No. 17-1179

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.,

Appellants,

v.

Steven T. Walther, in his official capacity as Chair of the

Federal Election Commission, et al.,

Appellees.

Appeal from U.S. District Court for the District of Nebraska – Omaha

(8:16-cv-00168-LSC)

BRIEF OF APPELLEES

Lisa J. Stevenson 

Acting General Counsel

Kevin Deeley

Associate General Counsel 

Erin Chlopak

Assistant General Counsel

Robert W. Bonham III 

Senior Attorney

FOR APPELLEES

STEVEN T. WALTHER AND 

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

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SUMMARY OF THE CASE

Appellants Bart McLeay for U.S. Senate and Robert C. McChesney, in his 

official capacity as its treasurer, challenge the district court’s dismissal of their

petition for judicial review of an administrative fine imposed by the Federal 

Election Commission. The Commission imposed the fine as a result of appellants’ 

failure to timely disclose $112,425 in campaign contributions received shortly 

before a May 2014 election. 

Appellants do not contest their failure to make the disclosures required by 

the Federal Election Campaign Act. Instead, they claim that the penalty schedule 

upon which the Commission relied was not lawfully established. 

The district court concluded that it could properly consider the public and 

administrative record documents referenced in appellants’ complaint, that the 

challenged rule was lawfully promulgated through notational voting, and that good 

cause existed to waive certain procedures of the Administrative Procedure Act. 

Because the district court’s dismissal decision was plainly correct and 

appellants have failed to identify any basis for this Court to reach a different result, 

the Commission does not believe oral argument is necessary. If the Court decides 

to schedule oral argument, the Commission agrees with appellants that ten minutes 

per side would be appropriate. 

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TABLE OF CONTENTS

Page

COUNTERSTATEMENT REGARDING JURISDICTION 1

COUNTERSTATEMENT OF ISSUES PRESENTED 2

COUNTERSTATEMENT OF THE CASE 3

I. STATUTORY AND REGULATORY BACKGROUND 3

A. Reporting Requirements for Political Committees 3

B. FECA’s Enforcement Procedures 4

1. General Provisions 4

2. FECA’s Administrative Fines Program 5

3. The Commission’s Administrative Fines 

Regulations 6

4. Modifications to the Commission’s 

Administrative Fines Regulations 9

II. THE ADMINISTRATIVE FINE AT ISSUE IN THIS APPEAL 12

III. PROCEEDINGS IN THE DISTRICT COURT 15

IV. THE DISTRICT COURT’S REJECTION OF APPELLANTS’ 

CHALLENGE TO THEIR ADMINISTRATIVE FINE 16

SUMMARY OF THE ARGUMENT 19

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Page

ARGUMENT 22

I. STANDARD OF REVIEW 22

II. THE DISTRICT COURT CORRECTLY REJECTED 

APPELLANTS’ CHALLENGE TO THE COMMISSION’S 

ADMINISTRATIVE FINE DETERMINATION 25

A. The District Court Properly Considered the Portions 

of the Administrative Record Relied Upon by Appellants 25

B. The District Court Conclusion that the Commission Complied 

With the Sunshine Act When Extending the Administrative 

Fine Regulations Was Sound 31

C. The District Court Rightly Held That the Commission’s 

Regulatory Extension Was Consistent With the APA

and FECA 36

1. The APA’s Pre-Adoption Notice and Comment 

Requirements May Be Waived 37

2. The FEC Had Good Cause to Exempt the 2014 

Extension of Administrative Fines Regulations 

from the APA’s Pre-Adoption Notice and 

Comment Requirement 38

a. Pre-Adoption Notice and Comment Were 

Unnecessary 38

b. Pre-Adoption Notice and Comment Would Have 

Been Contrary to the Public Interest 40

3. The FEC Also Demonstrated Good Cause to Waive 

the APA’s 30-Day Grace Period Before Publication 41

4. Appellants Do Not Meaningfully Dispute the 

Findings of Good Cause to Waive Certain APA 

Requirements Here 43

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5. The Authorizing Legislation Imposed No 

Procedural Requirements Above and Beyond 

the APA On the Commission’s Establishment 

of A Schedule of Penalties 44 

D. Appellants’ Judicial Review Action Also Warranted 

Dismissal Based on Appellants’ Failure to Bring a 

Proper Challenge to Their Administrative Fine 46

CONCLUSION 50

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TABLE OF AUTHORITIES

Cases Page

Almoghrabi v. GoJet Airlines, LLC, No. 14-CV-00507-AGF,

2015 WL 2177374 (E.D. Mo. May 8, 2015).................................................... 26

Atchison, T. & S.F. Ry. Co. v. Witchita Bd. of Trade, 412 U.S. 800 (1973) ......... 24

Bettor Racing, Inc. v. Nat’l Indian Gaming Comm’n,

812 F.3d 648 (8th Cir. 2016) ............................................................................ 24

Braniff Master Exec. Council of Air Line Pilots Ass’n Int’l v. 

 Civil Aeronautics Bd., 693 F.2d 220 (D.C. Cir. 1982) .................................... 35

Brown v. United States Dep’t of Interior,

679 F.2d 747 (8th Cir. 1982) ...................................................................... 23, 25

Buckley v. Valeo, 424 U.S. 1 (1976)........................................................................ 3

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984).................................................................................... 24, 50

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

983 F. Supp. 2d 1 (D.D.C. 2013).................................................................. 8, 47

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

795 F.3d 151 (D.C. Cir. 2015)..................................................... 2, 6, 7, 13, 32, 34

Commc’ns Sys., Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1978)...................... 2, 32, 33

Cox for U.S. Senate Comm., Inc. v. FEC, No. 03 C 3715,

2004 WL 783435 (N.D. Ill. Jan. 22, 2004)................................................... 8, 47

Cunningham v. R.R. Bd., 392 F.3d 567 (3d Cir. 2004).......................................... 29

Deerbrook Pavilion, LLC v. Shalala,

235 F.3d 1100 (8th Cir. 2000) .......................................................... 2, 17, 25, 26

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Dynegy Power Mktg, Inc. v. FERC, Nos. 04-1034, 04-1041, 04-1055, 

04-1085, 04-1088, 04-1089, 04-1091, 04-1120, 04-1193, 04-1194, 04-1195,

2004 WL 1920775 (D.C. Cir. Aug. 26, 2004).................................................... 30

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981)............................................................................................ 24

First Nat’l Bank of Fayetteville v. Smith, 508 F.2d 1371 (8th Cir. 1974)....... 23, 25

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)................................. 28

Global NAPs, Inc. v. FCC, 247 F.3d 252 (D.C. Cir. 2001)....................... 24, 46, 49

Grand River Enters. Six Nations, Ltd. v. Beebe,

574 F.3d 929 (8th Cir. 2009) ............................................................................ 23

H & Q Properties, Inc. v. Doll, 703 F.3d 852 (8th Cir. 2015) .............................. 23

Harris v. 575 Folk Constr. Co., 138 F.3d 365 (8th 1998) ................................... 43

Hedge v. Lyng, 689 F. Supp. 884 (D. Minn. 1987) ............................................... 38

Iowa League of Cities v. EPA, 711 F.3d (8th Cir. 2013)....................................... 37

Johnson v. Sec’y of Dep’t of Veterans Affairs, No. 4:15-CV-1869 CAS

2016 WL 3997072 (E.D. Mo. July 26, 2016)................................................... 26

Kuhn for Cong. v. FEC, No. 2:13-CV-3337-PMD,

2014 WL 7146910 (D.S.C. Dec. 15, 2014).................................................. 8, 47

Lovely v. FEC, 307 F. Supp. 2d 294 (D. Mass. 2004)............................................. 8

Mack Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012)................................ 39, 40

Marshall Cty. Health Care Auth. v. Shalala,

988 F.2d 1221 (8th Cir. 1993) .......................................................................... 23

Meyers v. Starke, 420 F.3d 738 (8th Cir.2005)....................................................... 43

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Mobil Oil Corp. v. EPA, 35 F.3d 579 (D.C. Cir. 1994)......................................... 39

Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983)............................................................................................ 24

North Carolina Growers Ass’n v. United Farm Workers, 

702 F.3d 755 (4th Cir. 2010) ............................................................................ 39

Pacific Legal Found. v. Council on Envtl. Quality, 

636 F.2d 1259 (D.C. Cir. 1980)........................................................................ 34

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

684 F.2d 31 (D.C. Cir. 1982)...................................................................... 35, 36

Petry v. Block, 737 F. 2d 1193 (D.C. Cir. 1984) .................................................... 41

Podraza v. Whiting, 790 F.3d 828 (8th Cir. 2015) ................................................ 26

R.R. Comm. v. United States, 765 F.2d 221 (D.C. Cir. 1985)......................... 32, 33

Seattle Audobon Soc’y v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994)............. 28

South Dakota v. U.S. Dep’t of Interior, 

423 F.3d 790 (8th Cir. 2005) ............................................................ 2, 25, 34, 50

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007)....................... 26

U.S. Steel Corp. v. EPA, 595 F.2d 207 (5th Cir. 1979)......................................... 44

U.S. Steel Corp. v. EPA, 605 F.2d 283 (7th Cir. 1979)......................................... 42

United States v. Brewer, 766 F.3d 884 (8th Cir. 2014)............................... 2, 37, 38

United States v. Cain, 583 F.3d 408 (6th Cir. 2009) ............................................. 38

United States v. Gavrilovic, 551 F.2d 1099 (8th Cir. 1977)........................ 2, 38, 42

United States v. Gould, 568 F.3d 459 (4th Cir. 2009)........................................... 38

United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013) ....................................... 38

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Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749 (D.C. Cir 2001).............. 39

Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759 (8th Cir. 2004)............ 24, 49

Walter O. Boswell Mem’l Hosp. v. Heckler, 

573 F. Supp. 884 (D.D.C. 1983) ...................................................................... 28

Walter O. Boswell Mem’l Hosp. v. Heckler 749 F.2d 788 

(D.C. Cir. 1984) ........................................................................................... 28, 29

Whitney v. Franklin Gen. Hosp., 995 F. Supp. 2d 917 (N.D. Iowa 2014) ............ 26

Statutes and Regulations

Act of Dec. 26, 2013, Pub. L. No. 113–72, sec. 1 ................................................... 9

Act of Oct. 16, 2008, Pub. L. No. 110–433, sec. 1(a), 122 Stat. 4971..................... 9

Consolidated Appropriations Act, 2004, Pub. L. No. 108–199, 

 sec. 639, 118 Stat. 3 (2004)................................................................................ 9

Treasury Postal Serv. and General Government Appropriations Act, 

 2000, Pub. L. No. 106-58, § 640, 113 Stat. 430 (1999).................................... 5

Treasury and General Government Appropriations Act, 2002, 

 Pub. L. No. 107–67, sec. 642, 115 Stat. 514 (2001).......................................... 9

Transportation, Treasury, Housing and Urban Development, 

 The Judiciary, The District of Columbia, and Independent 

 Agencies Appropriations Act, 2006, Pub. L. No. 109–115, 

 sec. 721, 119 Stat. 2396 (2005)...................................................................... 5, 9

