OMA-440687-2

Case No. A17-1179

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ROBERT C. MCCHESNEY, in his official capacity as Treasurer of Bart 

McLeay for U.S. Senate, Inc.; and BART MCLEAY FOR U.S. SENATE, 

INC., 

Plaintiffs-Appellants,

v.

STEVEN T. WALTHER, in his official capacity as Chair of the Federal 

Election Commission; and FEDERAL ELECTION COMMISSION,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nebraska

Honorable Laurie Smith Camp, Chief United States District Judge

REPLY BRIEF 

L. Steven Grasz (NE # 19050)

HUSCH BLACKWELL LLP

13330 California Street, Suite 200

Omaha, NE 68154

(402) 964.5000 (Telephone)

(402) 964.5050 (Facsimile)

steve.grasz@huschblackwell.com

Bartholomew L. McLeay (NE # 17746)

KUTAK ROCK LLP

The Omaha Building

1650 Farnam Street

Omaha, NE 68102-2186

Phone: (402) 346-6000

bart.mcleay@kutakrock.com

Appellate Case: 17-1179 Page: 1 Date Filed: 04/19/2017 Entry ID: 4526066 
ii

OMA-440687-2

TABLE OF CONTENTS

Page

I. INTRODUCTION................................................................................................1

II. ARGUMENT.......................................................................................................2

A. The District Court Applied the Correct Standard of Review................2

1. Deference Is Not Appropriate for the Question of Law at 

Issue ............................................................................................2

2. McChesney Has Stated a Cause of Action .................................3

B. The Commission Admits It Did Not Establish the 2014 

Penalties Schedule.................................................................................6

1. A Public Meeting is Required.....................................................6

2. Establishing A Penalties Schedule Requires Evaluative 

Review ........................................................................................7

C. The Commission’s Action Did Not Constitute Use of TallyVote Procedure Because There Were Not Any Marked Ballots ..........9

D. Even if the Commission Complied with the Formal Tally Vote 

Procedure, It Was Not a Routine Matter.............................................12

D. The Commission Seeks Inconsistent and Unfair Treatment...............14

E. This Court Should Require a Complete AR .......................................18

1. Deerbrooke Does Not Dictate a Different Result.....................18

2. The Absence of a Transcript is Telling.....................................20

F. The Commission Did Not Comply With Notice and Comment 

Requirements.......................................................................................21

G. McChesneys’ Claim is Merit-Based and the Commission’s 

Unlawful Action Should Not Be Deemed Acceptable 

Government Conduct ..........................................................................22

III. CONCLUSION................................................................................................27

Appellate Case: 17-1179 Page: 2 Date Filed: 04/19/2017 Entry ID: 4526066 
iii

OMA-440687-2

TABLE OF AUTHORITIES

Page

Cases

Am. Scholastic TV Programming Found. v. F.C.C.,

46 F.3d 1173 (D.C. Cir. 1995) ..............................................................................5

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ..............................................................................................4

Campanale & Sons, Inc. v. Evans,

311 F.3d 109 (1st Cir. 2002) .................................................................................2

City of Ozark, Ark. v. Union Pac. R.R. Co.,

149 F. Supp. 3d 1107 (W.D. Ark. 2015).................................................16, 17, 26

Combat Veterans for Cong. Political Action Comm. v. FEC,

795 F.3d 151 (D.C. Cir. 2015) ....................................................10, 11, 12, 24, 28

Deerbrook Pavilion, LLC v. Shalala,

235 F.3d 1100 (8th Cir. 2000).............................................................................18

Demien Constr. Co. v. O’Fallon Fire Prot. Dist.,

812 F. 3d 654 (8th Cir. 2016)..................................................................15, 17, 18

Dep’t of the Air Force v. Rose,

425 U.S. 352 (1976) ............................................................................................13

ETSI Pipeline Project v. Missouri,

484 U.S. 495 (1988) ..............................................................................................3

Florilli Corp. v. Pena,

118 F.3d 1212 (8th Cir. 1997).............................................................................15

Iowa League of Cities v. EPA,

711 F.3d 844 (8th Cir. 2013)...........................................................................2, 21

Pan Am World Airways, Inc. v. Civil Aeronautics Bd.,

684 F.2d 31 (D.C. Cir. 1982) ..............................................................................26

Prof’ls & Patients for Customized Care v. Shalala,

56 F.3d 592 (5th Cir. 1995).................................................................................21

Sokol v. Kennedy,

210 F.3d 876 (8th Cir. 2000)...............................................................................12

Union Pac. R. R. Co. v. U.S. Dep’t of Homeland Sec.,

738 F.3d 885 (8th Cir. 2013)...............................................................................15

Walter O. Boswell Memorial Hospital v. Heckler,

749 F.2d 788 (D.C. Cir. 1984) ............................................................................19

Appellate Case: 17-1179 Page: 3 Date Filed: 04/19/2017 Entry ID: 4526066 
iv

OMA-440687-2

Statutory Authorities

5 U.S.C. § 706..........................................................................................................19

5 U.S.C. § 706(2).....................................................................................................15

52 U.S.C. § 30104(6)(A) ...........................................................................................5

52 U.S.C. § 30104(a)(6)(B)(II)..................................................................................5

52 U.S.C. § 30104(8)(A) ...........................................................................................5

52 U.S.C. § 30109(a)(2).............................................................................................3

52 U.S.C. § 30109(a)(4)(C)(i)(II)............................................................................14

52 U.S.C. § 30109(a)(4)(C)(iii).....................................................................6, 14, 15

Rules and Regulations

11 C.F.R. § 111.35(b) ................................................................................................4

11 C.F.R. § 111.43(a)-(c)...........................................................................................8

70 Fed. Reg. 75718 ..................................................................................................26

Fed. R. App. P. 10(a)(1)...........................................................................................20

Fed. R. App. P. 32(a)(5)...........................................................................................30

Fed. R. App. P. 32(a)(6)...........................................................................................30

