in the Eleventh Circuit has explained, “Graham I

preceded the Supreme Court’s decision in Wong, which ‘made plain that most time bars are 

nonjurisdictional.’ Therefore, Graham I’s reasoning has been undermined and the text of § 2462 

does not support the limitation being jurisdictional.” United States v. Hines, No. 3:16-CV-1477-

J-32PDB, 2017 WL 6536574, at *2 n.2 (M.D. Fla. Dec. 21, 2017) (quoting U.S. v. Wong, 575 

U.S. 402, 409 (2015)). In any event, the Court need not decide this issue — and whether § 2462 

applies to the equitable injunction that was issued — because the claims in the FEC’s Amended 

Complaint were timely filed and § 2462 therefore poses no bar to the civil penalties this Court 

awarded. 

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Rivera’s statute of limitations argument fails for two reasons. First, Rivera’s theory is a 

variation of an argument that has already been rejected by this Court. Second, Rivera’s 

argument is based on a misunderstanding of the law. 

A. STERNAD’S JULY 10, 2012 DISCLOSURE REPORT DOES NOT BAR 

THE FEC’S CLAIMS 

In his motion, Rivera again attempts to place all emphasis on Sternad filing the disclosure 

reports for his campaign, arguing that it was Sternad’s false statement of attributing the 

contributions to himself, as personal loans, that was the gravamen of Rivera’s illegal acts. As 

explained in the Commission’s Opposition to Defendant’s Motion for Summary Judgment (ECF 

No. 148), Rivera continues to conflate section 30122 with what is actually a violation of 18 

U.S.C. § 1001, an argument that he proffered and that was rejected by this Court in his motion to 

dismiss the FEC’s Amended Complaint. (See ECF No. 49 at 13:3-7 (Tr. of Hr’g on MTD Am. 

Compl. at 13:3-7) (Rivera’s counsel arguing that “[i]t’s a 1001 violation” because “[t]he FEC is 

requiring the candidate to truthfully disclose”).) And in granting the FEC’s Motion for Summary 

Judgment and denying defendant’s, this Court held that Rivera willfully violated 30122 by 

“using cash to make contributions to the Sternad Campaign to thereby avoid a paper trail 

reflecting that he was the source of the contributions; utilizing Alliegro and other third parties as 

the ‘middleman’ in the scheme to transfer funds to and/or pay invoices on behalf of the Sternad 

Campaign; and directing Sternad, through Alliegro, in how to complete and submit false FEC 

filings.” (MSJ Order at 35.) 

 Nevertheless, once again, the defendant would like to characterize the violation as one 

related to recordkeeping by Sternad, by making the date he filed his initial disclosure report as 

somehow determinative of when all of the FEC’s claims accrued. To be sure, Sternad himself 

separately violated FECA and pled guilty for his role in this scheme. See United States v. 

Sternad, Case No. 13-cr-20108-CMA (S.D. Fla. Mar. 15, 2013) (ECF No. 13) (Justin Lamar 

Sternad Factual Basis of Guilty Plea). However, and as this Court already has held, the 

contributions in the name of another occurred when Rivera 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 

himself as the true source. Rivera cites no case for his perplexing proposition that the statute of 

limitations for these illegal contributions began on the date Sternad filed his first disclosure 

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report, and that this date is determinative for all the illegal contributions that Rivera made after 

this date. 