5 U.S.C. § 552b...................................................................................................... 35

5 U.S.C. § 552b(g)........................................................................................... 19, 31

5 U.S.C. § 553(b)(B).............................................................................. 2, 11, 37, 38

5 U.S.C. § 553(b)(c)............................................................................................... 37

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5 U.S.C. § 553(d)........................................................................... 12, 18, 37, 38, 41

5 U.S.C. § 553(d)(3)................................................................................................. 2

5 U.S.C. § 706...................................................................................... 17, 23, 27, 29

5 U.S.C. § 706(2)(A).............................................................................................. 23

5 U.S.C. § 706(2)(C).............................................................................................. 23

5 U.S.C. § 808(2)................................................................................................... 12

28 U.S.C. § 1291...................................................................................................... 1

28 U.S.C. § 2342.................................................................................................... 29

52 U.S.C. § 30101(4)-(6).......................................................................................... 3

52 U.S.C. § 30102(a)-(d) ......................................................................................... 3

52 U.S.C. § 30104(a) ............................................................................. 3, 5, 7, 8, 15

52 U.S.C. § 30104(a)(6)(A)............................................................................... 3, 12

52 U.S.C. § 30106(b)(1) .......................................................................................... 4

52 U.S.C. § 30106(e) ............................................................................................. 31

52 U.S.C. § 30107(a) ............................................................................................... 4

52 U.S.C. § 30109.................................................................................................... 4

52 U.S.C. § 30109(a) ............................................................................................... 4

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

52 U.S.C. § 30109(a)(4)(C) ..................................................................................... 5

52 U.S.C. § 30109(a)(4)(C)(i)(II)............................................................................ 6

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52 U.S.C. § 30109(a)(4)(C)(iii) ..................................................... 1, 6, 8, 16, 18, 23

52 U.S.C. § 30109(a)(4)(C)(v)............................................................................... 10

52 U.S.C. § 30109(a)(6)........................................................................................... 5

11 C.F.R. § 2.2(d)(1).............................................................................................. 32

11 C.F.R. § 2.2(d)(2).......................................................................................... 2, 32

11 C.F.R. § 2.3(a)................................................................................................... 32

11 C.F.R. § 2.3(b) ................................................................................................ 32

11 C.F.R. § 100.19 ................................................................................................. 48

11 C.F.R. § 104.5(f)............................................................................................... 12

11 C.F.R. § 104.14(d) .............................................................................................. 3

11 C.F.R. §§ 111.3-111.24....................................................................................... 4

11 C.F.R. § 111.32 ................................................................................................... 7

11 C.F.R. §§ 111.33-111.34..................................................................................... 7

11 C.F.R. § 111.35(b) ............................................................................ 2, 14, 15, 22

11 C.F.R. § 111.35(b)(1)........................................................................................ 16

11 C.F.R. § 111.35(b)(1)-(3)........................................................................ 7, 47, 49

11 C.F.R. § 111.35(e)............................................................................................... 8

11 C.F.R. § 111.35(f)............................................................................................... 8

11 C.F.R. § 111.36(a)............................................................................................... 8

11 C.F.R. § 111.36(e)............................................................................................... 8

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11 C.F.R. § 111.36(f)............................................................................................... 8

11 C.F.R. § 111.37 ................................................................................................... 8

11 C.F.R. § 111.37(d) .............................................................................................. 8

11 C.F.R. § 111.38 ................................................................................................... 9

11 C.F.R. § 111.41 ................................................................................................. 10

11 C.F.R. § 111.43(a)-(c)..................................................................................... 6, 7

11 C.F.R. § 111.44 ....................................................................................... 6, 13, 14

11 C.F.R. § 111.44(a)(1).......................................................................................... 7

Administrative Fines, 65 Fed. Reg. 31787 (May 19, 2000)........................ 6. 40, 46

Administrative Fines, 67 Fed. Reg. 20461 (Apr. 25, 2002) .................................. 12

Administrative Fines, 68 Fed. Reg. 12572 (Mar. 17, 2003).................................. 12

Best Efforts in Administrative Fines Challenges, 

71 Fed. Reg. 71093 (Dec. 8, 2006)...................................................................... 12

Best Efforts in Administrative Fines Challenges, 

72 Fed. Reg. 14662 (Mar. 29, 2007)............................................................. 12, 48

Extension to Administrative Fines, 

66 Fed. Reg. 59680 (Nov. 30, 2001)................................................................... 10

Extension of Administrative Fines Program, 

69 Fed. Reg. 6525 (Feb. 11, 2004)...................................................................... 10

Extension of Administrative Fines Program, 

73 Fed. Reg. 72687 (Dec. 1, 2008)...................................................................... 10

Extension of Administrative Fines Program, 

79 Fed. Reg. 3302 (Jan. 21, 2014)................................................................ passim

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Inflation Adjustments for Civil Monetary Penalties, 

70 Fed. Reg. 34633 (June 15, 2005).................................................................... 40

Notice 2005-30, Extension of Administrative Fines Program, 

70 Fed. Reg. 75717 (Dec. 21, 2005).................................................................... 10

Miscellaneous

65 Cong. Rec. H5622 (daily ed. July 15, 1999) (statement of 

Rep. Maloney)................................................................................................. 6, 34

Rule of Appellate Procedure. 4(a)(1)(B) ................................................................. 1

Federal Rule of Appellate Procedure 17................................................................ 29

H.R. Rep. No. 106-295 (1999)................................................................................. 6

H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946)............................................ 42

In the Matter of Implementation of Section 1003(B) of the Department 

 of Defense Appropriations Act, 2010, 

24 FCC Rcd. 14487, 2009 WL 5125386 (Dec. 28, 2009)................................. 49

Senate Report, No. 752, 79th Cong. 1st Sess. (1945)...................................... 39, 42

S. Rep. No. 94-354 (1975)..................................................................................... 36

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COUNTERSTATEMENT REGARDING JURISDICTION 

(A) The district court had jurisdiction to review the Federal Election 

Commission’s final determination pursuant to 52 U.S.C. § 30109(a)(4)(C)(iii). 

(B) The district court granted the Commission’s motion to dismiss and 

entered judgment for the Commission with prejudice (J.A. 138, 165).

(C) Appellants filed a timely notice of appeal to this court on January 20, 

2017 (J.A. 167-168). See Fed. R. App. P. 4(a)(1)(B).

(D) The present appeal is taken from a final judgment that disposes of all 

of appellants’ claims before the district court. This Court has jurisdiction pursuant 

to 28 U.S.C. § 1291.

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COUNTERSTATEMENT OF ISSUES PRESENTED

1. Whether the district court correctly decided the FEC’s motion to 

dismiss by considering the portions of the administrative and public record relied 

on by appellants in their complaint.

Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100 (8th Cir. 2000).

2. Whether the district court correctly concluded that the Commission 

properly exercised its legal authority in extending the expiration date of its 

administrative fine regulations to implement Congress’s extension of the expiration 

date of the corresponding statutory provision.

5 U.S.C. § 553(b)(B), (d)(3); 11 C.F.R. §§ 2.2(d)(2); United States v. 

Brewer, 766 F.3d 884 (8th Cir. 2014); United States v. Gavrilovic, 551 F.2d 1099 

(8th Cir. 1977); Combat Veterans for Cong. Political Action Comm. v. FEC, 795 

F.3d 151 (D.C. Cir. 2015); Commc’ns Sys., Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 

1978).

3. Whether the Commission reasonably determined that appellants failed 

to bring a proper challenge to the Commission’s administrative fine determination.

11 C.F.R. §§ 111.35(b); South Dakota v. U.S. Dep’t of Interior, 423 F.3d 

790 (8th Cir. 2005).

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COUNTERSTATEMENT OF THE CASE

I. STATUTORY AND REGULATORY BACKGROUND 

A. Reporting Requirements for Political Committees 

The Federal Election Campaign Act (“FECA” or the “Act”) requires every 

“political committee” — including candidate campaigns and other political 

organizations, see 52 U.S.C. § 30101(4)-(6) — to designate a treasurer to maintain 

the committee’s financial records and file periodic reports detailing, among other 

things, the committee’s receipts and disbursements. See 52 U.S.C. §§ 30102(a)-

(d), 30104(a)-(b). The reports must be filed in compliance with the schedule 

established in FECA. 11 C.F.R. § 104.14(d). 

Most relevant here, principal campaign committees must report any 

contribution of $1,000 or more received by the committee after the 20th day, but 

more than 48 hours before, any election. Such notifications, commonly referred to 

as “48-hour notices,” must “be made within 48 hours after the receipt of such 

contribution.” 52 U.S.C. § 30104(a)(6)(A). 

As the Supreme Court has held, FECA’s reporting requirements further 

“substantial governmental interests,” including, inter alia, “provid[ing] the 

electorate with information as to where political campaign money comes from . . . 

in order to aid the voters in evaluating those who seek federal office.” Buckley v. 

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Valeo, 424 U.S. 1, 66-68 (1976) (per curiam) (citation and internal quotation marks 

omitted).

B. FECA’s Enforcement Procedures

The FEC is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement 

of the Act. See generally 52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. It is 

comprised of six Commissioners, one of whom is appellee Stephen T. Walther, 

who currently serves as Chairman of the Commission and is sued in that capacity.

1. General Provisions

FECA establishes a detailed, multi-step administrative process for 

Commission review of alleged violations of the Act. See 52 U.S.C. § 30109(a); 

see also 11 C.F.R. §§ 111.3-111.24 (enforcement process regulations). The 

process involves, inter alia, an initial determination, by at least four 

Commissioners, of “reason to believe” a violation has occurred, a possible 

investigation, and a subsequent finding of “probable cause to believe” a violation 

has occurred, also by a vote of at least four Commissioners. 52 U.S.C. 

§ 30109(a)(1)-(4). If at least four Commissioners find such probable cause, FECA 

then requires the Commission to attempt to informally resolve the matter through 

conciliation efforts with the respondent involved. Id. § 30109(a)(4)(A)(i). 

If the Commission is unable to resolve the matter through voluntary conciliation, 

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the Commission may file a de novo civil suit to enforce the Act in federal district 

court. Id. § 30109(a)(6). 

2. FECA’s Administrative Fines Program

For more than 20 years, the Commission was required to employ this mulitstep process for all violations of the Act — even the most straightforward 

violations in which committees simply failed to file their reports on time (or at all). 

In 1999, however, Congress amended FECA to add a streamlined enforcement 

system for violations of the periodic filing requirements. See Treasury Postal Serv. 

and General Government Appropriations Act, 2000, Pub. L. No. 106-58, § 640, 

113 Stat. 430, 476-477 (1999) (codified at 52 U.S.C. § 30109(a)(4)(C)). 

Specifically, Congress authorized the Commission to directly assess civil money 

penalties for violations of 52 U.S.C. § 30104(a), which establishes, inter alia, the 

deadlines for political committees’ disclosure reports. 

Pursuant to this authority, after the Commission finds reason to believe a 

committee and its treasurer have failed to file a report (or filed a report late), the 

Commission may directly impose a civil money penalty in an amount determined 

under a penalty schedule established and published by the Commission which 

accounts for the amount of the violation involved, the existence of previous 

violations by the person, and other factors the Commission considers appropriate.