Fed. R. App. P. 32(a)(7)(B).....................................................................................30

Additional Authorities

FEC Directive 52 (Sept. 10, 2008), 

http://www.fec.gov/directives/directive_52.pdf.....................................................9

http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do (Bart McLeay 

2014).....................................................................................................................22

FEC Directive 17 (Sept. 11, 2008)

http://www.fec.gov/directives/directive_17.pdf.....................................................7

Appellate Case: 17-1179 Page: 4 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 1

I. INTRODUCTION1

The district court did not squarely address the “determinative issue” in this 

action, but it correctly stated it: “whether the Commission ‘established’ the 

penalties schedule in accordance with the law in order to have the legal authority to 

impose the fines it assessed” (Appx. 147). The Commission initially identified this 

as McChesney’s “principal argument” (Brief at 17-18), but the Commission’s 

recognition inexplicably faded. After a lengthy and plodding discussion of 

peripheral historical matters, immaterial facts and unremarkable propositions of 

law, the Commission peculiarly declared the “principal argument” it previously 

recognized as prominent to now be “buried,” and the appeal to be about something 

else (Brief at 45, 46) (“[McChesney’s] arguments regarding the Commission’s 

obligation to establish the schedule of penalties [was] buried among the[]

arguments... [T]his case does not concern the Commission’s purported 

‘establishment of a penal code for all federal elections”). 

The Commission’s undulating view of the primary question to be addressed 

in this appeal is a distraction. The issue has been properly framed and is ready for 

this Court’s decision. McChesney seeks reversal of the district court’s order 

dismissing the complaint and a remand for further proceedings.

 

1 Defined terms are the same as in the Brief of Appellants; “Brief” refers to Brief 

of Appellees.

Appellate Case: 17-1179 Page: 5 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 2

II. ARGUMENT

A. The District Court Applied the Correct Standard of Review 

1. Deference Is Not Appropriate for the Question of Law at Issue 

The Commission argues “the ‘entire case on review is a question of law, and 

only a question of law’” and it is “well settled that courts must accord deference, 

when an agency interprets ‘a statute which it administers’” (Brief at 23-24) (citing 

authorities). The Commission further argues the district court “failed to accord the 

FEC the deference to which it is entitled” by substituting “its own assessment” of 

McChesneys’ challenge, which “reflected an application of the wrong standard of 

review” (Brief at 49). The Commission’s arguments are in error. 

The Commission misapprehends the standard of review and deference to be 

afforded a federal agency in this circumstance. “[W]hether and when an agency 

must follow the law is not an area uniquely falling within its own expertise, and 

thus the agency’s decision is less deserving of deference.” Iowa League of Cities v. 

EPA, 711 F.3d 844, 872 (8th Cir. 2013) (quoting Campanale & Sons, Inc. v. 

Evans, 311 F.3d 109, 120 n. 14 (1st Cir. 2002)). Id. (“We are unaware of any line 

of cases that allows an agency to make a binding determination that it has 

complied with specific requirements of the law”). 

This appeal presents a question of law. It does not invoke the expertise or 

special domain of a federal election agency. This Court does not need the 

Commission’s guidance or assistance on matters of law. The Commission is not 

Appellate Case: 17-1179 Page: 6 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 3

entitled to deference over whether it complied with the law in establishing the 2014 

schedule of penalties. The Court should decide that question alone, unaided by the 

Commission’s predictable appraisal of its own conduct.

2. McChesney Has Stated a Cause of Action

The Commission argues the governing regulations for McChesney’s claim

specify only “three permissible grounds for challenging an administrative fine,”

including “factual errors” and “inaccurate calculation of the penalty” (Brief at 47). 

The Commission further argues the district court improperly construed 

McChesney’s challenge to implicitly assert a factual error (Brief at 48). The 

Commission’s arguments are unavailing. 

The Commission fails to acknowledge the statute authorizing the regulation. 

The statute does not contain any limit or exclusivity with regard to defenses. The 

Commission is not allowed to expand its reach inconsistent with the statutory 

structure enacted by Congress. ETSI Pipeline Project v. Missouri, 484 U.S. 495, 

517 (1988) (“[T]he Executive Branch is not permitted to administer [an] Act in a 

manner that is inconsistent with the administrative structure that Congress enacted 

into law”).

Section 30109(a) of Title 52 provides a respondent may submit to the 

Commission any “legal and factual issues” in defense of an alleged violation. 52 

U.S.C. 30109(a)(2) and (3). There is no limit in the statute to three supposed 

Appellate Case: 17-1179 Page: 7 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 4

exclusive “permissible grounds.” There also is no hint in the phrase “factual and 

legal issues” demonstrating Congress intended to delegate authority to the 

Commission to limit defenses. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 

208 (1988) (“It is axiomatic that an administrative agency’s power to promulgate 

legislative regulations is limited to the authority delegated by Congress”).

The Commission’s reading of Section 111.35(b) of the regulations also is 

inconsistent with its language. For example, Section 111.35(b) begins with a 

question and uses several non-restrictive phrases such as “including, but not 

limited to,” “include, but not limited to” and “at least,” belying any intent in the 

regulation to limit defenses. 11 C.F.R. § 111.35(b).

Even the incomplete AR before this Court shows McChesney made a 

legitimate challenge to the Commission on the basis of “factual error” and 

“miscalculation” of the civil money penalty (App. 32, 86). The district court 

agreed: “Plaintiffs have satisfied the requirements of § 111.35(b) ... Section 

111.35(b)(1) does not require the listed items to be the only grounds asserted in

Appellate Case: 17-1179 Page: 8 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 5

defense” (App. 153).

2

The district court’s conclusion is supported by other decisional law. The 

right to challenge a federal agency’s authority is not limited by the agency’s own 

rules or claimed permissible grounds; not even when the restriction is a time limit. 