Furthermore, Rivera seems to believe that the fact that the May 2012 and June 2012 

contributions from Sternad’s July 10, 2012 disclosure report were noted during the enforcement 

process in the Commission’s Factual and Legal Analysis, (Motion Exh. 4), and the General 

Counsel’s Brief to the Commission, (Id. Exh. 5), but not the Amended Complaint shows that the 

FEC attempted to “suppress its awareness,” that the statute of limitations had “expired” before 

commencing to file suit. (Id. at 9.) Despite defendant’s arguments otherwise, there was no 

deceptive machination on the part of the FEC in not including these contributions in its 

complaint. Rather, the FEC simply included those contributions that were clearly within the 

five-year statute of limitations when the FEC filed this action on July14, 2017, that is, the in-kind 

contributions Rivera made in the name of another between July 2012 and August 2012. It is well 

settled that “[t]he plaintiff is the master of the complaint [and] selects the claims that will be 

alleged in the complaint.” United States v. Jones, 125 F.3d 1418, 1428 (11th Cir.1997). See also

Frederick v. Palm Beach Cmty. Coll., No. 07-80233-CIV, 2007 WL 9701857, at *1 (S.D. Fla. 

Aug. 31, 2007) (granting motion to remand to state court where plaintiff had “amended her 

complaint in light of the fact that the statute of limitations had run pursuant to her federal claims 

. . . and chose to continue only on grounds involving state issues”). 

Moreover, the Amended Complaint’s focus on a subset of the transactions that were 

included in the pre-suit Enforcement process has no bearing on the statute of limitations for those 

transactions. The Court has already held that the allegations in the amended complaint relate 

back to the original complaint. See Tr. on MTD (ECF No. 49); see also Order (ECF No. 40). 

The only violation from the original Complaint that was omitted from the Amended Complaint 

was the latest-occurring one, on August 9, 2012. (Compare Compl. ¶ 13 (ECF No. 1) with Am. 

Compl. ¶ 13 (ECF No. 40).) Furthermore, evidence that predates Rivera’s contributions that 

began in July 2012 is still admissible to prove the existence of the scheme, its background, and 

Rivera’s knowledge and intent, even if not part of the FEC’s timely claims. Fitzgerald v. 

Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (“A statute of limitations does not operate to bar 

the introduction of evidence that predates the commencement of the limitations period but that is 

relevant to events during the period.”); see also United States v. Ashdown, 509 F.2d 793, 798 

(5th Cir.) (“The statute of limitations is a defense . . . not a rule of evidence. . . . [It] has no 

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bearing on the admissibility of evidence .”), cert. denied, 423 U.S. 829 (1975); In re Rothstein

Adler, P.A., 2010 WL 5173796, at *5 (S.D. Fla. Dec. 14, 2010) (“[c]riminal plea agreements are 

admissible to establish the existence of a Ponzi scheme and a wrongdoer’s fraudulent intent”). 

The Court’s reliance on events before July 17, 2012, to establish a violation of § 30122 that 

occurred after that was thus entirely permissible. (See, e.g., MSJ Order at 21-23.) 

B. RIVERA’S CONDUCT WAS NOT A “SINGLE VIOLATION” 

Second, Rivera incorrectly paints his conduct as a “single violation” that accrued on July 

10, 2012. (Motion at 4, 9.) But his conduct was not confined to a single point in time and his 

“illegal conduct” may be “punished;” he may not “invok[e] the earliest manifestation of [his] 

wrongdoing as a means of running out the limitations clock on a course of misconduct that 

persisted over time.” See, e.g., SEC v. Almagarby, 479 F. Supp. 3d 1266, 1271 (S.D. Fla. 2020). 

Discrete but repetitive transactions constitute independently actionable individual violations. 

Indeed, Rivera’s argument is similar to one recently rejected by this Court in Almagarby. 

In that case, the defendants argued that the statute of limitations precluded a disgorgement 

remedy because they started their aged debt transactions more than five years before the SEC 

filed its complaint. Id. at 1270. This Court denied defendants’ motion for summary judgment, 

holding that the SEC’s claims were not time-barred because at least one of the defendants’ 

transactions that led to a disgorgement claim occurred within the five-year statute of limitations 

period. Id. at 1271.4 See also Birkelbach v. SEC, 751 F.3d 472, 479 (7th Cir. 2014) (holding 

that each instance where defendant failed to supervise a subordinate who engaged in trading 

misconduct was a distinct violation of the duty to supervise and created a separate claim). The 

FEC’s Amended Complaint alleges that Rivera made the illegal contributions between July 2012 

and August 2012, and only seeks to recover civil penalties based on the contributions occurring 

during that time frame, all within the five-year statute of limitations period. 

