155859 ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

CASE NO. 3:12-CV-244-CRS

CONWAY FOR SENATE PLAINTIFF

VS. MOTION FOR SUMMARY JUDGMENT

FEDERAL ELECTION COMMISSION DEFENDANT

Plaintiff, Conway for Senate, files its Motion for Summary Judgment pursuant to Fed.R.C.P. 56. 

Plaintiff asserts that the FEC’s decision that Plaintiff violated the Federal Election Campaign Act by not 

filing its report in a timely manner was arbitrary and capricious, contrary to law and fact. In support of its 

Motion, Plaintiff relies upon the accompanying Memorandum of Law and administrative record. A 

proposed Order accompanies this Motion.

Respectfully submitted,

DENTON & KEULER, LLP

P.O. Box 929

Paducah, KY 42002-0929

Tel. No.: (270) 443-8253

Fax No.: (270) 442-6000

By: /s/ Glenn D. Denton ______________________

Glenn D. Denton 

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing with the clerk of the court by using 

the CM/ECF system on this 15th day of January, 2013, which will send a notice of electronic filing of the 

above to all counsel of record as follows:

ANTHONY HERMAN

DAVID KOLKER

LISA STEVENSON

ADAV NOTI

BENJAMIN A STREETER III

999 E STREET NW

WASHINGTON DC 20463

Attorneys for Defendant

By: /s/ Glenn D. Denton ________

 Glenn D. Denton

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155862 ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

CASE NO. 3:12-CV-244-CRS

CONWAY FOR SENATE PLAINTIFF

VS. PLAINTIFF’S MEMORANDUM IN SUPPORT

OF MOTION FOR SUMMARY JUDGMENT

FEDERAL ELECTION COMMISSION DEFENDANT

Comes the plaintiff, Conway for Senate, by and through counsel, and for its Memorandum of 

Law in Support of its Motion for Summary Judgment states as follows:

JUDGMENT

I. Introduction.

In 2010, Kentucky Attorney General Jack Conway unsuccessfully ran for the United States 

Senate seat vacated by Senator Jim Bunning. After his loss, the Federal Election Commission (“FEC”) 

informed his campaign, Conway for Senate, that they were required to submit various required reports. 

At issue in this case is a year-end report that the campaign alleges it placed in an envelope received by the 

FEC. The FEC admitted it received the envelope, but claimed there was no such report in the envelope. 

As a result, the FEC deemed the campaign to have violated the reporting statute by failing to file, and 

assessed a civil monetary penalty against the campaign.

The decision to rule the report as “not filed” was arbitrary, capricious, and an abuse of the FEC’s 

discretion. The administrative record contains myriad pieces of evidence provided by Conway for Senate 

indicating that the report was filed timely, including the Federal Express tracking data for the envelope it 

was in (which the FEC does not dispute receiving), an e-mail showing that the document was prepared 

timely and sent to the relevant parties, and affidavits from all parties involved in the mailing asserting that 

the report was in the envelope when it was mailed. In sharp contrast to this, the FEC reviewing officer’s 

case was built entirely on an unsubstantiated letter claiming that the report was not in the envelope, a 

secondhand discussion in which the Sergeant-at-Arms denied misplacing it, and two phone conversations 

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in which the reviewing officer was not present. Neither the FEC nor the reviewing officer made any 

attempt to independently verify this information, relying instead solely on the assumption of infallibility 

of all government actors involved. Even taking the FEC’s claim at face value that the report was not in 

the envelope, its actions were still improper as it ignored its own stated policy by failing to give plaintiff 

the benefit of the doubt under the best efforts defense, a safe harbor provision located in the Federal 

Election Campaign Act.

The decision to assess a penalty despite the paucity of evidence in its favor and the substantial 

evidence against it represents a clear error in judgment. While certainly the FEC is entitled to wide 

deference in its decision-making process, the disregard shown to the facts of the case, the desultory nature 

of the investigation, and the failure to evaluate a defense statutorily guaranteed to the plaintiff,

demonstrate that the FEC exceeded even this broad standard. The FEC decision was arbitrary and 

capricious. Conway for Senate asks the court to enter summary judgment on its behalf and vacate the 

FEC’s final determination and the civil monetary penalty. 