See Am. Scholastic TV Programming Found. v. F.C.C., 46 F.3d 1173, 1178 n.2 

(D.C. Cir. 1995) (“[A] party who possesses standing may challenge regulations 

directly on the ground that the issuing agency acted in excess of its statutory 

authority in promulgating them, regardless of statutory time limits on challenges”)

(quoting NLRB Union v. FLRA, 834 F.2d 191, 195 (D.C. Cir. 1987)).

The Commission’s Office of the General Counsel arrived at the same 

conclusion (App. 129, 131). It found: “[McChesney’s] legal argument about the 

lawful establishment of the Commission’s schedule of penalties ... does not fall 

within one of the three limited defenses that may be raised in administrative fines 

challenge. This argument, however, raises a fundamental question regarding the 

Commission’s authority to assess civil penalties in administrative fine matters.

 

2 McChesney informed the Commission: “I challenge in my official capacity as 

Treasurer ... the proposed civil money penalty ... on the ... basis of ‘factual error’ 

and ‘miscalculation’” (App. 32). One factual error and miscalculation occurred as 

the result of the Commission’s improper treatment of two Candidate loans, each of 

which was a “contribution” in the nature of an “expenditure from personal funds”

(52 U.S.C. § 30104(a)(6)(B)(II) and not a “contribution” (52 U.S.C. § 

30104(6)(A)) applicable to third parties for the “purpose of influencing the 

election” (52 U.S.C. § 30104(8)(A) (App. 81-86). McChesney showed, once 

corrected, the new amount allegedly owed could not exceed $1,992.00 (App. 85-

86). 

Appellate Case: 17-1179 Page: 9 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 6

[McChesney’s] defense, therefore, may outweigh the policy of treating reporting 

violations as a strict liability offense” (App. 129, 131) (emphasis added).

The district court correctly found McChesney stated a cause of action 

against the Commission in his complaint. 

B. The Commission Admits It Did Not Establish the 2014 Penalties 

Schedule 

1. A Public Meeting is Required

The Commission argues McChesney has not identified any “legal authority 

requiring the Commission” to hold an “open meeting” to establish the 2014 

schedule of penalties (Brief at 35). The Commission’s argument is in error. The 

Commission’s own admissions supply the authority. 

The Commission acknowledges Congress created sunset clauses under 

FECA on multiple occasions in voting to “extend” the law (Brief at 9-10). The 

Commission admits it was required under FECA, 52 U.S.C. 30109(a)(4)(C)(iii), to 

both “establish[] and publish[]” the 2014 schedule of penalties (Brief at 45). The 

Commission further admits its regulations “provide generally for the ‘disposition 

of official Commission business’ through ‘the deliberation of at least four voting 

members of the Commission in collegia’ at an open, public meeting (Brief at 31-

32) (emphasis added). 

The Commission concedes there was “no public meeting” or even a 

“discussion” about establishing the 2014 schedule of penalties (Brief at 30 n. 9; 

Appellate Case: 17-1179 Page: 10 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 7

36). However, a public meeting was required by law, and a time slot for holding a 

meeting was available for the Commission. 

On January 9, 2014, the Clerk issued notice of a public meeting of the 

Commission to be held on January 16, 2014 (Appx. 5, ¶ 13; 7, ¶ 18; 7, ¶ 19). 

There was nothing preventing the Commission from placing the issue on the 

calendar and conducting a public vote on that date, five days before the 

Commission published the action on January 21, 2014 (Appx. 8-9, ¶ 3).3

The Commission does not, because it cannot, truly dispute there is no greater 

duty or core responsibility of the Commission in any five year period than 

establishing the penalty schedule authorizing the Commission to punish individuals 

for election infractions (Appx. 3). Congress’ empowerment of the Commission 

with authority to devise a penal code and then civilly prosecute American citizens 

through assessments is not a routine matter under any circumstance.

2. Establishing A Penalties Schedule Requires Evaluative Review

The Commission argues the “2013 legislation authorizing the extension of 

the administrative fines program did not mandate any particular ‘evaluative 

 

3 The Commission requires only a one week notice for an agenda item (See 

Commission Directive No. 17 (Sept. 11, 2008) (“In order to be placed directly on 

the Agenda for an Open Session, a document must be received in the Commission 

Secretary’s Office by 4:00 pm one week in advance of the Open Session”) (Appx. 

146, 164) (http://www.fec.gov/directives/directive_17.pdf).

Appellate Case: 17-1179 Page: 11 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 8

process’ in connection with extensions or revisions to the schedule of penalties”

(Brief at 45). The Commission is mistaken. 

The Commission admits “FECA establishes a detailed, multi-step 

administrative process,” requiring the Commission to “take into account whether 

the untimely (or not filed) report was election sensitive, how late it was filed, the 

dollar amount of the receipts and disbursements involved, and the number of prior 

violations by the respondent” (Brief at 7) (quoting 11 C.F.R. § 111.43(a)-(c)). The 

Commission describes its duty of establishing the schedule of penalties as 

requiring the Commission to take into “account[] ... the amount of the violation 

involved, the existence of previous violations by the person, and other factors...”

(Brief at 5-6).

The Commission’s requirement to establish and publish a schedule of 

penalties has occurred every few years as a result of sunset clauses in the law 

(Brief at 9-10). The Commission fails to explain how the Commission can “take 

into account” factors Congress required by law to be evaluated without doing an 

evaluation. There is no explanation. 

Unfortunately, however, there is more to the story. Not only did the 

Commission fail to meet in collegia at an open, public meeting, and not only did it 

not perform an evaluative determination of the 2014 schedule of penalties, the 

Commission did not even provide commissioners with the 2014 schedule of 

Appellate Case: 17-1179 Page: 12 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 9

penalties they allegedly were to supposed to approve. The Commission has never 

represented the commissioners actually voted on the 2014 schedule of penalties at 

any time.4

C. The Commission’s Action Did Not Constitute Use of Tally-Vote 

Procedure Because There Were Not Any Marked Ballots 

The Commission argues its action in establishing the 2014 penalties 

schedule “could be addressed pursuant to the agency’s tally vote procedure” and the 

Commission is entitled to deference if it chooses this method (Brief at 33-34). The 

Commission’s arguments are academic. The Commission has a formal tally vote 

procedure under Directive 52, but the Commission did not use it. 