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52 U.S.C. § 30109(a)(4)(C)(i)(II). By eliminating steps such as the probable-cause 

determination and conciliation period that apply to other FEC enforcement matters, 

this “administrative fines” program “create[d] a simplified procedure for the FEC 

to administratively handle reporting violations.” H.R. Rep. No. 106-295, at 11 

(1999). That procedure, “much like traffic tickets, . . . let[s] the agency deal with 

minor violations of the law in an expeditious manner.” 65 Cong. Rec. H5622 

(daily ed. July 15, 1999) (statement of Rep. Maloney); see Combat Veterans for 

Cong. Political Action Comm. v. FEC, 795 F.3d 151, 154 (D.C. Cir. 2015) 

(“Combat Vets”) (“With those amendments, Congress sought to make it easier for 

the Commission to enforce [FECA’s] deadlines.”), aff’d, 795 F.3d 151 (D.C. Cir. 

2015). 

A respondent who objects to the Commission’s imposition of an 

administrative fine may seek judicial review of the Commission’s determination in 

federal district court. 52 U.S.C. § 30109(a)(4)(C)(iii).

3. The Commission’s Administrative Fines Regulations

In 2000, the Commission promulgated regulations establishing the 

procedures that apply in administrative fines matters and the schedules of penalties 

authorized by 52 U.S.C. § 30109(a)(4)(C)(i)(II). See FEC, Administrative Fines, 

65 Fed. Reg. 31787 (May 19, 2000) (“May 2000 Administrative Fines Rule”); 11 

C.F.R. §§ 111.43(a)-(c), 111.44. The civil penalty schedules take into account 

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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. See 11 C.F.R. § 111.43(a)-(c). 

One of the penalty formulas established was specifically for 48-hour notices, 

11 C.F.R. § 111.44(a)(1), pursuant to which the civil penalty at the time of 

appellants’ violations was $110 plus ten percent of the amount of the 

contribution(s) not timely reported. 

When the Commission determines that it has “reason to believe” that a 

respondent has violated 52 U.S.C. § 30104(a), the Commission notifies the 

respondent of the Commission’s finding, including the proposed civil money 

penalty. 11 C.F.R. § 111.32. Upon receipt of this notification, the respondent may 

either pay the penalty, id. §§ 111.33-111.34, or challenge the finding and/or the 

penalty by filing a written response within 40 days of the date of the Commission’s 

finding. 11 C.F.R. § 111.35(a), (e). The response must assert at least one of three 

permissible grounds for such a challenge: (1) factual errors in the Commission’s 

finding (such as if the report was, in fact, timely filed); (2) inaccurate calculation 

of the penalty; or (3) a showing that the respondent used “best efforts” to file in a 

timely manner but was prevented from doing so by “reasonably unforeseen 

circumstances . . . and the respondent filed [the report] no later than 24 hours after”

such circumstances ended. 11 C.F.R. § 111.35(b)(1)-(3); see, e.g., Combat Vets, 

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983 F. Supp. 2d at 6, 16-18 (listing the three permissible bases for challenging an 

administrative fine); Kuhn for Cong. v. FEC, No. 2:13-CV-3337-PMD, 2014 WL 

7146910, at *6 (D.S.C. Dec. 15, 2014) (same); Lovely v. FEC, 307 F. Supp. 2d 

294, 300 (D. Mass. 2004) (same); Cox for U.S. Senate Comm., Inc. v. FEC, No. 03 

C 3715, 2004 WL 783435, at *5 (N.D. Ill. Jan. 22, 2004) (same). 

Timely filed challenges to the Commission’s reason-to-believe finding are 

reviewed by a Commission “Reviewing Officer,” who submits a written 

recommendation to the Commission, id. § 111.36(a), (e). A copy of the 

recommendation is also provided to the respondent, id. § 111.36(f), who may file a 

written response within ten days, but generally may not raise new arguments 

beyond those in the original written response. Id. § 111.35(f).

After receiving the Reviewing Officer’s recommendation and any timely 

response from the respondents, the Commission makes a final determination by an 

affirmative vote of at least four Commissioners as to whether the respondent 

violated 52 U.S.C. § 30104(a), and, if so, the amount of the civil penalty. 

11 C.F.R. § 111.37. The reasons provided by the Reviewing Officer for her 

recommendation serve as the reasons for the Commission’s action, unless 

otherwise indicated by the Commission. Id. § 111.37(d).

The respondent then has 30 days to petition for judicial review in federal 

district court in accordance with 52 U.S.C. § 30109(a)(4)(C)(iii), but any such 

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judicial review is limited to the issues and facts raised before the Commission 

during the administrative proceeding. 11 C.F.R. § 111.38. 

4. Modifications to the Commission’s Administrative Fines 

 Regulations

The 1999 FECA Amendments establishing the Act’s Administrative Fines 

Program initially applied to violations occurring between January 1, 2000 and 

December 31, 2001. Extension of Administrative Fines Program, 79 Fed. Reg. 

3302, 3302 (Jan. 21, 2014) (“2014 Extension of Administrative Fines 

Regulations”). Congress subsequently extended the FEC’s statutory authority for 

that program several times, including, most recently, in a December 2013 

amendment extending it through December 31, 2018. J.A. 143; see Act of 

Dec. 26, 2013, Pub. L. No. 113–72, sec. 1.1

The Commission has updated its implementing regulations each time 

Congress has extended the expiration date of FECA’s Administrative Fines 

 1 See also Act of Oct. 16, 2008, Pub. L. No. 110–433, sec. 1(a), 122 Stat. 4971 

(extending authorization through Dec. 31, 2013); Transportation, Treasury, 

Housing and Urban Development, The Judiciary, The District of Columbia, and 

Independent Agencies Appropriations Act, 2006, Pub. L. No. 109–115, sec. 721, 

119 Stat. 2396, 2493–94 (2005) (extending authorization through Dec, 31, 2008); 

Consolidated Appropriations Act, 2004, Pub. L. No. 108–199, sec. 639, 118 Stat. 

3, 359 (2004) (extending authorization through Dec. 31, 2005); Treasury and 

General Government Appropriations Act, 2002, Pub. L. No. 107–67, sec. 642, 115 

Stat. 514, 555 (2001) (extending authorization through Dec. 31, 2003).

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Program to reflect the statutory extension. (J.A. 143-44.)2 When the Commission 

implemented Congress’s most recent extension of the program in January 2014, 

rather than specifying the latest statutory expiration date, the revised regulation 

simply provided that the Commission’s regulations apply to reporting periods that 

“end on or before the date specified in [52 U.S.C. 30109(a)(4)(C)(v)].” 2014 

Extension of Administrative Fines Regulations, 79 Fed. Reg. at 3302. This nonsubstantive modification, the Commission explained, would implement Congress’s 

latest extension while obviating the need to making conforming amendments to the 

Commission’s regulations each time Congress extends the statute in the future. 

2014 Extension of Administrative Fines Regulations, 79 Fed. Reg. at 3302. This 

minor change, along with the Commission’s deletion of an administrative 

provision, 11 C.F.R. § 111.41, requiring that fines be paid by check or money 

order, “were the only changes made to the implementing regulations in the 2014 

Regulatory Extension,” as the district court recognized. (J.A. 144.)

Because Congress did not enact the most recent extension until late 

December 2013, there was a short gap between the end date of the 2008 Extension 

 2 See Extension to Administrative Fines, 66 Fed. Reg. 59680 (Nov. 30, 2001) 

(extending administrative fines regulations to December 31, 2003); Extension of 

Administrative Fines Program, 69 Fed. Reg. 6525 (Feb. 11, 2004) (extending to 

December 31, 2005); Notice 2005-30, Extension of Administrative Fines Program, 

70 Fed. Reg. 75717 (Dec. 21, 2005) (extending to December 31, 2008); Extension 

of Administrative Fines Program, 73 Fed. Reg. 72687 (Dec. 1, 2008) (extending to 

December 31, 2013).

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of Administrative Fines Regulations and the effective date of the 2014 rule. 2014 

Extension of Administrative Fines Regulations, 79 Fed. Reg. at 3302. The 

Commission thus clarified that the FEC’s regular enforcement procedures, rather 

than the Administrative Fines Program, would apply to violations occurring during 

the gap. (J.A. 144.)

The Commission further explained that it was implementing the statutory 

extension of FECA’s Administrative Fines Program “without advance notice or an 

opportunity for comment because it falls under the ‘good cause’ exemption of the 

Administrative Procedure Act,” which “allows agencies to dispense with notice 

and comment when ‘impracticable, unnecessary, or contrary to the public 

interest.’” 2014 Extension of Administrative Fines Regulations, 79 Fed. Reg. at 

3302 (quoting 5 U.S.C. § 553(b)(B)). The Commission had determined that 

“notice and comment [we]re unnecessary,” it explained, because the “final rule 

merely extend[ed] the applicability of the existing [Administrative Fines Program] 

and delete[ed] one administrative provision; the final rule ma[de] no substantive 

changes” to the FEC’s administrative fines regulations. Id. The Commission 

further explained that the 2014 Extension of Administrative Fines Regulations also 

“falls within the ‘good cause’ exception to the delayed effective date provisions of 

the Administrative Procedure Act and the Congressional Review Act,” and that the 

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final rule “[a]ccordingly, [would be] effective upon publication in the Federal 

Register.” Id. (citing 5 U.S.C. §§ 553(d), 808(2)).3

II. THE ADMINISTRATIVE FINE AT ISSUE IN THIS APPEAL

Appellant Bart McLeay for U.S. Senate (“McLeay Committee”) is the 

principal campaign committee of Bartholomew L. McLeay, who was a candidate 

in the United States Senate primary election in Nebraska on May 13, 2014. (J.A. 1

(Compl. ¶ 2).) Appellant Robert C. McChesney is the Treasurer of the McLeay 

Committee. (Id. (Compl. ¶¶ 1, 2).)

In connection with that election, appellants were required to file 48-hour 

notices for contributions and loans of $1,000 or more received between April 24 

and May 10, 2014. (J.A. 145 (citing 52 U.S.C. § 30104(a)(6)(A)); 11 C.F.R. 

§ 104.5(f)).) The Commission concluded that appellants failed to do so for 

fourteen contributions received between April 24, and May 9, 2014, totaling 

$112,425.06. (J.A. 11, 25, 29; see J.A. 145 (citing Compl. ¶ 29).) 

 3 In contrast to the Commission’s actions implementing the extended end date 

of FECA’s Administrative Fines Program, the Commission’s substantive revisions 

to its administrative fines regulations, in March 2003 and March 2007, were made 

pursuant to the Administrative Procedure Act’s notice and comment procedures. 

See Administrative Fines, 67 Fed. Reg. 20461 (Apr. 25, 2002) (notice of proposed 

rulemaking); Administrative Fines, 68 Fed. Reg. 12572 (Mar. 17, 2003) (final 

rules); Best Efforts in Administrative Fines Challenges, 71 Fed. Reg. 71093 (Dec. 