                                                            

4

   Rivera’s reliance on FEC v. Nat’l Repub. Senatorial Comm., 877 F. Supp. 15 (D.D.C. 

1995), (Motion at 5), is also misplaced. At issue in that case was whether the claim accrued after

the Commission completed its investigation and satisfied the statutory requirements contained in 

FECA. The Court concluded that the claim accrued before the end of the administrative process, 

and that the action was not filed until seven years after all the events at issue had completed. 877 

F. Supp. at 21. 3M Co. (Minnesota Min. & Mfg.) v. Browner, 17 F.3d 1453 (D.C. Cir. 1994), 

(Motion at 10, n. 8), is also inapplicable because that case evaluated whether a “discovery of 

violation” rule applied, which is not at issue here. 17 F.3d at 1460. 

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Defendant’s dependence on Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d 666 

(10th Cir. 2016) for his argument that the FEC has alleged only a “single violation,” (Motion at 

4-5), is misplaced. In that case, an environmental organization sued the defendant for alleged 

violations of the Clean Air Act arising from unpermitted modifications to a boiler at a power 

plant. The court held that the plaintiff’s action was time-barred because it was brought more 

than five years after modification began on the boiler, even if unpermitted work on the boiler 

occurred after that. 816 F.3d at 669. In so holding, the court explained that the modification of 

the boiler was a single act, and that a cause of action seeking civil penalties for the owner’s 

failure to obtain a permit accrued for statute of limitations purposes on the first day of 

modification. Id. at 672. The court held that it was “the act of constructing itself that is 

unlawful.” Id. Rivera’s asserted application of Sierra Club here leads to the proposition that if 

he began making illegal contributions to Sternad’s campaign and avoided detection for five years 

after the date Sternad signed his first disclosure report, he could continue to do so indefinitely 

without penalty. Such a conclusion does not follow from Sierra Club, which is more narrowly 

focused on the conduct of modifying a boiler for a facility. All of the violations the Court found 

occurred within the statute of limitations and Rivera’s arguments regarding the timeliness of the 

FEC’s complaint should be rejected. 

II. THE FEC TRANSMITTED ALL REQUIRED ADMINISTRATIVE 

NOTIFICATIONS TO RIVERA 

Contrary to Rivera’s claim, the record shows the FEC provided repeated and ample 

notice to Rivera at each stage of the administrative proceedings. For a matter like Rivera’s 

that the FEC generates, the agency 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). The agency not only transmitted those notifications, it 

undertook extraordinary efforts to send them through multiple means and to multiple 

recipients. Moreover, these facts have been established for purposes of this case, through the 

parties’ summary judgment papers and in part through Rivera’s admissions in his Answer as 

well. 

First, Rivera’s own admissions in his Answer to the Amended Complaint show that 

he received notification that the Commission had found reason to believe that he had 

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committed violations that included the allegation and the factual basis. (52 U.S.C. § 

30109(a)(2); Am. Compl. ¶¶ 27-28 (ECF No. 41) (describing vote to find reason to believe 

and notification that provided a Factual and Legal Analysis); Ans. ¶¶ 27-28 (ECF No. 50).) 

The notification was sent to Rivera’s 43rd Lane Address. (Peña-Wallace Decl. ¶ 3.) Indeed, 

as Rivera also admits, he submitted a designation of counsel and submitted through counsel a 

response to the agency’s findings. (Am. Compl. ¶¶ 27-28 (ECF No. 41); Ans. ¶¶ 27-28 (ECF 

No. 50).) 

The FEC’s Office of General Counsel provided two notices of its recommendation 

that the Commission find probable cause to believe that he committed violations. (52 U.S.C. 