The complaint alleges the Commission violated the tally vote procedure 

identified in Directive 52 (FEC Directive 52 (Sept. 10, 2008)

(http://www.fec.gov/directives/directive_52.pdf) (App.at 6)). Directive 52 requires 

matters “circulated for tally vote” to comply with very strict procedures including 

use of actual written ballots, both signed and dated, that show a “definite vote”

(App. at 6-7). The complaint alleges, based on written documentation provided to 

McChesney pre-suit by the Commission (but not included by the Commission in 

 

4 McChesney noted in his complaint and Brief of Appellants that a Commission 

staff attorney distributed to commissioners only a draft of the unauthorized final 

rule “without attaching the expired penalty schedule” (Appx. 7; Brief of 

Appellants at 5-6) (emphasis added). The Commission does not dispute this 

contention (Brief at 1-50). The Commission in fact agrees the commissioners only 

received the “rulemaking document” (Brief at 45). 

Appellate Case: 17-1179 Page: 13 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 10

the AR) that, on January 7, 2014, a ballot relating to the unauthorized final rule 

(not the 2014 schedule of penalties) was delivered to commissioners stating: “A 

definite vote is required. All ballots must be signed and dated. Please return ONLY 

THE BALLOT to the Commission Secretary. Please return ballot no later than date 

and time shown above” (emphasis in original) (App. at 7). No ballot was ever 

signed, dated or returned by any commissioner pursuant to the requirements of the 

Commission’s tally vote procedure (App. at 7).

The tally vote procedure in Directive 52 is not an anachronistic or 

meaningless formality. It was the subject of a recent ruling by the United States 

Court of Appeals for the District of Columbia Circuit (“DC Court of Appeals”) in 

Combat Veterans for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 154 

(D.C. Cir. 2015), relied upon by the Commission. The DC Court of Appeals in 

Combat Veterans explicitly discussed the Commission’s tally vote procedure: 

“Routine matters can be addressed by the Commission by using a formal ‘tally 

vote’ procedure adopted by the Commission that involves written ballots marked 

by each of the commissioners and returned to the Commission Secretary and 

Clerk” (Brief at 32-33) (emphasis added). 

Combat Veterans renders the Commission’s argument that it should be 

afforded deference moot. The Commission did not use Directive 52. The 

Appellate Case: 17-1179 Page: 14 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 11

commissioners did not sign or date any ballot. They also did not mark any written 

ballot with a definite vote to establish the 2014 schedule of penalties. 

The failure of the Commission to comply with Directive 52 is not 

inconsequential. Combat Veterans is a big reason why. In Combat Veterans, the 

DC Court of Appeals discussed the Commission’s two “paper ballot” practices and 

expressed approval of the tally vote procedure used in Directive 52 because it 

required use of actual written ballots with a definite vote before it would be 

deemed valid and counted. 795 F. 3d at 155; (Appx. 7). 

As the Commission admits, the DC Court of Appeals “called into question”

the Commission’s other no-objection ballot procedure because it did not require

an actual marked ballot with a definite vote. The no-objection ballot was found to 

run afoul of the Commission’s requirement to have an “‘affirmative’ vote of four 

commissioners” when assessing civil money penalties (Brief at 13 n. 4). 

The Commission may have read the words of Combat Veterans, but it has 

not yet learned the lesson. The DC Court of Appeals made clear the Commission 

must use written ballots with an actual written vote to be an acceptable ballot 

method for policy reasons: “The four-affirmative-vote requirement prevents 

partisan misuse of the Commission’s powers and safeguards individuals from 

erroneous deprivations of rights.” Id.

Appellate Case: 17-1179 Page: 15 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 12

Combat Veterans is important because it shows the Commission will be 

properly “called into question” when its practices do not demonstrate 

accountability of each commissioner. Accountability can only truly be assured 

when there is a public vote in an open meeting or use of individually marked, 

signed and dated written ballots. Just as Combat Veterans found, the requirement 

for written ballots “prevents partisan misuse of the Commission’s powers and 

safeguards individuals from erroneous deprivations of rights.” This logic applies 

here.5

D. Even if the Commission Complied with the Formal Tally Vote 

Procedure, It Was Not a Routine Matter

The Commission argues that establishing the 2014 penalties schedule was a 

serious matter, requiring it to act “expeditiously” to avoid the “harm to public 

interest” (Brief at 33). On the other hand, the Commission argues it “was 

reasonable” to treat the act of establishing the 2014 penalties schedule as a “routine 

 

5 Aware of its obvious failure to comply, the Commission has attempted to re-name 

and reinvent its own formal tally vote procedure to be “notational voting” (Brief at 

13 n.4). The Commission’s maneuver should be rejected. This Court long ago 

showed it does not accept this type of revisionist thinking by a federal agency 

charged with meeting specific legal requirements. Sokol v. Kennedy, 210 F.3d 876, 

880 (8th Cir. 2000) (“[A] few sentences were added [to the document] noting that 

‘significant’ and ‘important’ were to be understood to mean outstandingly

remarkable. These post hoc re-definitions, however, were not sufficient to correct 

past errors upon which the ... Decision [was] based”).

Appellate Case: 17-1179 Page: 16 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 13

matter” because it would allow the Commission to deal with “more serious issues”

(Brief at 33) (quoting authorities). The Commission cannot have it both ways.

The Commission admits its regulations provide only a “narrow exception” to 

the statutory mandate of conducting Commission business in an “open, public 

meeting,” and the exception occurs only with regard to “routine matters” (Brief at 

32-33). McChesney quoted the United States Supreme Court decision in Dep’t of 

the Air Force v. Rose, 425 U.S. 352 (1976) and two sister federal courts of appeals 

which discussed the definition and meaning of “routine” in this context (Brief of 

Appellants at 21). The Commission failed to address any of these decisions.