II. Statement of Facts.

Conway for Senate (“campaign”) received notice from the Federal Election Commission (“FEC”) 

on December 27, 2010, of forms it was required to file, including the year-end report. AR 071-075. After 

receiving the notice, campaign employee Nick Braden prepared the relevant forms, including the year-end 

report. He e-mailed them to R. Wayne Stratton, the campaign’s treasurer, on January 24, 2011. AR 117. 

The reports were printed and given to Mr. Stratton’s secretary, Lynn-Marie Johnson, who placed them in 

an envelope and mailed them via Federal Express overnight mail on January 25. AR 029. The envelope 

was assigned a tracking number and was timely received and signed for on January 26, 2011. AR 030-

033. The envelope was first delivered to the Senate Sergeant-at-Arms, who opened it, and then forwarded 

it to the Senate Office of Public Records. That office then reported the contents to the Federal Election 

Commission. AR 070, 124. 

On February 17, the FEC mailed a notice to Mr. Stratton informing him that the Commission did 

not receive a copy of the year-end report. AR 001. Due to the fact that the notice was mailed to the P.O. 

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box of a campaign that was now shut down, Mr. Stratton did not receive the notice in his office until 

March 10. AR 113. He immediately responded by mailing a letter saying that the year-end report had 

been mailed on January 25 and included the original shipment label and tracking data for the envelope in 

which it had been shipped. AR 104. He also included another copy of the original report; however, 

because he had filed his original report on January 25, he insisted that he had filed timely. Id. 

Nevertheless, on April 1, the FEC found reason to believe that the campaign had violated 2 U.S.C. 

§434(a), and fined them $4,950.00 for not filing the report.1 AR 017. This was the first time the 

campaign had been penalized during its entire existence. AR 077. The campaign was notified of the 

penalty on April 4 and given a chance either to pay the fine or challenge the penalty. AR 024. The letter 

informed Stratton that if he wished to challenge the decision he could do so on three grounds: a factual 

error in the “reason to believe” finding; a miscalculation of the civil money penalty; or a demonstrated 

use of his best efforts to file when prevented from doing so by reasonably unforeseen circumstances 

beyond his control. AR 025. 

 Stratton challenged the penalty in a letter on May 4, insisting that the campaign had “consistently 

filed on time reports” and reiterating that they did so this time as well. AR 028. Also included with this 

letter was the May 5 affidavit of Lynn-Marie Johnson, in which she confirmed that she had placed the 

year-end report with three other amended reports in an envelope and had mailed them in the January 25 

package. AR 029. In response, the FEC checked with the Senate Office of Public Records; that office 

claimed that five documents had indeed been received in that office on January 28 in the envelope in

question, but none of them was the year-end report. AR 051. 

On June 29, FEC reviewing officer Dayna Brown submitted her recommendation to the 

Commission that a violation had occurred and the Commission should make a final determination to 

assess the civil penalty. AR 060-62. In addition to the letter from the Office of Public Records, Brown 

based her decision largely on two communication logs written by other FEC analysts allegedly 

1 Despite the fact that Stratton re-filed the report on March 10 (and the FEC concedes it received that document), 

FEC regulations treat filings later than thirty days past the due date as not filed. AR 024; 11 C.F.R. §111.43(e)(1). 

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documenting communication with committee members. AR 062. First, an FEC analyst claimed that 

campaign representative Paula Paisley said in a phone conversation on March 10 that the year end-report 

had been sent through certified mail. AR 081. Second, a different analyst claimed that Mr. Stratton said 

in a phone conversation on April 20 that the year-end report had been filed separately from the other 

amended reports. Id. Despite her heavy emphasis on these conversations, Brown did not participate in 

either of them. Id. Brown concluded by saying that the campaign’s challenge failed to address any of the 

provided valid grounds, including failing to allege that “the RTB finding is based on factual errors.” Id.