8, 2006) (notice of proposed rulemaking); Best Efforts in Administrative Fines 

Challenges, 72 Fed. Reg. 14662 (Mar. 29, 2007) (final rule). 

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On June 26, 2015, the Commission therefore found reason to believe that 

appellants violated FECA by failing to file 48-hour notices for those fourteen 

contributions. (J.A. 145-146 (citing J.A. 11 (Compl. ¶ 29), 25-26 (notification 

letter)).) Also on that date, the Commission made a preliminary determination that 

a civil penalty of $12,122 should be assessed for such violations, based on the 

penalty formula set forth at 11 C.F.R. § 111.44. (J.A. 145 (citing J.A. 25 

(notification letter)).) The matter was designated as Administrative Fine 3011 and 

the Commission notified appellants on June 29, 2015. (J.A. 145 (citing J.A. 11 

(Compl. ¶ 29), 25 (notification letter)).)4

 

On July 31, 2015, the Commission received appellants’ responses, in which 

they principally contended that the proposed civil penalty was not based on an 

authorized schedule of penalties lawfully established by the FEC. (J.A. 146.) 

Appellants also argued that the reporting requirements for 48-hour notices did not 

apply to the candidate loans at issue, and that an alternative method of calculating 

the proposed civil penalty would have been preferable. (J.A. 30-38.)

 4 At that time, the Commission voted on reason to believe determinations in 

administrative fine cases using a “no-objection” procedure. Combat Vets, 

795 F.3d at 154 (explaining procedure). After that practice was called into 

question because FECA requires that such determinations occur by an 

“affirmative” vote of four Commissioners, id. at 155-56, the Commission ratified 

the initial determination and preliminary civil penalty in the underlying matter at 

issue here on February 4, 2016. (J.A. 14 (Compl. ¶ 36 n.7), 124 at n.1 

(Memorandum to the Commission (Mar. 8, 2016)).) The Commission used an 

alternative tally-vote method with marked ballots. Combat Vets, 795 F.3d at 155 

(describing tally voting); see infra pp. 31-36. 

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The Commission’s Reviewing Officer, Rhiannon Magruder, reviewed 

appellants’ responses and made her recommendation to the Commission on 

September 29, 2015. (J.A. 146.) Ms. Magruder explained that appellants had 

failed to comply with eight separate 48-hour notice deadlines and that the 

candidate’s unreported loans were appropriately included in calculating appellants’ 

civil penalty. (Id.; see id. at 40-44 (Reviewing Officer Recommendation (Sept. 29, 

2015)).) She concluded that the Commission’s preliminary civil penalty 

calculation of $12,122 was correct, and that appellants had failed to successfully 

challenge the Commission’s reason-to-believe determination and preliminary civil 

penalty calculation on the basis of any of the permissible grounds identified in the 

Commission’s regulations, 11 C.F.R. § 111.35(b). (Id. at 146.) The Reviewing 

Officer accordingly recommended a final determination of plaintiffs’ reporting 

violation and assessment of that civil penalty amount. (Id. (citing J.A. 44

(Reviewing Officer Recommendation)).) 

On October 9, 2015, appellants filed a response and reiterated, inter alia, 

their view that the schedule of penalties at 11 C.F.R. § 111.44 had not been 

“lawfully established by the Commission.” (J.A. 147.) 

On March 21, 2016, the Commission adopted the Reviewing Officer’s Final 

Determination Recommendation, concluding that plaintiffs had failed to 

demonstrate that a factual error had been made in the reason-to-believe finding, 

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that the penalty was miscalculated, or that they used best efforts to file on time. 

J.A. 147; see 11 C.F.R. § 111.35(b). The Commission also concluded, based upon 

guidance from its Office of General Counsel incorporated by reference in the Final 

Determination Recommendation, that the schedule of penalties was lawfully 

established. (J.A. 147.) The Commission thus made a final determination that 

plaintiffs violated 52 U.S.C. § 30104(a) and assessed a $12,122 civil penalty. Id.

III. PROCEEDINGS IN THE DISTRICT COURT

On April 15, 2016, appellants filed a complaint against the Commission, 

FEC Commissioner Matthew S. Petersen in his then-capacity as chairman of the 

Commission, and the United States, in which they petitioned the district court to 

set aside or modify the FEC’s administrative determination and fine. (J.A. 1-20.)

5

 

The Commission moved to dismiss the complaint on June 20, 2016, and the United 

States moved to dismiss the allegations against it on the same date. Appellants 

moved to voluntarily dismiss the United States “without prejudice,” but opposed 

the motion filed by the Commission. (Id. at 138.)

 5 Appellants’ petition for review named then-Chairman Matthew S. Petersen 

as a defendant in his official capacity as chairman of the Commission. (J.A. 1, 2.) 

Since that time, the Commission elected a new chairperson and on March 14, this 

Court granted appellees’ motion to substitute current FEC Chairman Steven T. 

Walther as the FEC Chairperson named in his official capacity as a party in this 

litigation. (Order (Doc. # 4512272).)

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IV. THE DISTRICT COURT’S REJECTION OF APPELLANTS’ 

CHALLENGE TO THEIR ADMINISTRATIVE FINE

On December 22, 2016, the district court issued a memorandum opinion and 

order granting the motion to dismiss filed by the FEC and Commissioner Petersen 

and dismissing each of appellants’ claims against them with prejudice, and 

approving appellants’ notice of dismissal of the United States. (J.A. 138, 163-

164.)

First, the court rejected appellants’ claims for relief under the Declaratory 

Judgment Act and the Administrative Procedure Act (“APA”). (J.A. 150-51.) The 

court held that neither of those statutes provides it with jurisdiction over this case, 

because “FECA provides its own framework for judicial review of agency action,” 

and appellants failed to identify “any reason that review under FECA presents an 

inadequate remedy.” (Id. at 151 (citing 52 U.S.C. § 30109(a)(4)(C)(iii)).) 

Appellants do not appeal those aspects of the decision below. (See Appellants’ Br. 

at 2.)

The court next addressed appellants’ claim for judicial review pursuant to 

FECA’s judicial review provision, 52 U.S.C. § 30109(a)(4)(C)(iii). Initially, the 

court recognized that FEC regulations specify three grounds upon which an 

administrative fine may be challenged, and acknowledged that appellants have “not 

directly pursue[d] those grounds in this case.” (J.A. 153 (citing 11 C.F.R. 

§ 111.35(b)(1)).) The court nevertheless found that appellants’ “response to the 

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Commission can reasonably be read to assert an objection on the basis of factual 

error,” and concluded that the permissible grounds for challenging an 

administrative fine set forth in the Commission’s regulations are not exclusive. 

(Id.) The court accordingly concluded that plaintiffs could pursue their claim for 

judicial review under section 30109(a)(4)(C)(iii).

In conducting that review, the court first rejected appellants’ argument that 

the district court lacked a sufficient record upon which to evaluate appellants’ 

claims. (J.A. 153-54.) The court observed that consistent with this Circuit’s 

precedent, the Commission had supported its motion with portions of the 

administrative record, and also directed the court to other publicly available 

documents that were expressly referenced in appellants’ complaint. (Id. at 154

(citing Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000)).) 

And it rejected appellants’ “incomplete” reliance on an out-of-Circuit decision 

construing the APA’s judicial review provision, which similarly recognizes the 

propriety of reviewing agency action based on “‘the whole record or those parts of 

it cited by a party’.” (Id. (quoting 5 U.S.C. § 706; emphasis added by court).) The 

court thus concluded that the record before it was sufficient to consider the 

Commission’s motion. (Id.)

The court then proceeded to reject appellants’ “principal argument,” namely, 

that the FEC failed to establish the applicable penalty schedule in accordance with 

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FEC regulations and the APA. (J.A. 155.) It explained that although the APA 

“[g]enerally” requires an agency to provide advance notice of a proposed rule, a 

hearing or receipt and consideration of public comments, and publication of the 

rule for a period before it becomes effective, agencies may waive these 

requirements for “good cause.” (Id.) The court found that the Commission had 

demonstrated such “good cause” here. In particular, the court agreed with the 

Commission that pre-adoption publication and notice and comment for the 2014 

Extension of Administrative Fines Regulations were “unnecessary” here, where the 

rule in question “ma[de] no substantive changes to the [Administrative Fines 

Program],” but “‘merely extend[ed] the applicability of the existing 

[Administrative Fines Program] and delet[ed] one administrative provision.’” 

(J.A. 157-58 (quoting 2014 Extension of Administrative Fines Regulation, 79 Fed. 

Reg. at 3302).) It further agreed with the FEC that notice and comment “in these 

narrow circumstances” would have been contrary to the public interest, because 

they would have “further delay[ed] [the FEC] in implementing the Congressionally 

approved extension” of FECA’s Administrative Fines Program, in 

“contravene[tion of] the purposes of th[at] . . . Program.” (Id. at 158-60.) 

The court separately concluded that the same considerations supported the 

Commission’s determination that it had good cause “to dispense with the postadoption notice requirement under [5 U.S.C.] § 553(d).” (J.A. 160-61.)

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Lastly, the district court considered appellants’ argument that the 2014 

Extension of Administrative Fines Regulation failed to comply with Commission 

procedures and the Sunshine Act, 5 U.S.C. § 552b(g), and it rejected that argument 

as well. (J.A. 161-63.) Having reviewed the record and appellants’ arguments, the 

court found “no evidence that the Commission violated [its] tally vote procedure or 

the Sunshine Act that would invalidate the 2014 Regulatory Extension.” (Id. at 

162.) And the court clarified further that “[e]ven if the Commission’s voting 

procedures did not expressly follow the requirements of the Sunshine Act, the 

remedy for such violations is increased transparency, not invalidation of agency 

action.” (Id. at 162-63 (collecting cases); see id. (explaining that “[a]lthough an 

agency action may be set aside when it is intentional, prejudicial to the party 

making the claim, and ‘of a serious nature,’ Plaintiffs have not alleged any facts 

suggesting that the FEC’s alleged Sunshine Act violations meet those criteria”) 

(citation omitted).)

SUMMARY OF THE ARGUMENT

The district court correctly granted the FEC’s motion to dismiss appellants’ 

administrative review petition and its decision should be affirmed.

Appellants purport to challenge an administrative fine that the Commission 

imposed for their failure to timely disclose $112,425 in campaign contributions. 

But appellants have never disputed their failure to timely report such contributions, 

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or that such failures violated FECA’s reporting requirements. Instead, they have 

asserted a meritless challenge to the validity of the penalty schedule upon which 

the Commission relied in imposing their fine. 

In granting the Commission’s motion to dismiss appellants’ petition for 

judicial review, the district court correctly rejected all of appellants’ arguments in 

support of that challenge. As a preliminary matter, the court correctly concluded 

that the Commission had acted in accordance with this Court’s precedent when it 

supported its motion to dismiss with only those portions of the public and 

administrative record referenced in appellants’ complaint. And the lower court

was thus right to reject appellants’ erroneous insistence that the Commission was 

required to submit the full administrative record for the district court’s review at 

the motion-to-dismiss stage.