§ 30109(a)(3); Portner Decl. ¶ 5 (ECF No. 142-36).) Word was first sent that the Office was 

prepared to make that recommendation, along with a brief stating the General Counsel’s 

position, by UPS overnight mail. (Peña-Wallace Decl. ¶ 11.) Delivery was refused at 

Rivera’s property, but the notification was also sent to Rivera’s email address. (Id.) A 

second notice that the General Counsel intended to proceed with the recommendation as 

planned was also sent to both Rivera’s physical and email address. (Id. ¶ 12.) 

Rivera did not submit a response to the General Counsel’s probable cause 

recommendation. But as with other types of administrative proceedings, when Rivera later 

decides to disengage he cannot “rely on his own refusal to participate in these proceedings to 

argue that he was not given a meaningful opportunity to be heard.” Marcelin v. City of W. 

Palm Beach, 417 F. App’x 848, 851 (11th Cir. 2011) (per curiam) (citing Harrison v. 

Wille, 132 F.3d 679, 684 (11th Cir.1988)).5

 

In fact, FEC staff made diligent and consistent efforts to provide notice well beyond 

the minimum required by statute. At each stage the Commission sent notifications to 

Rivera’s 43rd Lane Address. (Peña-Wallace Decl. ¶¶ 2-3, 7, 10-13, 15.) At the point Rivera 

designated counsel in this matter the FEC provided all notifications in the case to Rivera’s 

counsel. (Peña-Wallace Decl. ¶¶ 4-5.) When Rivera provided the FEC with his 

                                                            

5

 The record shows repeated instances of Rivera’s failures to comply with legal processes. 

He was found to have aided a witness in twice escaping the country while the criminal process 

unfolded. (MSJ Order at 18.) He dodged service of process. (See supra p. 3.) And he agreed to 

payment of a portion of the costs sought in a sanctions motion as a result of his repeated refusals 

to comply with the terms of deposition notices. (Agreed Order on Motion for Sanctions (ECF 

No. 169).) 

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“Rivera2002@comcast.net” email address the FEC provided notifications to him through that 

means, in addition to notification sent to his address. (Peña-Wallace Decl. ¶¶ 7, 10). Despite 

the fact Rivera now denies receiving those emails, (Motion at 19), he responded to FEC 

counsel from that email address during the administrative proceedings (Peña-Wallace Decl. 

¶¶ 9-10) and he continued to use that email address as recently as July of 2020 during the 

pendency of discovery in this case. (Exh. 10 to Decl. in Supp. of Mot. for Sanctions, July 28, 

2020 (email from Rivera to Kahn) (ECF No. 133-11).) Regardless of which documents 

Rivera acknowledges he received, the record also shows that Rivera participated in the 

administrative process. He filed a response, filed designation of counsel listing his address, 

and spoke with FEC counsel regarding this matter. (Peña-Wallace Decl. ¶¶ 3,7). FEC staff

consistently mailed notices to his address of record, attempted to reach him through counsel 

when it appeared he was represented, and made repeated attempts to contact him by phone.

 Moreover, at the summary judgment stage, the Commission already established through 

testimony and supporting documentary evidence that it met each statutory prerequisite. (SOF ¶¶ 

42-45 (ECF No. 142-1) (citing Portner Declaration ¶¶ 3-7 (ECF No. 142-36).) In response, 

Rivera did not meaningfully controvert these facts, putting forth a single evidentiary objection 

that the facts “cannot be presented in a form that would be admissible in evidence” citing Fed. R. 

Civ. P. 56(c)(2). (Def.’s Statement of Material Facts Submitted in Opp’n to Pl.’s Mot. for 

Summ. J. ¶¶ 42-44 (Aug. 22, 2020) (ECF No. 147).) But the facts were supported by admissible 

declaration testimony and documentary evidence. (Portner Decl. ¶¶ 3-7.) As with other sworn 

testimony the Court considered, Rivera simply misapprehends the evidentiary requirements at 

summary judgment. (MSJ Order at 14-15.) Rivera’s late and broad denials are inconsistent with 

the scheduling order and fail to overcome the clear showing that he received the notices required 

by statute. 