Wayne Stratton replied by letter on July 8, indicating that he never stated in any conversation that 

the year-end report was mailed separately. AR 113. He also reiterated his belief that the report was 

timely filed, and pointed out that of the six (6) federal and statewide PACs and campaigns for which he 

was treasurer, none of them ever failed to file in a timely fashion. Id. Included with his response was the 

affidavit of office manager, Paula Paisley, in which she confirmed the fact that the year-end report was 

placed in the envelope and mailed as Stratton and Johnson had verified earlier. AR 115. She also 

mentioned that in speaking with the Office of Public Records, a staffer had mentioned that the Senate 

Sergeant-at-Arms opened all incoming mail, and that it could be possible that the report was lost before 

being sent to Public Records. Id. Also included was the original affidavit from Johnson, the secretary 

who mailed the documents, and a copy of the January 24 e-mail from Braden confirming he had 

completed the year-end report and was sending it to Stratton and Paisley. AR 116-17.

On March 27, 2012, Dayna Brown filed her final determination recommendation, in which she 

again insisted that the campaign be penalized. AR 123-25. Her only evidence was that the Office of 

Public Records told her that they did not receive the report and that she had heard secondhand that the 

Sergeant-at-Arms also claimed he did not lose the report. Id. There is no evidence in the record that 

Brown attempted to independently verify either the Office of Public Record’s claim or the hearsay 

information received regarding the Sergeant-at-Arms. Id. The FEC deferred to her recommendation and 

made a final determination of the civil penalty on April 5. AR 135. 

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III. Argument.

A. Statement of Jurisdiction.

This court has proper jurisdiction in this matter subject to section 437g(a)(4)(c)(iii) of the Federal 

Election Campaign Act, which provides: “[a]ny person against whom an adverse determination is made . . 

. may obtain a review of such determination in the district court of the United States for the district in 

which the person resides . . .” 2 U.S.C. §437g. 

B. Summary Judgment Standard.

Summary judgment is proper where there are no genuine issues of material fact in dispute and the 

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material 

fact exists only if a reasonable jury could return a favorable verdict for the nonmoving party. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to demonstrate the 

absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 

(1986). When the court is considering a summary judgment motion regarding agency action, its role is 

“to determine whether or not as a matter of law, evidence in the administrative record permitted the 

agency to make the decision it did.” Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 689 F. 

Supp. 2d 891, 895 (W.D. Ky. 2010) (internal quotations and citations omitted). 

C. The decision to penalize Plaintiff based on the scant evidence against them and the 

powerful evidence in their favor in the administrative record was arbitrary and 

capricious.

While agency decisions are to be given wide deference by the courts, Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), they may be overturned if they are found to be 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§706(2)(A). When analyzing whether an agency decision was arbitrary and capricious, the court may not 

substitute its own judgment for that of the agency, but should look at the underlying facts to determine if 

there has been a clear error in judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 

416 (1971). The court may not create a reasonable explanation for the agency action that was not first 

proffered by the agency. S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947). “Deferential review is not 

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no review, and deference need not be abject.” McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th 

Cir. 2003) (internal quotations and citations omitted). When evaluating an agency adjudicatory action, 

the court evaluates if the decision is supported by “substantial evidence.” 5 U.S.C. §706(2)(E); T-Mobile 

Cent., LLC v. Charter Twp. of W. Bloomfield, 691 F.3d 794, 798 (6th Cir. 2012). 

In evaluating the FEC’s actions under the arbitrary and capricious standard, Greenwood for 

Congress, Inc. v. Federal Election Commission is especially apposite. CIV.A. 03-0307, 2003 WL 

22096125 (E.D. Pa. Aug. 15, 2003) (unpublished). In that case, the circumstances were virtually identical 

to those currently before the court – a committee claimed it filed a year-end report, but the FEC said it did 

not receive the report in the envelope and summarily fined the campaign.2

 Id. at *2-3. The court noted 

that the FEC presented no evidence, including affidavits of any kind, to disprove the idea that its own 

personnel could have lost the report, yet disregarded the evidence presented by the campaign. Id. at *3. 

As the FEC’s action was based “apparently on nothing more than a belief in the infallibility of their 

procedures and employees,” the court overturned the FEC’s decision as arbitrary and capricious. 

This case is identical to the Greenwood case, and while the latter case is not controlling, the 

identical facts make it highly persuasive. Here too the FEC is adopting a stance of agency infallibility,

summarily concluding that if the report does not show up in its system, then the fault must lie with the 

campaign. In doing so it is disregarding substantial evidence to the contrary. The administrative record 

shows the investigation to be perfunctory at best. The reviewing officer did not look at the relevant 

database herself, nor did she evaluate the procedures of the Office of Public Records or interview the 

employees personally. She cites conversation logs as evidence of the non-filing of the report, but the 

record contains no affidavits from the analysts who had the conversations (or affidavits of any kind). 