None of the procedural deficiencies appellants allege about the issuance of 

the penalty schedule provide a basis for finding the regulatory extension invalid, or 

otherwise invalidating their administrative fine. As the district court recognized, 

the regulatory extension was a time-sensitive, routine implementation of an 

expiration date to conform the regulations to the expiration date of the statutory 

program the rules were created to administer. The district court correctly 

concluded that the Commission’s use of a tally vote procedure to promulgate the 

regulatory extension was proper. The Commission acted consistently with its 

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Sunshine Act regulations by handling the matter via notational voting rather than at 

a public meeting. Moreover, not only have appellants failed to allege any actions 

by the FEC that were intentional and prejudicial to them such that there is cause to 

overturn their administrative fines, there is no connection whatsoever between the 

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

reporting violations, which occurred months after the FEC’s publication of the 

extension. 

The court was also correct in concluding in these circumstances that the 

Commission had the requisite “good cause” to exempt the regulatory extension 

from the Administrative Procedure Act’s general pre-adoption notice and comment 

requirements, and post-adoption requirement to publish the rule for 30 days before 

it takes effect. The APA and cases interpreting it make clear that pre-adoption 

notice and comment are “unnecessary” and would not further the public interest 

under such circumstances. Permitting delay in implementation of the reauthorized 

schedule of penalties would have subjected more violations to the Commission’s 

full-blown enforcement procedures, thereby frustrating the Congressional purpose 

of streamlining the processing of violations of certain reporting provisions. These 

same considerations also amply support the determination that the Commission 

had good cause waive the APA’s post-adoption 30-day grace period and make the 

regulatory extension effective immediately upon publication. 

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22

The findings of good cause in these circumstances are clear, and appellants 

do not seriously dispute them in this Court. Instead, appellants contend that the 

district court failed to address a purported requirement that the Commission 

“establish” its schedule of penalties in some independent process that is separate

from its publication of the schedule. Appellants did not sufficiently articulate any 

distinct challenge to that purported requirement separate from their Sunshine Act 

arguments, and from the APA arguments they made below, and the district court 

thus had no cause to conduct any additional analysis. In any event, the statute 

authorizing the extension of the administrative fines penalties imposes no 

requirement of separation between establishment and publication procedures.

Finally, the FEC’s administrative fine determination should be affirmed for 

the independent reason that appellants failed to challenge their fine on the basis of 

any of the limited grounds permitted by FEC regulations, 11 C.F.R. § 111.35(b). 

That reasonable determination by the Commission, which was based on the 

agency’s interpretation of its own regulations, is entitled to substantial deference. 

The district court’s dismissal decision should be affirmed.

ARGUMENT

I. STANDARD OF REVIEW

This appeal was taken from an order granting the Commission’s motion to 

dismiss appellants’ action to modify or set aside the FEC’s administrative fine 

determination. This Court’s review of a decision granting a motion to dismiss for 

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23

failure to state a claim is de novo. H & Q Props., Inc. v. Doll, 793 F.3d 852, 855 

(8th Cir. 2015) (citing Grand River Enters. Six Nations, Ltd. v. Beebe

574 F.3d 929, 935 (8th Cir. 2009)). 

In reviewing agency action, the “court sits as an appellate tribunal” and the 

“entire case on review is a question of law, and only a question of law.” Marshall 

Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1225, 1226 (D.C. Cir. 1993); 

see id. at 1226 (explaining that “because a court can fully resolve any purely legal 

question on a motion to dismiss, there is no inherent barrier to reaching the merits 

at the 12(b)(6) stage”).

In reviewing the district court’s decision under 52 U.S.C. 

§ 30109(a)(4)(C)(iii) not to modify or set aside the FEC’s administrative fine 

determination, this Court applies the standard of review for final agency 

adjudications in the APA, 5 U.S.C. § 706, which is “‘the identical standard of 

review’” employed by the district court. Brown v. United States Dep’t of Interior, 

679 F.2d 747, 749 (8th Cir. 1982) (quoting First Nat’l Bank of Fayetteville v. 

Smith, 508 F.2d 1371, 1374 (8th Cir. 1974)). Under that standard, a court may set 

aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law” or “in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C). 

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This Court has explained that a decision is arbitrary and capricious where an 

agency has improperly relied on factors Congress did not intend it to consider, 

entirely failed to consider an important aspect of the problem, or has offered an 

explanation that is “‘implausible’” or otherwise contrary to the evidence before the 

agency. Bettor Racing, Inc. v. Nat’l Indian Gaming Comm’n, 812 F.3d 648, 651 

(8th Cir. 2016) (quoting Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983)). The Court has further explained that it “will not 

substitute its own judgment so long as the agency has examine[d] the relevant data 

and articulate[d] a satisfactory explanation for its action including a rational 

connection between the facts found and the choice made.” Id. (citation and 

internal quotation marks omitted) If an agency’s action is “supportable on any 

rational basis,” it must be affirmed. Atchison, T. & S.F. Ry. Co. v. Witchita Bd. of 

Trade, 412 U.S. 800, 807 (1973); Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 

759, 763 (8th Cir. 2004); see Global NAPs, Inc. v. FCC, 247 F.3d 252, 257 (D.C. 

Cir. 2001) (explaining that the arbitrary and capricious standard of review is highly 

“deferential” and “presume[s] the validity of agency action” (internal quotation 

marks omitted)).

Moreover, it is well settled that courts must accord deference, when an 

agency interprets “a statute which it administers.” Chevron, U.S.A., Inc. v. Nat.l 

Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see FEC v. Democratic 

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25

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (explaining that the FEC “is 

precisely the type of agency to which deference should presumptively be 

afforded”). And still further deference is required when an agency interprets its 

own regulations. South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 799 (8th 

Cir. 2005). 

II. THE DISTRICT COURT CORRECTLY REJECTED APPELLANTS’ 

CHALLENGE TO THE COMMISSION’S ADMINISTRATIVE FINE 

DETERMINATION

A. The District Court Properly Considered the Portions of the 

Administrative Record Relied Upon by Appellants

In deciding this appeal, the Court “‘must render an independent decision on 

the basis of the same administrative record as that before the district court.’” 

Brown, 679 F.2d at 748-49 (quoting First Nat’l Bank of Fayetteville, 508 F.2d 

at 1374). Here, because the decision below resolved a motion to dismiss, the 

district court “‘primarily consider[ed] the allegations contained in the complaint,’” 

while also reviewing “matters of public and administrative record referenced in the 

complaint.’” (J.A. 153-54 (citation omitted).) That approach clearly was correct 

and directly followed this Court’s unambiguous instructions in Deerbrook 

Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000) (“Deerbrook 

Pavilion”).

In Deerbrook Pavilion, this Court explained that “[o]n a motion to dismiss, a 

court must primarily consider the allegations contained in the complaint, although 

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matters of public and administrative record referenced in the complaint may . . . be 

taken into account.” 235 F.3d at 1102; see Podraza v. Whiting, 790 F.3d 828, 833 

(8th Cir. 2015) (explaining that in deciding a motion to dismiss, courts “‘ordinarily 

examine . . . documents incorporated into the complaint by reference, and matters 

of which a court may take judicial notice’” (quoting Tellabs, Inc. v. Makor Issues 

& Rights, Ltd., 551 U.S. 308, 322 (2007))).6

 

Here, the district court correctly found that “following the Eighth Circuit’s 

reasoning in Deerbrook, the Commission has submitted and/or identified ‘matters 

of public and administrative record referenced in the Complaint.’” (J.A. 153-54 

(quoting Deerbrook Pavilion, 235 F.3d at 1102).)7

 6 Lower courts routinely invoke this Court’s direction in Deerbrook Pavilion

when discussing the proper scope of the record before a district court on a motion 

to dismiss. See, e.g., Johnson v. Sec’y of Dep’t of Veterans Affairs, No. 15-CV1869 CAS, 2016 WL 3997072, at *2 (E.D. Mo. July 26, 2016) (following 

Deerbrook Pavilion and limiting the record on a motion to dismiss to “the 

complaint and exhibits thereto” and “matters of public record”); Whitney v. 

Franklin Gen. Hosp., 995 F. Supp. 2d 917, 921 (N.D. Iowa 2014) (“The moving 

defendants have attached to their Motion To Dismiss various documents from the 

administrative record, which I may also consider on a Rule 12(b)(6) motion to 

dismiss.” (citing Deerbrook Pavilion, LLC, 235 F.3d at 1102)); Almoghrabi v. 

GoJet Airlines, LLC, No. 14-CV-00507-AGF, 2015 WL 2177374, at *3 (E.D. Mo. 

May 8, 2015) (quoting Deerbrook Pavilion standard for scope of record that may 

be considered on a motion to dismiss).

7 In the underlying proceedings, appellants complained that the administrative 

record exhibits attached to the Commission’s motion to dismiss did not include 

certain documents referenced in their complaint. Pls.’ Br. in Opp’n to FEC’s Mot. 

to Dismiss at 4-5, & Exh. A, McChesney v. FEC, No. 16-168 (D. Neb. July 28, 

2016) (Docket Nos. 27, 27-3). The FEC explained in its reply brief that the 

documents referenced by appellants in their opposition to the agency’s motion to 

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27

Appellants do not even acknowledge, let alone discuss or attempt to 

distinguish, this Circuit’s controlling precedent. Instead, they argue, as they did in 

the district court, that “the APA requires review of ‘the whole record.’” 

(Appellants’ Br. at 38 (citations omitted).) But as the district court admonished 

when it rejected the same argument, appellants’ description of the APA’s 

requirement “is incomplete.” (J.A. 154.) In fact, and as the district court correctly 

clarified, what the APA actually states is that “when reviewing agency action, ‘the 

court shall review the whole record or those parts of it cited by a party, and due 

account shall be taken of the rule of prejudicial error.’” (Id. (quoting 5 U.S.C. 

§ 706, emphasis added by district court).) 

Appellants quote from inapposite and out-of-circuit decisions and cite an 

inapplicable procedural rule governing agency review proceedings that originate in 

the Court of Appeals. (Appellants’ Br. at 37-38 & n.9.) But none of their 

 

dismiss were not part of the administrative record for the administrative fine 

challenged here, but it nevertheless directed the court and appellants to websites 

where each of the non-record documents identified by appellants is publicly 

available. FEC Reply Br. at 6-7 n.2, McChesney v. FEC, No. 16-168 (D. Neb. 

Aug. 22, 2016) (Docket No. 31). The district court recognized the Commission’s 

identification of these “‘matters of public . . . record’” in its dismissal decision. 

(J.A. 154; see id. (“The Commission has submitted those parts of the 

[administrative record] cited by the Plaintiffs, and has directed the Court to other 

publicly available documents cited in the Complaint.”).)

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28

inapplicable authorities demonstrates that the district court erred by applying this 

Court’s controlling holding in Deerbrook Pavilion. 

The stray quote appellants lift from Florida Power & Light Co. v. Lorion, 

(Appellants’ Br. at 37-38), clarifies that even “informal agency action in which a 

hearing has not occurred” is subject to direct judicial review in the court of appeals 

when provided for under the Hobbs Act. 470 U.S. 729, 744 (1985). In that case, 

the Supreme Court held that the court of appeals had erred in determining sua 

sponte that it lacked initial subject matter jurisdiction under the Hobbs Act to 

review an informal agency decision. Id. at 746. The decision in no way addresses 

the propriety of a district court reviewing only the portions of an administrative 

record materials referenced in a plaintiff’s complaint in deciding a motion to 

dismiss. 