III. THE COMMISSION VOTED TO FIND RIVERA VIOLATED SECTION 30122 

AT EVERY ADMINISTRATIVE STAGE ON THE SAME FACTS 

The original and amended complaints here are “reasonably related to the allegations” in 

the administrative proceedings. Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1307 n.5 (11th Cir. 

2018) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). Rivera 

argues that, even if he had notice of the administrative process, the “Amended Complaint was 

premised upon new facts and legal theories” that were never presented to Rivera or the 

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12 

Commission itself. (Motion 16-20.) But the question of whether the Amended Complaint has a 

sufficient factual and legal nexus with the original Complaint has twice been resolved by the 

Court and Rivera has presented no basis to re-litigate that here. 

At summary judgment, the Court held that the “Amended Complaint essentially asserts 

the same factual allegations as the initial complaint.” (Order at 2 (citing Amended Complaint).) 

In ruling on Rivera’s earlier motion to dismiss, the Court found the Amended Complaint relates 

back under Fed. R. Civ. P. 15(c)(B), and explained “the conduct in this case is payments through 

one individual that is falsely reported in campaign finances. The conduct is the same as is 

alleged in the original Complaint.” (Order Denying Def.’s Mot. to Dismiss, Apr. 16, 2019 (ECF 

No. 48) (transcript pages 33-34).) 

Rivera’s argument that the Amended Complaint is so different than the original 

complaint that he lacked notice also misreads the record. 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. 

 Reason to Believe — The 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, among other statutory provisions. (FEC SOF, Exh. 33, Portner Decl. ¶ 3.) Included 

with this notification was a Factual and Legal Analysis, which described a scheme involving 

Rivera to “hide the true source of funds for Sternad’s campaign by making contributions in the 

name of another and filing false disclosure reports with the Commission.” (Peña-Wallace Decl. 

¶ 3; Exh. 4 to Def’s Mot to Dismiss, FEC 0237 (ECF No. 171-5).) The letter notified Rivera of 

three potential violations (exceeding the contribution limits, making contributions in the name 

of another, and exceeding the currency contribution limit). (Peña-Wallace Decl. ¶ 3.) The 

contribution in the name of another violation, 52 U.S.C. § 30122, became the cause of action in 

this case. The analysis cited the violations as “2 U.S.C. 441f [now 52 U.S.C. 30122] and 11 

C.F.R. § 110.4(b)(1)(i)-(iii).” (Exh. 4 to Def’s Mot to Dismiss, FEC 0237 (ECF No. 171-5)) 

The regulation clauses (i)-(iii) reference two manners of violation taken directly from the 

statutory language, as well as the helping or assisting regulation. 11 C.F.R. § 110.4(b)(1)(i)-

(iii). 

 The General Counsel’s Brief — This brief concluded that there was probable cause to 

believe that David Rivera knowingly and willfully violated 52 U.S.C. § 20122 and 11 C.F.R. 

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110.4(b). (Peña-Wallace Decl. ¶ 11.) This brief provided notice to Rivera about violations of 

52 U.S.C. 30122 as well as a citation to 11 C.F.R. § 110.4(b) generally. (Exh. 1 to PeñaWallace Decl. FEC 0400-413.) The brief described how “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.” (Exh. 1 to Peña-Wallace Decl. FEC 0400 (footnote omitted).) It 

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. (Exh. 

1 to Peña-Wallace Decl. FEC 0410.) 

 Probable Cause Vote Certification — The formal record of the vote is that the 

Commission found probable cause to believe that Rivera “knowingly and willfully violated 52 

U.S.C. § 30122 and 11 C.F.R. § 110.4(b).” (Peña-Wallace Decl. ¶ 13 & Exh. 1 FEC 0875.) 