The Commission’s inconsistency and lapses can be reconciled. Its arguments 

are a pretext. This is shown in startling form by the Commission’s assertion that its 

proof that it established the 2014 schedule of penalties is shown by the fact it 

imposed a punishment on McChesney: “The Commission has without doubt 

established a schedule of penalties, as application of the schedule to appellants’

reporting violations attests” (Brief at 45).

The Commission’s belief, or hubris, in claiming it is empowered on its own 

authority is disconcerting by itself. It is made worse by the Commission’s newly 

divined and exaggerated claim it felt the need to act “expeditiously” when its own 

conduct at the time demonstrated otherwise. The establishment of the 2014 

schedule of penalties was a critical subject requiring a public vote, but the 

Appellate Case: 17-1179 Page: 17 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 14

Commission did not even mention it at its first open meeting on January 16, 2014, 

and it planned, and did, merely continue the “FEC’s regular enforcement 

procedures” in the interim without incident (Appx. 8) (Brief at 11).

D. The Commission Seeks Inconsistent and Unfair Treatment

The Commission argues there is “no connection whatsoever between the 

Commission’s extension of its administrative fines regulations and appellants’ 

FECA violations, which occurred over four months after publication of the 

extension” (Brief at 36). The Commission also argues, citing the district court, the 

Commission “did not alter or even mention the civil penalty [appellants] challenge 

in this case” (Brief at 39-40). The Commission’s arguments are in error.

There is a direct connection between the Commission’s action and 

McChesney’s claim. The governing statute authorizes the Commission to “require 

the person” to “pay a civil money penalty” only if it is found in “a schedule of 

penalties” established by the Commission and further that “[a]ny person against 

whom an adverse determination is made may ... fil[e] ... a written petition 

requesting that the determination be modified or set aside.” See 52 U.S.C. 

§ 30109(a)(4)(C)(i)(II) and (iii). The “person” who is “require[d] ... to pay a civil 

Appellate Case: 17-1179 Page: 18 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 15

money penalty” and the “schedule of penalties” upon which the “adverse 

determination” is made are inextricably bound. Id.

6

 

This Court’s precedent also directly supports McChesney’s right to make a 

challenge based on the Commission’s failure to lawfully establish the schedule of 

penalties. See Florilli Corp. v. Pena, 118 F.3d 1212, 1214 (8th Cir. 1997) 

(“[Plaintiff] asserts that such a party would not have standing to bring a procedural 

challenge until the rule has applied to it. On the contrary, this court considers a 

party ‘aggrieved,’ giving the party standing to appeal an agency decision where, as 

here, the agency provided no forum for the party to participate in the proceedings 

through which the agency created the contested provisions’”). 

The Commission’s establishment of the 2014 schedule of penalties (to the 

extent it occurred at all) did not take place in an open, public meeting and there 

was “no forum for [McChesney or any other citizen] to participate in the 

proceedings through which the [Commission] created the contested provisions.”

Id. (emphasis added). See also Union Pac. R. R. Co. v. U.S. Dep’t of Homeland 

Sec., 738 F.3d 885, 900 (8th Cir. 2013) (“Because the penalties are ‘unlawful,’

they must be “set aside”) (quoting 5 U.S.C. § 706(2)). McChesney is an aggrieved 

 

6

The Commission made a similar argument in the district court while conceding 

McChesney’s standing. The district court found: “[T]he Parties agree that the 

Court has ... jurisdiction ... under FECA, 52 U.S.C. § 30109(a)(4)(C)(iii)” (App. 

151). McChesney meets standing requirements of this Court. Demien Constr. Co. 

v. O’Fallon Fire Prot. Dist., 812 F. 3d 654, 656 (8th Cir. 2016) (“We have no 

problem concluding [plaintiff] has standing under Article III”). 

Appellate Case: 17-1179 Page: 19 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 16

party entitled to seek relief under 52 U.S.C. § 30109(a)(4)(C)(iii) by virtue of the 

Commission’s failure to establish the 2014 schedule of penalties in accordance 

with the law. 

The decision in City of Ozark, Ark. v. Union Pac. R.R. Co., 149 F. Supp. 3d 

1107, 1116 (W.D. Ark. 2015) rev’d on other grounds, 843 F. 3d 1167 (8th Cir. 

Dec. 19, 2016) is instructive on this point. In City of Ozark, a city mayor received 

informal approval from city council members to approach defendant railroad 

(Union Pacific) to remove a railroad crossing, which Union Pacific did. Id. The 

city later asked Union Pacific to reinstall the crossing and, after it refused, the city 

filed a lawsuit claiming the informal procedure on which Union Pacific relied to 

remove the crossing was unlawful and invalid because it did not occur by vote in 

an open, public meeting. Id. Under applicable law, before a railroad crossing could 

be closed, there had to be a “majority vote” of the city council, which required a 

“public meeting” (Ark. Code Ann. §§ 14-301-304 (a) and 25-19-106(a)). 

On cross-motions for summary judgment, the district court found in favor of 

the city on the question of whether the informal procedure was legally sufficient. 

Id. The district court found there was no showing “the Council voted during a 

regular, public session” to close the Crossing.” City of Ozark, 149 F. Supp. 3d at

1119 (emphasis added); See also id. at 1118 (“It is undisputed that no public vote

of the City Council was taken”) (emphasis added). The district court found:

Appellate Case: 17-1179 Page: 20 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 17

[T]he question [is] whether the Crossing was closed according to the 

procedures set forth in [statutory law]. ... [T]he Court will assume ... 

[the] Mayor ... received permission from the Council ... [and] asked 

Union Pacific to remove the crossing: [and the Mayor] informed the 

Council, and no one made any objections ...

. . .

The Mayor’s oral permission—even if premised on a genuine, but 

erroneous, belief of his authority, and otherwise well intended—is 

simply not a substitute for proper compliance with [statutory] law. 