The D.C. Circuit’s decision in Walter O. Boswell Memorial Hospital v. 

Heckler, 749 F.2d 788 (D.C. Cir. 1984), and the Washington district court’s 

decision in Seattle Audubon Society v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 

1994), likewise do not concern the proper scope of the administrative record at the 

motion to dismiss stage. Both cases involve merits determinations at the summary 

judgment stage, see Walter O. Boswell Mem’l Hosp. v. Heckler, 573 F. Supp. 884, 

886 (D.D.C. 1983); Seattle Audubon Soc’y, 871 F. Supp. at 1300, and the 

Commission expressly acknowledged below that the full administrative record 

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29

would be submitted in the event this case proceeded to that stage of district court 

proceedings. See FEC Reply Br. at 6 n.1, McChesney v. FEC, No. 16-168 (D. 

Neb. Aug. 22, 2016) (Docket No. 31). 

In Walter O. Boswell Memorial Hospital, moreover, the D.C. Circuit 

explicitly recognized that the APA provides for “‘review [of] the whole record or 

those parts of it cited by a party.’” 749 F.2d at 792 (quoting 5 U.S.C. § 706)

(emphasis added). The court’s specific determination that “the circumstances of 

th[at] case” would render consideration of a partial record “fundamentally unfair,” 

id. at 793, have no bearing on the propriety of the district court’s application of the 

APA and Deerbrook Pavilion in deciding the FEC’s motion to dismiss here. The 

district court’s reliance on the portions of the record plaintiffs chose to reference in 

their complaint works no unfairness.

Appellants’ reliance on Federal Rule of Appellate Procedure 17 is likewise 

misplaced. That Rule is part of Title IV of the Federal Rules of Appellate 

Procedure, which pertains to direct review in the courts of appeals of “an Order of 

an Administrative Agency, Board, Commission, or Officer.” Fed. R. App. P. 17, 

Title IV (Rules 15-20); see also, e.g., 28 U.S.C. § 2342 (providing exclusive 

jurisdiction in the federal courts of appeals “to enjoin, set aside, suspend . . . or to 

determine the validity of,” inter alia, final orders and other final agency actions by 

certain specified federal agencies); Cunningham v. R.R. Bd., 392 F.3d 567, 570 n.2 

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30

(3d Cir. 2004) (noting application of Rule 17 in an action filed directly in the Court 

of Appeals for review of an agency administrative order). The procedural 

requirements for that special category of cases do not purport to apply to an appeal 

of a district court decision on a motion to dismiss, and appellants have failed to 

identify any authority interpreting Rule 17 as superseding this Court’s controlling 

holding in Deerbrook Pavilion.

8

 

Appellants have thus failed to identify any applicable rule or controlling 

decision that contradicts this Court’s explicit instructions in Deerbrook Pavilion

and supports their claim that the record before the court below was insufficient. 

And they do not even attempt to identify any record regarding the administrative 

fine determination or any other administrative document identified in their 

complaint that was not made available for review by the district court.9

 They have 

 8 In any event, even in cases in which Rule 17 applies, courts of appeals have 

permitted agencies to defer filing a complete administrative record (or a certified 

index of such a record) in cases where the agency has filed a motion to dismiss. 

See, e.g., Dynegy Power Mktg, Inc. v. FERC, Nos. 04-1034, 04-1041, 04-1055, 04-

1085, 04-1088, 04-1089, 04-1091, 04-1120, 04-1193, 04-1194, 04-1195, 2004 WL 

1920775, at *1 (D.C. Cir. Aug. 26, 2004) (per curiam) (granting motion to defer 

filing the certified index after appellants moved to dismiss).

9 Appellants now, for the first time, purport 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 (Appellants’ Br. 

at 38-39). But, as discussed infra pp. 31-36, appellants themselves acknowledge

that the regulations were extended pursuant to a tally vote of the Commissioners 

following circulation of the Reviewing Officer’s final recommendations. There 

was thus no public meeting at which the regulatory extension was discussed. Had 

there been such a discussion, appellants would be free to listen to it via the audio 

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thus failed to provide any basis upon which this Court could find that the decision 

below was based on an insufficient record. 

The Commission followed this Court’s precedent when it submitted the 

portions of the administrative record referenced in appellants’ complaint and its 

motion to dismiss was properly decided based upon that record. The district court 

correctly rejected appellants’ challenge to the sufficiency of the administrative 

record and this Court should do the same.

B. The District Court’s Conclusion that the Commission Complied 

With the Sunshine Act When Extending the Administrative Fine 

Regulations Was Sound

The district court correctly held that the Commission’s 2014 Extension of 

Administrative Fines Regulations was consistent with the Sunshine Act and the 

Commission’s regulations implementing that Act, including the tally vote 

procedures spelled out in the regulations. 

FECA grants the Commission statutory authority to promulgate its own 

“rules for the conduct of its activities.” 52 U.S.C. § 30106(e). As the district court 

explained, Commission regulations promulgated consistent with that discretion and

pursuant to the Government in the Sunshine Act (“Sunshine Act”), 5 U.S.C. 

552b(g), provide generally for the “disposition of official Commission business” 

through “the deliberation of at least four voting members of the Commission in 

 

recordings publicly available on the FEC’s website. See Archived Recordings of 

FEC Open Meetings, http://www.fec.gov/audio/audio.shtml. 

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collegia” at an open, public meeting. (J.A. 161 (internal quotation marks omitted) 

(citing 11 C.F.R. §§ 2.2(d)(1), 2.3(a), (b)).) As the court below further explained, 

Commission regulations also provide a “narrow exception to the . . . requirement

[that four or more Commissioners engage in deliberations on Commission business 

via a meeting] when the Commission disposes of ‘routine matters.’” (Id. (citing 11 

C.F.R. §§ 2.2(d)(2)).) Commission regulations provide that such matters may be 

addressed pursuant to a streamlined, notational or “circulation” voting procedure, 

which frees the Commissioners to devote more of their time to the many complex 

tasks involved in enforcing and administering federal campaign finance statutes. 

See Combat Vets, 795 F.3d at 154; J.A. 161-62 (“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.” (citing Commc’ns Sys., Inc. 

v. FCC, 595 F.2d 797, 800-01 (D.C. Cir. 1978))). Such a procedure is consistent 

with the Sunshine Act, 5 U.S.C. § 552b. See Commc’ns Sys., Inc., 595 F.2d at 

800-01; R.R. Comm’n of Tex. v. United States, 765 F.2d 221, 230 (D.C. Cir. 1985) 

(“The Sunshine Act does not require that meetings be held in order to conduct 

agency business; rather, that statute requires only that, if meetings are held, they be 

open to the public (subject to various enumerated exceptions . . . .” (citations 

omitted)). 

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It was reasonable for the Commission to conclude that extending the 

expiration of its administrative fines regulations was a “routine matter” that could 

be addressed pursuant to the agency’s tally vote procedure. Without notational 

voting, “consideration of the more serious issues that require joint face-to-face 

deliberation” would be delayed and “the entire administrative process would be 

slowed perhaps to a standstill.” Commc’ns Sys., Inc., 595 F.2d at 800-01.

10 This 

voting procedure was a lawful and appropriate method for completing Commission 

action as promptly as possible in order to avoid the harm to public interest that 

would have been occasioned by further delay. As described supra, p. 10 & n.2, 

Congress did not enact legislation extending the end date of the statutory 

Administrative Fines Program until just days before it was scheduled to expire. 

The Commission acted as expeditiously as possible to implement Congress’s 

extension in its regulations and minimize the gap during which the expiration of 

the regulations precluded it from administering FECA’s Administrative Fines 

Program. (J.A. 158-60.) Prolonging the Commission’s inability to administer 

FECA’s Administrative Fines Program for an extended period of time could have 

caused delays and confusion, and would have frustrated Congress’s purpose in 

establishing the Administrative Fines Program. As the district court recognized, 

 10 Even if the routine periodic extension or regulations at issue here had been 

controversial for some reason, “the applicability of notational, sequential voting” 

under the Sunshine Act is not limited “to non-controversial cases.” R.R. Comm’n 

of Tex., 765 F.2d at 230.

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that purpose was “‘to create a special, streamlined set of procedures for efficiently 

imposing fines on covered persons for routine filing and record-keeping violations, 

such as the late filings at issue here.’” J.A. 159 (quoting Combat Vets, 795 F.3d at 

154)); see also 145 Cong. Rec. 16,260 (July 15, 1999) (statement of Rep. 

Maloney) (noting that the bill “contains several provisions that will help the 

agency operate more efficiently,” including by creating “a system of 

‘administrative fines’ — much like traffic tickets, which will let the agency deal 

with minor violations of the law in an expeditious manner”). 

In order to accommodate the need for efficiency and expedition, “[t]he 

Sunshine Act does not require an agency to hold a meeting in order to function.” 

Id. (citing Commc’ns Sys., Inc., 595 F.2d at 800-01). A government agency like 

the Commission has “broad discretion to determine the procedures by which it 

conducts its business.” Pacific Legal Found. v. Council on Envtl. Quality, 636 

F.2d 1259, 1266 (D.C. Cir. 1980). The Commission’s reasonable determination 

that extending the expiration of its administrative fines regulations on an expedited 

basis and pursuant to a tally vote is entitled to deference. South Dakota v. U.S. 

Dep’t of Interior, 423 F.3d at 799. 

Appellants have not identified any legal authority prohibiting the 

Commission from implementing the statutory extension of the Administrative 

Fines Program through a tally-vote procedure. They emphasize (Appellants’ Br. 6-

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35

7) that the Commission held an open meeting on January 16, 2014, three days after

the Commission adopted the 2014 Extension of Administrative Fines Regulations. 

But that fact is irrelevant: even if, as appellants assume, the Commission could 

have deferred voting to implement the statutory extension at that meeting, that 

possibility is not even close to legal authority requiring the Commission to do so, 

and it certainly does not demonstrate that appellants’ administrative fine was 

arbitrary or capricious.

Appellants concede that the Sunshine Act, 5 U.S.C. § 552(b), does not 

provide jurisdiction in this case, while still purporting to rely on that statute as 

authority for their claim to set aside the Commission’s administrative fine here. 

But as the district court correctly concluded, “[e]ven if the Commission’s voting 

procedures did not expressly follow the requirements of the Sunshine Act, the 

remedy for such violations is increased transparency, not invalidation of agency 

action.” J.A. 162-63 (citing Braniff Master Exec. Council of Air Line Pilots Ass’n 

Int’l v. Civil Aeronautics Bd., 693 F.2d 220, 226 (D.C. Cir. 1982); Pan Am. World 

Airways, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 36 (D.C. Cir. 1982) (per 

curiam)); see S. Rep. No. 94-354, at 34 (1975) (“It is expected that a court will 

reverse an agency action solely on [the ground that it was taken at an improperly 

closed meeting] only in rare instances where the agency’s violation is intentional 

and repeated, and the public interest clearly lies in reversing the agency action.”). 