 Probable Cause to Believe Notice — The notification from the Commission placed 

Rivera on notice that the FEC had found probable cause to believe and that Rivera “knowingly 

and willfully violated 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b).” (Id.) The notice did not 

cite or specify a particular clause of 11 C.F.R. § 110.4(b). This notification attached a proposed 

conciliation agreement. (Id.) The letter also explained that Rivera could request an oral hearing 

before the Commission,” an offer of which he did not avail himself. (Id.)

6

The original and Amended Complaint here thus are “reasonably related to the 

allegations” in the administrative proceedings. Hornsby-Culpepper, 906 F.3d at 1307 n.5; FEC 

v. Nat’l Rifle Ass’n. (“NRA”), 553 F. Supp. 1331, 1336 (D.D.C. 1983) (dismissing counts “not 

related” to transactions that were the subject of the administrative proceeding”). Other cases 

                                                            

6

 Rivera cites and describes at length various agency procedures governing the 

enforcement process (Motion at 12-14, 18 n.11.), but fails to establish that any such procedures 

were not followed here. In any event, each policy contained reservations of discretion and/or 

noted that the procedures were non-binding and did not create any rights. See Agency Procedure 

for Notice to Respondents in Non-Complaint Generated Matters, 70 Fed. Reg. 38617, 38618

(Aug. 4, 2009); Procedural Rules for Probable Cause Hearings, 72 Fed. Reg. 64919, 64920 

(Nov. 19, 2007); Agency Procedure for Disclosure of Documents and Information in the 

Enforcement Process, 76 Fed. Reg. 34986, 34992 (June 15, 2011); Agency Procedures 

Following the Submission of Probable Cause Briefs by the Office of General Counsel, 76 Fed. 

Reg. 63570, 63570-71 (Oct. 13, 2011). 

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confirm the relationship between the administrative matter and subsequent suit was sufficient 

here. See also Kavanaugh v. Miami-Dade Cty., 775 F. Supp. 2d 1361, 1367 (S.D. Fla. 2011) 

(holding that “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). While the administrative proceedings did 

include references to the specific helping or assisting subsection of the implementing regulation, 

11 C.F.R. § 110.4(b)(1)(iii), that theory (and one transaction involving funds from a nonprofit 

that most appeared to be a helping or assisting violation) were deducted from the case when the 

Amended Complaint was filed. 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. Hornsby-Culpepper, 906 F.3d at 1307.

This case bears no resemblance to NRA, (Motion at 12), where the court found that the 

administrative process involved allegations regarding use of the NRA’s charge accounts for 

certain transactions by its political action committee, referred to as the Beeson Allegations. The 

court dismissed separate counts in the complaint that were unrelated to the Beeson facts and 

violations that had been before the Commission. NRA, 553 F. Supp. at 1336. The dismissal 

occurred in the “unusual circumstances” that the litigation sought to involve different 

transactions and violations. Id. at 1338. This case involves transactions and statutory violations 

that were the subject of the administrative process. 

IV. THE FEC MET ITS OBLIGATION TO ATTEMPT TO CONCILIATE 

The FEC met its obligation to attempt to reach a conciliation agreement in this case. 

When the Commission finds “probable cause” to believe that a violation of the Act has occurred: 

[T]he 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. Such attempt 

by the Commission to correct or prevent such violation may continue 

for a period of not more than 90 days. 

52 U.S.C. § 30109(a)(4)(A)(i) (emphasis added). The plain reading of the statute is that the 

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Commission is required only to make an “attempt” to conciliate. 