[The law] required an affirmative vote and passage.... It is 

undisputed that none of this occurred. Judgment will enter ... in 

Ozark’s favor.

Id. at 1115 (emphasis added)

The district court’s decision in City of Ozark on this issue is useful. The 

government was able to invalidate an action taken years earlier because it had been 

approved only through an informal procedure and the law required a formal vote to 

be taken in a public meeting. The same rule should apply when it involves the 

shoe of the government on the other foot. 

The Commission should not be able to validate an action through a secretive,

informal procedure when the law requires a formal vote to be taken in an open, 

public meeting. The government should not be treated differently than a citizen in 

the same circumstance. The Commission’s action against McChesney was without 

legal authority.7

 

7

The district court in City of Ozark was reversed on the basis of preemption 

because Union Pacific is a “rail carrier” under federal law. Id. at 1170,1172. 

Appellate Case: 17-1179 Page: 21 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 18

If the Commission can conduct vital government business such as 

establishing the penalty schedule for all federal elections across the nation for a five 

year period in a backroom or by telephone consent when voting on a related but 

different topic (and despite a scheduled public meeting) and fail to use a required 

and available formal tally vote procedure in which its rules and precedent of a

federal court of appeals dictate the use of actual written ballots, and further 

withhold critical aspects of the administrative record (AR) on its own authority

when its action is challenged by affected citizens, there is simply no real restriction 

on the Federal Government in terms of accountability to the public.

E. This Court Should Require a Complete AR 

1. Deerbrooke Does Not Dictate a Different Result

The Commission argues in animated fashion the district court followed this 

Court’s “unambiguous instructions” in Deerbrook Pavilion, LLC v. Shalala, 235 

F.3d 1100, 1102 (8th Cir. 2000) in ruling on the adequacy of the AR (Brief at 25). 

The Commission’s argument is overheated. Deerbrook should be followed of 

course, but its guidance on this point is very limited.8

The Commission claimed the district court “admonished” McChesney’s 

argument relating to the AR for its reliance on an “out-of-Circuit decision” and 

 

8 Deerbrooke only said this about the AR: “On a motion to dismiss, a court must 

primarily consider the allegations contained in the complaint, although matters of 

public and administrative record referenced in the complaint may also be taken 

into account” (citations omitted). Id. 

Appellate Case: 17-1179 Page: 22 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 19

further criticized McChesney for citing a “stray quote” of the United States 

Supreme Court (Brief at 27-28). The Commission misreads the record and case 

authority. 

As an initial matter, McChesney will choose not to refer to language in a 

Supreme Court opinion as a “stray quote” (Brief at 17, 29). McChesney also finds 

curious the Commission’s criticism of McChesney for relying on an “out-ofCircuit” decision when it extensively relies, over two pages in its Brief, on a three 

decade-old out-of-circuit decision in Walter O. Boswell Memorial Hospital v. 

Heckler, 749 F.2d 788 (D.C. Cir. 1984) (App. 28-29).

The Commission misapprehends the authority it cites and McChesney’s 

objection. The Commission’s authority, including Walter O. Boswell Memorial 

Hospital, merely provides for “‘review [of] the whole record or those parts of it

cited by a party.’” Id. (emphasis added) (quoting 5 U.S.C. § 706). McChesney

objected in the district court to the Commission’s failure to include those parts of 

the record McChesney cited.

The Commission represented to the district court it “attached those 

‘portions of the administrative record expressly referenced (and thus incorporated 

into) [McChesney’s] complaint,’ when in fact [it] did not do so” (Filing No. 27-2 ¶

Appellate Case: 17-1179 Page: 23 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 20

1 Ex. A). “There are several other parts ... that were not ‘attached’” and they 

should have been (Filing No. 27-2 ¶ 1 Ex. A).9

2. The Absence of a Transcript is Telling

The Commission argues McChesney “now, for the first time, purport[s] to 

fault the Commission for not identifying a ‘transcript’ of any Commission meeting 

concerning the agency’s extension of the Commission’s administrative fine 

regulations” (Brief at 30 n. 9). The Commission misstates the facts and misleads 

the Court regarding the sequence of events. 

The district court in the Order, not McChesney, first identified “release of 

transcripts,” along with “invalidation” of the agency action,” as available remedies 

under the Sunshine Act (App. 162-63). McChesney never sought or suggested a 

transcript as the remedy for the Commission’s violation of law. He merely noted

that, at minimum, this Court “should not resolve the issue of what a transcript 

might say, if extant, without at least ordering a complete AR that will show 

whether a transcript even exists” (Brief at 37).

The Commission’s argument regarding the AR is odd. The Commission 

cites statutory and caselaw authority governing its conduct, including FECA and 

the Sunshine Act, noting they are designed to provide “increased transparency”

(Brief at 35). The Commission then shrugs off its secret telephone and email 

 

9 See Fed. R. App. P. 10(a)(1) (all original exhibits in the district court constitute 

the record on appeal)

Appellate Case: 17-1179 Page: 24 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 21

exchange in January 2014 regarding the unauthorized final rule, conducted without 

any audio or video recording, transcript or minutes for public review, all the while 

exhorting this was important Commission business necessary to avoid “harm to 

public interest” (Brief at 19, 30 n.9, 33).10

F. The Commission Did Not Comply With Notice and Comment 

Requirements

This Court has explained the basis for notice and comment procedures. “An 

agency potentially can avoid judicial review through the tyranny of small 

decisions. Notice and comment procedures secure the values of government 

transparency and public participation, compelling us to agree with the suggestion 

that “[t]he APA’s notice and comment exemptions must be narrowly construed.”

Iowa League of Cities v. EPA, 711 F.3d at 873 (quoting Prof’ls & Patients for 

Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995)).

McChesney already has presented arguments about improper notice in the 

Brief of Appellants and they will not be repeated in light of Iowa League of Cities

(Brief of Appellants at 24, 37 n. 8). The Commission failed to give proper notice of 

the unauthorized final rule, not to mention establishment of the 2014 schedule of 

penalties. The district court’s ruling on this ground also should be reversed.