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36

Although agency action might be set aside when it is intentional, prejudicial 

to the party making the claim, and “of a serious nature,” see Pan Am, 684 F.2d at 

36-37, appellants “have not alleged any facts suggesting that the FEC’s alleged 

Sunshine Act violations meet those criteria,” as the district court explained. 

(J.A. 163 (citing S. Rep. No. 94-354, at 34).) There was no improperly closed 

meeting here. 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. See supra pp. 

10, 12. Thus, neither the Sunshine Act, nor the Commission’s regulations 

implementing that Act, nor FECA provides a legal basis for setting aside the 

Commission’s administrative fine determination here.

C. The District Court Rightly Held That the Commission’s 

Regulatory Extension Was Consistent With the APA and FECA 

The district court correctly concluded that the Commission’s promulgation 

of the 2014 Extension of Administrative Fines Regulations was fully consistent 

with the authorizing statute and the APA. Given that the regulations had lapsed 

after a last-minute reauthorization from Congress and were being reissued with 

little change, the Commission concluded there was good cause to waive the APA 

requirements of pre-adoption notice and comment and post-adoption publication. 

Despite the Commission’s promulgation of the Administrative Fines regulations, 

including a schedule of penalties, through the Federal Register, appellants 

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erroneously contend that the agency did not “establish[]” that schedule. The 

Commission did; and it was not required to do so through a process completely 

separate from its publication of the schedule. Congress’s reauthorization of the 

administrative fines program imposed no procedural requirements on the

rulemaking it necessitated, and the district court was right to conclude that the 

Commission’s establishment of the schedule of penalties complied with the APA.

1. The APA’s Pre-Adoption Notice and Comment 

Requirements May Be Waived

As the district court accurately observed, agencies generally are required to 

conduct substantive rulemakings in accordance with certain notice and comment 

procedures set forth in the APA. J.A. 155; see Iowa League of Cities v. EPA, 

711 F.3d 844, 855 (8th Cir. 2013) (citing 5 U.S.C. § 553(b)(c)). Those procedures 

are: providing notice of the proposed rule, conducting a hearing or receiving and 

considering public comments on the proposal, and publishing the new rule at least 

30 days in advance of its effective date. Id.; see also United States v. Brewer, 766 

F.3d 884, 888 (8th Cir. 2014). As the district court also recognized, however, the 

APA includes an important caveat: “[a]n agency may waive the requirements of a 

notice and comment period and the 30-day grace period before publication if the 

agency finds ‘good cause’ to do so.” Id. (quoting Brewer, 766 F.3d at 888 (citing 

5 U.S.C. §553(b)(B), (d)(3))). 

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2. The FEC Had Good Cause to Exempt the 2014 Extension of 

Administrative Fines Regulations from the APA’s PreAdoption Notice and Comment Requirement

This Court applies a deferential standard when evaluating an agency’s 

reliance on the “good cause” exception to the APA’s notice and comment 

requirements. Brewer, 766 F.3d at 888; see J.A. 156 (citing Brewer). In 

evaluating an agency’s claim of good cause under section 553(b)(B), this Court 

considers “only . . . ‘whether the agency’s determination of good cause complies 

with the congressional intent’ [manifested in 5 U.S.C. §] 553(d).” Brewer, 766 

F.3d at 888 (quoting Gavrilovic, 551 F.2d at 1105); see J.A. 156.

11 An agency may 

establish good cause by showing that notice and comment are “impracticable, 

unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). Here, the 

Commission and the court below correctly concluded that pre-adoption notice and 

comment were both unnecessary and contrary to the public interest. 

a. Pre-Adoption Notice and Comment Were Unnecessary

The “unnecessary” prong of section 553(b)(B) includes circumstances where 

amendments to an existing regulation “are minor or merely technical.” 

J.A. 157(quoting Hedge v. Lyng, 689 F. Supp. 884, 892 (D. Minn. 1987)); see also

 11 As the district court noted, some other courts of appeals have reviewed an 

agency’s good cause determination de novo, (see J.A. 156 (citing United States v. 

Gould, 568 F.3d 459, 469-70 (4th Cir. 2009); United States v. Cain, 583 F.3d 408, 

420-21 (6th Cir. 2009))), while still other courts have suggested that “‘good cause 

should be narrowly construed,’” (id. (citing United States v. Reynolds, 710 F.3d 

498, 507 (3d Cir. 2013))).

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39

North Carolina Growers Ass’n v. United Farm Workers, 702 F.3d 755, 766

(4th Cir. 2012); Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. 

Cir 2001); S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945). Pre-adoption notice 

and public comment are likewise “unnecessary” for “a routine determination” that 

is “insignificant in nature and impact, and inconsequential to the industry and to 

the public.” (J.A. 157 (citing Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 

2012); S. Rep., No. 752, 79th Cong. 1st Sess. (1945)).) Even where an agency is 

re-issuing a former rule that had been vacated — which is not the case here — the 

agency is not “necessarily require[d] . . . to ‘start from scratch’ and initiate new 

notice and comment proceedings” if the original rule was subject to notice and 

comment. Mobil Oil Corp. v. EPA, 35 F.3d 579, 584-85 (D.C. Cir. 1994)

The 2014 Extension of Administrative Fines Regulations easily fits within 

these parameters. As the district court found, the regulation “merely extend[ed] 

the applicability of the existing [Administrative Fines Program] and delete[ed] one 

administrative provision; the final rule ma[de] no substantive changes to the 

[Administrative Fines Program].” (J.A. 157-58 (quoting 2014 Extension of 

Administrative Fines Regulation, 79 Fed. Reg. at 3302).) Indeed, as the court 

below further explained, “the 2014 Regulatory Extension did not make any 

substantive changes” and “did not alter or even mention the civil penalty 

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[appellants] challenge in this case.” (Id. at 158.)12 Moreover, because “[n]o extent 

of notice or commentary could have altered the Commission’s obligation to 

implement” Congress’s December 2013 extension of the statutory administrative 

fines program, the Commission and the district court correctly determined that the 

2014 Extension of Administrative Fines Regulations was “not an exercise of 

substantive agency decision-making.” (Id.)

b. Pre-Adoption Notice and Comment Would Have Been 

Contrary to the Public Interest

In addition to being unnecessary, utilizing pre-adoption notice and comment 

procedures in these circumstances would have been contrary to the public interest. 

As the court below explained, “[t]he public interest prong ‘is appropriately invoked 

when the timing and disclosure requirements of the usual procedures would defeat 

the purpose of the proposal — if, for example, ‘announcement of a proposed rule 

would enable the sort of financial manipulation the rule sought to prevent.’” 

(J.A. 158-59 (quoting Mack Trucks, Inc., 682 F.3d at 95).) 

As described supra, p. 10 & n.2, Congress’s enactment of legislation 

extending the end date of the statutory Administrative Fines Program just days 

 12 In contrast, the civil penalty formula for untimely 48-hour notices was 

originally established in May 2000, pursuant to a notice-and-comment rulemaking, 

see May 2000 Administrative Fines Rule, 65 Fed. Reg. at 31787, and was adjusted, 

in 2005, to the amount that formed the basis for appellants’ fine. See Inflation 

Adjustments for Civil Monetary Penalties, 70 Fed. Reg. 34633, 34636 (June 15, 

2005) (adjusting civil penalty formula for 48-Hour Notices that are not timely filed 

as “$110 + (.10 x amount of the contribution(s) not timely reported”)). 

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41

before it was scheduled to expire required the agency to act expeditiously to 

prevent disclosure violations from being subject to the Commission’s more 

extensive ordinary procedures in contravention to Congressional will. J.A. 159-60 

(citing 2014 Extension of Administrative Fines Regulations, 79 Fed. Reg. at 3302); 

see Petry v. Block, 737 F. 2d 1193, 1201-1202 (D.C. Cir. 1984) (holding decision 

to waive notice-and-procedures “was entirely reasonable” given the “extremely 

limited time given by Congress”).

The FEC and the district court correctly found that pre-adoption notice and 

public comment were contrary to the public interest.13

3. The FEC Also Demonstrated Good Cause to Waive the 

APA’s 30-Day Grace Period Before Publication

The same considerations detailed above, supra pp. 38-41, also demonstrate 

that the Commission had good cause to make the 2014 Extension of 

Administrative Fines Regulations effective immediately upon publication. “[T]he 

purpose for deferring the effectiveness of a rule under § 553(d) was to ‘afford 

persons affected a reasonable time to prepare for the effective date of a rule or 

 13 Agencies have also concluded that similar circumstances rendered preadoption notice and comment “impracticable.” See, e.g., In the Matter of 

Implementation of Section 1003(B) of the Department of Defense Appropriations 

Act, 2010, 24 FCC Rcd. 14487, 14888, 2009 WL 5125386, at *1 (Dec. 28, 2009) 

(explaining that where Congress had extended a statute’s sunset date less than two 

weeks before its expiration, the Federal Communications Commission had “good 

cause” to implement the new sunset date in its regulations, inter alia, because 

notice and comment would have been impracticable).

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42

rules or to take other action which the issuance may prompt.’” Gavrilovic, 

551 F.2d at 1104 (quoting S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. 

Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946)). “[T]he APA was not[, however,]

intended to unduly hamper agencies from making a rule effective immediately or 

at some time earlier than 30 days,” and “an administrative agency is required to 

balance the necessity for immediate implementation against principles of 

fundamental fairness which require that all affected persons be afforded a 

reasonable time to prepare for the effective date of its ruling.” Id. at 1104-05.

Congress indicated that “many rules . . . may be made operative in less than 

30 days,” inter alia, “because of inescapable or unavoidable limitations of time” or 

“because of the demonstrable urgency of the conditions they are designed to 

correct.” U.S. Steel Corp. v. EPA, 605 F.2d 283, 290 (7th Cir. 1979) (quoting 

S.Doc. No. 248, 79th Cong., 2d Sess. 260 (1946)).

For the same reasons that pre-adoption notice and comment were not 

appropriate, delaying the effective date of the regulatory extension would similarly 

have been ill-advised. The rule made no substantive changes to the Commission’s 

administrative fine procedures or penalty schedule, and it did not impose any new 

reporting obligations on political committees. As the district court explained, 

“[t]he changes made to the regulations were minor and non-substantive and merely 

extended the Administrative Fines Program already in place.” (J.A. 161.) 

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43

Furthermore, and as detailed above, supra pp. 40-41, delaying the effective date of 

the regulatory extension would have “frustrate[d] the purposes of the simplified 

administrative fines system.” (Id.)