 The Commission plainly did so here. Agency staff notified Rivera of the Commission’s 

probable cause findings and sent a proposed conciliation agreement in an effort to attempt to 

correct the violations. (See supra pp. 2-3.) The letter and proposed agreement were sent to 

physical and email addresses of Rivera’s that had previously been effective, and FEC counsel 

also sent an additional follow-up and placed several calls to Rivera. (Id.) Rivera’s only 

response when he did receive one call was to claim a lack of receipt, but he did not comply 

with a request to provide an alternative address to which the papers could be sent. (Id.) The 

FEC made more than one “attempt,” and the futility of further efforts had become apparent. 

 Judicial review of the conciliation process is limited, as the Supreme Court recently 

confirmed within the context of a similar provision governing pre-suit conciliation by the Equal 

Employment Opportunity Commission. The Court explained “the EEOC must try to engage the 

employer in some form of discussion (whether written or oral), so as to give the employer an 

opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements 

(and nothing else) ensures that the Commission complies with the statute.” Mach Mining, LLC v. 

E.E.O.C., 575 U.S. 480, 494 (2015). 

Such a limited review is also appropriate in the context of FECA, particularly since the 

legislative history highlights the emphasis Congress placed upon the word “attempt” in the statute. 

As originally written, the statute provided that “the FEC is required to make every endeavor . . . to 

correct or prevent such violation by informal methods of conference, conciliation, and persuasion.” 

2 U.S.C. § 437g(a)(5)(A) (1976). In 1980, Congress removed the words “every endeavor” from the 

statute and replaced them with “attempt.” FECA Amendments of 1979, Pub. L. No. 96-187, Title I, 

§ 108, renumbered § 309, 93 Stat. 1359 (1980); 2 U.S.C. § 437g(a)(4)(A)(i) (1980). Congress made 

a deliberate decision to amend the standard in a way that significantly lowers the burden on the 

Commission and the quantity of resources the agency is required to expend upon each of its 

mandatory conciliation efforts. To transform the requirement of an “attempt” into a requirement 

that the Commission satisfy defendant’s demands would ignore this legislative history and the plain 

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16 

language of the statute.7

 

 Moreover, it is well-established that agencies like the Commission are entitled to 

considerable deference when interpreting the statute that they administer and enforce. Chemical 

Mfrs. Ass’n v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985) (“This view of the 

agency charged with administering the statute is entitled to considerable deference; and to 

sustain it, we need not find that it is the only permissible construction . . . but only that [the 

agency’s] understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a 

court from substituting its judgment for that of [the agency].”). The Commission, which has 

broad discretionary authority over the administration and interpretation of the Act, “is precisely 

the type of agency to which deference should presumptively be afforded.” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). 

Federal courts have considered the FEC’s conciliation efforts in two other cases in which 

the Commission initiated a civil action after unsuccessful conciliation attempts. In evaluating 

whether the Commission complied with the statutory requirement that it “attempt” to conciliate, a 

district court found it appropriate to show “high deference to the agency’s action,” emphasizing that 

deference is due to the FEC “because the FEC’s bipartisan composition makes it especially fit to 

decide issues charged with the dynamics of party politics.” FEC v. Club For Growth, Inc., 432 F. 

Supp. 2d 87, 91 (D.D.C. 2006) (citation and quotation marks omitted). Club For Growth, like 

defendant in this case, argued that the court lacked subject matter jurisdiction because the 

Commission’s conciliation offers were allegedly not made in good faith. The court rejected this 

allegation and denied the defendant’s motion to dismiss, stating that the statutory language 

“requires that the FEC come to the conciliation table, but it doesn’t instruct the FEC on the nature 

of its offerings.” Id. at 92. 

In NRA, 553 F. Supp. 1331 (D.D.C. 1983), the court denied defendants’ motion to dismiss 

for lack of subject matter jurisdiction, which was in part based upon allegations that the 

Commission did not conciliate adequately. The Court specifically rejected defendants’ argument 

that the “FEC has an affirmative duty to do more than mail two conciliation offers to the defendants 

                                                            

7

 The Commission’s conciliation efforts are also required to be kept confidential just like the 

EEOC’s. 52 U.S.C. § 30109(a)(4)(B)(i); Mach Mining, 575 U.S. at 492-93. Probing scrutiny of the 

conciliation process would “fail to give effect to the law’s non-disclosure provision” and 

“undermine[] the conciliation process itself.” Id. at 493. 