 

10 McChesney is without words to respond to the Commission’s argument 

McChesney “would be free to listen” to a hypothetical “audio” recording of a 

hypothetical “meeting” of the Commission taken on a hypothetical date (Brief at 

30 n.9) (“Had there been such a discussion, appellants would be free to listen to it 

via the audio recordings publicly available on the FEC’s website”).

Appellate Case: 17-1179 Page: 25 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 22

G. McChesneys’ Claim is Merit-Based and the Commission’s Unlawful 

Action Should Not Be Deemed Acceptable Government Conduct 

The Commission argues McChesney has a “meritless challenge” to the 

$12,122 assessment made by the Commission (Brief at 18, 20). The Commission’s 

argument is false and unfair.

There is nothing about the Treasurer, the Candidate, the campaign 

committee (BMUSI) or the activities involved in this case, especially considering 

the small amount at issue in comparison with the enormous legal effort and 

expense in prosecuting this action, to suggest this litigation is anything but a 

sincere and principled objection to the conduct of the Federal Government.11

This case involves “fourteen contributions,” the two largest of which were 

Candidate loans, out of literally hundreds of campaign contributions.12 The 

Commission does not deny McChesney brought all fourteen contributions to the 

Commission’s attention nearly one year before he was asked by the Commission 

 

11 Robert C. McChesney is a CPA from North Platte, Nebraska, with a long and 

distinguished career (https://thecpt.org/2013/12/10/respected-nebraska-accountantreceives-being-a-difference-award-3/ ). The Candidate is Nebraska lawyer who has 

practiced for 32 years and whose standing can be independently evaluated 

(www.kutakrock.com). 

12See (http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do) (Bart McLeay 

2014) McChesney recognizes matters of public record may be used on a motion to 

dismiss. Deerbrook Pavilion, LLC v. Shalala, 235 F.3d at 1102. McChesney cites 

to “websites” with “non-record documents” relating to the parties only in reply to 

the Commission’s use of same (Brief at 26-27 n. 7). McChesney does not waive 

his right to a complete AR (Brief of Appellants at 2, 39).

Appellate Case: 17-1179 Page: 26 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 23

and, indeed, his disclosure served as the basis for the Commission’s assessment 

(App. 85) (Brief of Appellants 13-14) (Brief at 1-50).

13

McChesney’s challenge is valid and sincere. Robert McChesney informed 

the Commission during his first contact, even before counsel was involved, he 

immediately knew the “penalty was overstated” (App. 71-72). McChesney also 

showed the Commission, even if he accepted the Commission’s general views, 

after he adjusted for their factual errors and miscalculations, the assessment could 

not possibly exceed $1,992.00 (App. 85-86) (Brief at 13).

It took McCheseny only a brief period of time later to determine the penalty 

was not authorized at all, since the penalty schedule on which the assessment was 

based had not been established in accordance with the law (App. 32). Even the 

Office of the General Counsel of the Commission found McChesney’s argument to 

be genuine: “[It] raises a fundamental question regarding the Commission’s 

authority to assess civil penalties in administrative fine matters” (App. 131). 

McCheseny’s claim is far from meritless.

The pejorative term has a better fit for arguments made by the Federal 

Government in this action. The Commission’s defense of its unlawful action is 

worrisome. The schedule of penalties ended on December 31, 2013. There was an 

undeniable “gap” and no program to “extend” at that point (Brief at 10-11). The 

 

13 The Commission also does not challenge or deny McChesney’s assertion that any 

error, if it occurred, was solely due to inadvertence (Appx. at 11, ¶ 29; App. 31).

Appellate Case: 17-1179 Page: 27 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 24

Commission was required to start anew by “establishing” the 2014 schedule of 

penalties, regardless of whether the Commission seeks today to (unjustly) blame 

Congress for a late authorization of the law the Commission was fully aware was 

in the works. 

The Commission did not vote in an open, public meeting or comply with its 

own regulations requiring strict compliance with its tally vote procedure. It ignored 

or failed to comprehend the reason the DC Court of Appeals in Combat Veterans

“called into question” its voting practice, namely, because the Commission did not 

have actual written ballots with a definite vote, the precise circumstance here. The 

Commission also changed its own rule to eschew the sunset clause that Congress 

enacted to force the Commission to periodically re-evaluate the penalties schedule 

under factors Congress dictated. It is undisputed the result of the Commission’s 

action was to avoid having to conduct a public vote on the schedule of penalties

ever again (Appx. 9, ¶ 3).

The Commission’s manipulative action relating to the AR also should give 

this Court pause. The Commission’s process relating to the 2014 schedule of 

penalties was dark and clandestine and without a trace of transparency from the 

outset. For the Commission to then self-select in this proceeding only those 

documents the Commission wants the Court to view and, unspeakably, rebuke

Appellate Case: 17-1179 Page: 28 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 25

McChesney for requesting disclosure of the other documents he cited is

indefensible.

The Commission claims to be a federal agency that vigilantly demands 

transparency, yet it conducted a secret meeting without an audio or video recorder, 

written minutes or a transcript, all on a vitally serious matter it claims had to be 

“expeditiously” addressed to avoid “harm to public interest” (Brief at 33). The 

Commission then contradicted itself, arguing the issue was routine and a vote 

could be performed underground using a fictional procedure the Commission calls 

“notational voting” in order to allow the Commission to deal with “more serious 

issues” (Brief at 33). 

The Commission doubled down on its assertion that the act of establishing 

the schedule of penalties is routine also by chastising McChesney for suggesting 

the Commission should establish a schedule of penalties “through a process 

completely separate from its publication of the schedule” (Brief at 37). 