4. Appellants Do Not Meaningfully Dispute the Findings of 

Good Cause to Waive Certain APA Requirements Here 

Appellants do not pose any meaningful challenge to the district court’s 

conclusion that the Commission possessed good cause to waive the notice-andcomment and post-adoption publication requirements of the APA. Appellants 

specifically contested the Commission’s actions on the grounds of failure to 

provide notice and accept comments in the district court, Pls.’ Br. in Opp’n to FEC 

Mot. to Dismiss, at 13-16, McChesney v. FEC, No. 16-168 (D. Neb. July 28, 2016) 

(Docket No. 27), but do not make any argument against those findings in this 

Court. That aspect of the district court’s reasoning is thus not properly subject to 

further review. See, e.g., Meyers v. Starke, 420 F.3d 738, 742-43 (8th Cir.2005) 

(explaining that to be reviewable, an issue must be presented with some specificity, 

and failure to do so can result in waiver); Harris v. 575 Folk Constr. Co., 138 F.3d 

365, 366 n. 1 (8th Cir.1998) (concluding that appellant’s failure to assert grounds 

for challenging certain rulings effectively waived related issues on appeal).

The closest appellants come to responding to the findings of good cause here 

is a single citation, in a footnote, to a 1979 Fifth Circuit decision explaining that 

“the mere existence of deadlines for agency action . . . does not in itself constitute 

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44

good cause.” (Appellants’ Br. at 34 n.7 (quoting U.S. Steel Corp. v. EPA, 595 F.2d 

207, 213 (5th Cir. 1979); emphasis added).) But that clarification does not nearly 

support appellants’ suggestion that the Commission acted improperly here, where 

utilizing general notice and comment procedures and delaying the rule’s effective 

date were both unnecessary and contrary to the public interest, as detailed above.

5. The Authorizing Legislation Imposed No Procedural 

Requirements Above and Beyond the APA On the 

Commission’s Establishment of A Schedule of Penalties

Rather than contest the district court’s APA holdings, appellants instead 

contend that in making those rulings the court below “focused on a secondary 

McChesney argument” and “did not truly address” other arguments they had 

advanced. (Appellants’ Br. at 11, 20.) Though the district court addressed the 

propriety of the Commission’s actions under the APA and the Sunshine Act, as 

described above, appellants appear to contend that some further analysis was 

required regarding whether the Commission had engaged in a process to establish a 

schedule of penalties separate and apart from its act of publishing the schedule. No 

such analysis was required of the district court, and no such separate process was 

required of the district court. 

To whatever extent appellants intended to make an argument about an 

obligation to establish the schedule of penalties that was distinct from their 

challenges to the Commission’s waiver of notice-and-comment requirements and 

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45

use of tally voting, they failed to make any such distinction clear in their district

court filings. Appellants’ arguments regarding the Commission’s obligation to 

establish the schedule of penalties were buried among their arguments regarding a 

lack of notice and comment, the tally vote procedure, and the lack of a public 

meeting. See Pls.’ Br. in Opp’n to FEC Mot. to Dismiss, at 14-16, McChesney v. 

FEC, No. 16-168 (D. Neb. July 28, 2016) (Docket No. 27). Even if the district 

court had failed to divine purportedly distinct arguments that had been intended, it 

committed no error. 

Moreover, even if appellants had presented an argument about a requirement 

to establish the schedule of penalties distinct from APA and Sunshine Act 

requirements, no such requirement exists. The Commission is required by 52 

U.S.C. 30109(a)(4)(C)(iii) to “establish[] and publish[]” a schedule of 

administrative fine penalties, but that provision of FECA does not foreclose the 

Commission from completing both of those tasks by voting on one rulemaking 

document and then publishing it. The 2013 legislation authorizing the extension of 

the administrative fines program did not mandate any particular “evaluative 

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

appellants contend. See Appellants’ Br. at 19; Act of Dec. 26, 2013, Pub. L. No. 

113-72, sec. 1. The Commission has without doubt established a schedule of 

penalties, as application of the schedule to appellants’ reporting violations attests.

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46

Given the lack of any specific procedural requirements in the authorizing 

legislation, there are no relevant procedural requirements imposed on top of the 

APA, the Sunshine Act, and other similar rules generally applicable to federal 

agencies. 

Appellants also attempt to overcome the heightened deference and 

“presum[ption of] . . . validity” to which the Commission’s determination is 

entitled through exaggerated characterizations of the scope and nature of the rule at 

issue in this narrow judicial review action. Global NAPs, Inc., 247 F.3d at 257; 

South Dakota v. U.S. Dep’t of Interior, 423 F.3d at 799. Contrary to appellants’ 

description, this case does not concern the Commission’s purported “establishment 

of a penal code for all federal elections.” (Appellants’ Br. 2, 10 n.2, 32.) Instead, 

the regulation that appellants challenge as invalid was a straightforward 

implementation of an expiration date to conform the Commission’s administrative 

fines regulations to the statutory program the rules were created to administer. Its 

promulgation was manifestly consistent with the authorizing statute and the APA. 

D. Appellants’ Judicial Review Action Also Warranted Dismissal 

Based on Appellants’ Failure to Bring a Proper Challenge to 

Their Administrative Fine

In addition to the reasons discussed above, the FEC’s administrative fine 

determination may be affirmed for the independent reason that the Commission 

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reasonably found that appellants failed to invoke any of the grounds permitted by 

section 111.35(b). (See J.A. 124.) 

As described above, see supra pp. 7-8, the Commission’s administrative 

fines regulations specify three permissible grounds for challenging an 

administrative fine: (1) factual errors in the Commission’s finding (such as if the 

report was, in fact, timely filed); (2) inaccurate calculation of the penalty; or (3) a 

showing that the respondent used “best efforts” to file in a timely manner but was 

prevented from doing so by “reasonably unforeseen circumstances . . . beyond the 

[respondent’s] control, and [t]he respondent filed [the report] no later than 24 hours 

after such circumstances ended. 11 C.F.R. § 111.35(b)(1)-(3). 

Courts applying the FEC’s administrative fines regulations have repeatedly 

recognized the exclusivity of these specified grounds for challenging an 

administrative fine. See, e.g., Combat Vets, 983 F. Supp. 2d at 6, 16-18 (listing the 

three permissible bases for challenging an administrative fine and rejecting a 

challenge to the “best efforts” provision as unreasonably narrow); Lovely, 307 F. 

Supp. 2d at 300 (explaining that FEC regulations “provide that challenges to civil 

fines may be based on only three reason” and listing the three bases set forth in 11 

C.F.R. § 111.35(b) (emphasis added)); Kuhn for Cong. 2014 WL 7146910, at *6 

(observing that “[t]here are three possible grounds for . . . an administrative 

challenge” to an FEC administrative fine); Cox for U.S. Senate Comm., Inc. 2004 

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WL 783435, at *5 (explaining that 11 C.F.R. § 111.35(b) permits a challenge to a 

civil money penalty “only on the basis of (i) [t]he existence of factual errors; 

and/or (ii) [t]he improper calculation of the civil money penalty; and/or (iii) [t]he 

existence of extraordinary circumstances that were beyond the control of 

[Plaintiffs] and that were for a duration of at least 48 hours and that prevented 

[Plaintiffs] from filing the report in a timely manner” (alterations by court)).14 

In its dismissal decision, the district court correctly recognized that 

appellants “do not directly pursue those grounds in this case,” but nevertheless 

construed appellants challenge to implicitly assert a factual error. (J.A. 153 

(stating that appellants’ “response to the Commission can reasonably be read to 

assert an objection on the basis of factual error”).) In fact, appellants’ failure to 

 14 The history of section 111.35 makes clear that subsection (b)(1) is limited to 

errors regarding the factual basis for the Commission’s reason-to-believe finding. 

As initially promulgated in 2000, section 111.35(b)(1) merely required a written 

response to contain “[r]eason(s) why the respondent is challenging the reason to 

believe finding and/or civil money penalty which may consist of . . . [t]he existence 

of factual errors.” May 2000 Administrative Fines Rule, 65 Fed. Reg. at 31795. 

But, when the regulation was revised in 2007, subsection (b)(1) was explicitly 

limited to claims that “[t]he Commission’s reason to believe finding is based on a 

factual error,” and two illustrative examples were added: “the committee was not 

required to file the report, or the committee timely filed the report in accordance 

with 11 CFR 100.19.” Notice 2007-7, Final Rules and Transmittal to Congress, 

72 Fed. Reg. 14662, 14667 (Mar. 29, 2007). The Commission’s Explanation and 

Justification clarified that “a respondent may not challenge an RTB finding based 

on factual errors that are irrelevant to the Commission’s actual RTB finding. Id. 

at 14664. 

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49

establish any actual factual error, let alone one that formed the basis for the 

Commission’s determination, see supra p. 48 n.14, or that the penalty was 

miscalculated, or that they used best efforts to file on time, constitute a separate 

and proper basis for finding that they had not successfully challenged their 

administrative fine, as the Commission originally concluded,. J.A. 124; see 

11 C.F.R. § 111.35(b)(1)-(3).

The district court’s substitution of its own assessment that appellants’ 

response “can reasonably be read” to assert factual error (J.A. 153), reflected an 

application of the wrong standard of review. As this Court has recognized, “[i]f an 

agency’s determination is supportable on any rational basis, we must uphold it.” 

Voyageurs Nat’l Park Ass’n, 381 F.3d at 763. The district court’s recognition that 

appellants “do not directly pursue” any of the permissible grounds for challenging 

an administrative fine here (J.A. 153), necessarily confirms that the Commission 

had a rational basis for determining that appellants failed to pursue any of three 

permissible grounds for challenging an administrative fine. 

The district court’s substitution of its own independent assessment of 

appellants’ challenge also failed to accord the FEC the deference to which it is 

entitled. The Commission’s determination was based on its application of FECA, 

a statute the FEC was created to administer, and the Commission’s own 

regulations, and is thus entitled to “substantial” deference. Global NAPs, Inc., 247 

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50

F.3d at 257; see Chevron, U.S.A., Inc., 467 U.S. at 842-43; South Dakota v. U.S. 

Dep’t of Interior, 423 F.3d at 799. 

The clear reasonableness of the Commission’s determination that appellants 

failed to properly challenge the agency’s administrative fine determination is yet 

another reason why the Commission’s determination, and the decision below, must 

be affirmed. 

CONCLUSION

For the foregoing reasons, the decision below should be affirmed and the 

Commission’s administrative fine determination should be sustained.

Respectfully submitted,

Lisa J. Stevenson 

Acting General Counsel

Kevin Deeley

Associate General Counsel 

Erin Chlopak

Assistant General Counsel

/s/ Robert W. Bonham III

Robert W. Bonham III 

Senior Attorney

FOR APPELLEES

MATTHEW S. PETERSEN AND 

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

March 31, 2017

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2

CERTIFICATION OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g)(1), I hereby certify 

that this document complies with the type-volume limitation provided in Rule 

27(d)(2)(A) and, relying on the word processor word count feature, contains

11,943 words. This document was created using Microsoft Word 2013.

/s/ Robert W. Bonham III

Robert W. Bonham III 

Senior Attorney

March 31, 2017

CERTIFICATE OF SERVICE 

I hereby certify that on March 31, 2017, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which sends notification of 

such filing to the following CM/ECF participants in this case: 

Leonard Steven Grasz, Esq., Husch Blackwell LLP, 

13330 California Street, Suite 200, Omaha, NE 68154 

(attorney for plaintiffs-appellants 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.).

/s/ Robert W. Bonham III

Robert W. Bonham III 

Senior Attorney

March 31, 2017

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