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prior to recommending suit.” Id. at 1338. The Court noted that the FEC acted reasonably in filing 

suit after “the defendant did not express a willingness to negotiate, but repeatedly refused to 

concede liability and respond on the merits to the FEC’s proposals.” Id. at 1340. Furthermore, 

“even where the FEC may be found to have inadequately performed or omitted one or more of its 

notice or conciliation obligations, such error may be excused where the act or omission was not 

intentional and where it caused no harm or prejudice to the defendants with respect to their 

participation in the pre-suit and conciliation process.” Id. at 1339. 

Here, where the Commission has omitted none of its obligations and diligently sought to 

engage with Mr. Rivera, there is no basis for finding that the Commission has failed to “attempt” to 

conciliate.8

 “A sworn affidavit from the [agency] stating that it has” provided notice of the 

allegation and tried to engage the respondent in some form of discussion, but “that its efforts have 

failed will usually suffice to show that it has met the conciliation requirement.” Mach Mining, 575 

U.S. at 494. The Commission has provided such an affidavit here and Rivera presents no reason for 

any additional evidence to be required in this case. 

CONCLUSION 

For the foregoing reasons, the Court should deny Rivera’s Motion to Dismiss for Lack of 

Subject Matter Jurisdiction. 

Respectfully submitted, 

Lisa J. Stevenson (Special Bar No. A5502354) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley (Special Bar No. A5502355) 

Associate General Counsel 

kdeeley@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (Special Bar No. A5502376) 

gmueller@fec.gov 

Attorney 

/s/ Shaina Ward 

Shaina Ward (Special Bar No. A5502563) 

                                                            

8

   Even if the Court were to find that the FEC conciliation efforts were somehow 

inadequate, the proper remedy would be to stay the proceedings for conciliation discussions. 

NRA, 553 F. Supp. at 1333 (court may stay action pending cure by FEC); EEOC v. Sears, 

Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980) (“The sufficiency of the conciliation 

effort presents a question of whether the trial court should stay the proceeding for further 

conciliation, not whether it has jurisdiction over the cause.”) (citing EEOC v. Zia Co., 582 F.2d 

527, 533 (10th Cir. 1978)); Marshall v. Sun Oil Co., 605 F.2d 1331, 1339 n.8 (5th Cir. 1979) 

(“The Act’s conciliation requirement is not jurisdictional. . . . If a district court finds that the 

Secretary has not attempted conciliation sufficiently to comply with the Act, then the district 

court may stay proceedings to permit the future efforts that it deems necessary.”).   

Case 1:17-cv-22643-MGC Document 172 Entered on FLSD Docket 04/14/2021 Page 18 of 20
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April 14, 2021 

sward@fec.gov 

Attorney 

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:17-cv-22643-MGC Document 172 Entered on FLSD Docket 04/14/2021 Page 19 of 20
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CERTIFICATE OF SERVICE 

 I, Greg J. Mueller, certify that on April 14, 2021, a true and correct copy of the foregoing 

was served via the Court’s ECF system upon the following: 

Jeffrey D. Feldman, Esq. 

jfeldman@trailblazerlaw.com 

Counsel for the Defendant David Rivera 

Roy J. Kahn, Esq. 

rjk@roykahnlaw.com

Counsel for Defendant David Rivera 

Respectfully submitted, 

/s/ Greg J. Mueller 

Greg J. Mueller (Special Bar No. A5502376) 

Case 1:17-cv-22643-MGC Document 172 Entered on FLSD Docket 04/14/2021 Page 20 of 20