The Commission apparently overlooked its citation to the penalties schedule 

established in 2005 for a three year period ending in 2008 (Brief at 10). One month 

before the expiring penalties schedule, Congress passed a bill authorizing the 

Commission to establish a new penalties schedule through 2008.14 The 

 

14 See Transportation, Treasury, Housing and Urban Development, the Judiciary, 

The District of Columbia, and Independent Agencies Appropriations Act of 2006, 

Public Law 109-115, Sec. 721, 119 Stat. 2396, 2494 (Nov. 30, 2005);

Appellate Case: 17-1179 Page: 29 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 26

Commission held an open, public meeting and conducted a public vote on 

December 15, 2005, establishing the penalties schedule through December 31, 

2008, and published notice of its action six days later on December 21, 2005. 70 

Fed. Reg. 75718; (Brief at 10). That is precisely how it is supposed to work, as the 

Commission well knows.15

The district court heavily relied on Pan Am World Airways, Inc. v. Civil 

Aeronautics Bd., 684 F.2d 31, 36 (D.C. Cir. 1982) and McChesney cited it eight 

times and included an extensive discussion of the opinion (Appx. 162-163) (Brief 

of Appellants at 24, 27, 30, 31, 32, 33, 34, 36). The Commission did not cite it 

(Brief at 1-50). In addition to the facts here, McChesney explained at length in the 

Brief of Appellants, applying Pan Am, how the unlawful action by the Commission 

was of a serious nature, prejudicial and intentional (as opposed to willful) (Brief of 

Appellants at 33-37). McChesney incorporates those arguments.16

The Commission throughout its Brief suggests the fourteen contributions at 

issue are “minor violations” that are “much like traffic tickets” (Brief at 6, 34). 

That may be true but, unfortunately, the same gravity does not apply to the 

 

http://www.fec.gov/agenda/2006/approve06-01.pdf(page60); 

https://www.gpo.gov/fdsys/pkg/FR-2005-12-21/pdf/05-24296.pdf.

15 If that were not enough, the minutes for the same December 15, 2005 meeting 

identifies the following Agenda item: “Routine Administrative Matters: There 

were no routine administrative matters to come before the Commission” (Id. at 7)

16 City of Ozark also illustrates a citizen should be treated the same as the

government.

Appellate Case: 17-1179 Page: 30 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 27

Commission’s unlawful action. Its conduct, continuing the analogy, is the 

equivalent of an individual impersonating a police officer, having skipped the final 

step of training and never officially becoming sworn-in as a law enforcement 

officer. Society may want to encourage a seat belt offender or a person driving 

with expired license plate tags to take corrective action, but it could never give 

recognition to a government sanction by a person claiming to be an officer who in 

fact never secured official authority. The same applies to the Commission. 

There is one final note of irony bearing on the Commission’s action in this 

matter. Near the same time, in early summer 2015, when the Commission 

communicated with McChesney about the fourteen contributions, the Commission 

Chair publicly commented on the effectiveness of the Commission, regrettably 

declaring to the world the Commission was dysfunctional as a government agency: 

“People think the FEC is dysfunctional. It’s worse than dysfunctional.”

17

III. CONCLUSION

The Commission’s action against McChesney was not in compliance with 

the law. The Federal Government cannot be allowed to conduct a secret vote in a 

back room on a critical government matter and then use that same vote as the legal 

basis for punishing citizens in the name of transparency. 

 

17 https://www.nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-electionabuse-commission-chief-says.html?_r=0).

Appellate Case: 17-1179 Page: 31 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 28

The Court needs to provide guidance to the Commission. The Commission 

may be dysfunctional but, even more, it is not listening. The DC Court of Appeals 

in Combat Veterans “called into question” the Commission’s ballot procedures for 

failing to have signed, dated and written ballots, but the Commission ignored the 

court, as the defective procedure it employed in establishing the 2014 penalty 

schedule for all federal elections across the nation for five years abundantly shows. 

This Court should signal the federal courts are not to be ignored in the future. 

McChesney respectfully requests this Court vacate the Judgment, reverse the 

Order of the district court granting the Commission’s motion to dismiss and 

remand this action for further proceedings in the district court, including ordering

the Commission to make a full production of the AR for this action.

Appellate Case: 17-1179 Page: 32 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 29

Dated this 18th day of April, 2017.

Respectfully submitted,

ROBERT C. MCCHESNEY, in his official 

capacity as Treasurer of Bart McLeay for U.S. 

Senate, Inc., and BART MCLEAY FOR U.S. 

SENATE, INC., Appellants,

By: /s/L. Steven Grasz

L. Steven Grasz (NE #19050)

Husch Blackwell LLP

13330 California Street

Suite 200

Omaha, NE 68154

Phone: 402.964.5000

steve.grasz@huschblackwell.com

Bartholomew L. McLeay (NE 17746)

Kutak Rock LLP

The Omaha Building

1650 Farnam Street

Omaha, NE 68102-2186

Phone: (402) 346-6000

bart.mcleay@kutakrock.com

Attorneys for Appellants

Appellate Case: 17-1179 Page: 33 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 30

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation, Typeface 

Requirements, and Type Style Requirements

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6,476 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Office 

Word 2013 in Time New Roman type style, font size 14. 

This brief complies with the formatting requirements of 8th Circuit Rule 

28A(h) because the electronic version of the brief is in PDF format, and was 

generated by printing to Adobe PDF from the original word processing file.

/s/L. Steven Grasz

L. Steven Grasz

Appellate Case: 17-1179 Page: 34 Date Filed: 04/19/2017 Entry ID: 4526066 
OMA-440687-2 31

CERTIFICATE OF SERVICE

I hereby certify that on April 18, 2017, I electronically filed the foregoing 

with the Clerk of the Court for the United States Court of Appeals for the Eighth 

Circuit by using the CM/ECF system. I certify that all participants in the case are 

registered CM/ECF users and that service will be accomplished by the CM/ECF 

system.

/s/L. Steven Grasz 

L. Steven Grasz

Appellate Case: 17-1179 Page: 35 Date Filed: 04/19/2017 Entry ID: 4526066