Brown did not even bother to speak with the analysts who had the phone conversations. At no point does 

she entertain the idea that as the envelope wended its way among three separate bureaucratic offices (the 

Sergeant-at-Arms, Office of Public Record, and FEC), and as numerous employees handled the 

2 Interestingly, even the officer mentioned in the Greenwood case, Dayna Brown, is the same reviewing 

officer who made the recommendations in this case. 

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documents contained therein, someone could have overlooked or lost the report. In response to the 

allegation that perhaps the initial recipient of the envelope, the Senate Sergeant-at-Arms, may have lost it, 

the reviewing officer apparently believed that a secondhand blanket denial relayed by someone in a 

completely different office was sufficient evidence.

In contrast to the paucity of evidence produced by the FEC, Plaintiff provided ample 

documentation to prove it had filed the report in a timely fashion. Stratton mailed three separate letters 

and had one logged phone conversation in which he insisted he sent the report in the envelope. Both the 

secretary and the office manager produced affidavits confirming that they had printed out and mailed the 

year-end report in the envelope. The office manager also confirmed this in a logged phone conversation. 

The campaign produced an e-mail showing that the year-end report was e-mailed both to affiants and to 

Stratton the day before it was shipped. Finally, the campaign produced no fewer than four tracking 

documents from Federal Express showing that the envelope arrived timely at the FEC. 

The evidence above, combined with the lack of any previous violations during dozens of filing 

deadlines, and the fact that an envelope was received with the other relevant documents, show that the 

evidence in the administrative record does not support a finding that the report was not filed. While the 

FEC’s decision is entitled to deference, to allow this decision to stand would constitute nothing less than 

blind and unwarranted obeisance. The FEC’s complete unwillingness to consider the possibility of fault 

on the part of any of the government actors involved after the delivery of the envelope constitutes an 

abuse of discretion, and the decision should be overturned. 

D. Even assuming the report was in fact not received by the Office of Public Record, 

Defendant was arbitrary and capricious in failing to follow its own regulatory 

guidelines regarding the “best efforts” defense. 

Section 432(i) of the Federal Election Campaign Act provides: 

“When the treasurer of a political committee shows that best efforts have 

been used to obtain, maintain, and submit the information required by 

this Act for the political committee, any report or any records of such 

committee shall be considered in compliance with this Act.” 2 U.S.C. 

432(i). See also 11 C.F.R. §104.7(a). 

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While this best efforts defense was initially interpreted as applying only to contributor information, the 

FEC expanded its own interpretation of the statute in 2007 to include a campaign treasurer’s failure to file 

required reports. “Statement of Policy Regarding Treasurers Best Efforts To Obtain, Maintain, and 

Submit Information as Required by the Federal Election Campaign Act,” 72 FR 31438-01. In order to 

show that the campaign made best efforts, the campaign must demonstrate it took relevant precautions 

(like double checking recordkeeping), that the campaign had trained employees who knew how to submit 

information in accordance with the Act, that the failure to file was the result of “reasonably unforeseen 

circumstances beyond the control of the committee,” and that after discovering the failure the campaign 

filed the relevant reports as soon as possible. Id. Issues such as inexperience or negligence of the 

campaign staff, failure of campaign computers, or lack of knowledge of filing deadlines do not qualify 

under the best efforts standard. Id. 

Plaintiff acknowledges that the policy statement is only an announcement of a “general course of 

action” and is not binding on the FEC. Id. However, while an agency’s decision to exercise discretion in 

ignoring or changing policy is not subject to heightened review, the agency must at least acknowledge it 

is doing so. As the U.S. Supreme Court has noted, “an agency may not, for example, depart from a prior 

policy sub silentio or simply disregard rules that are still on the books.” F.C.C. v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009).

In a very similar case, a campaign treasurer failed to file a year-end report with the FEC after 

making multiple attempts to do so. Lovely v. F.E.C., 307 F. Supp. 2d 294, 297 (D. Mass. 2004). Despite 

the weight of evidence demonstrating the fault was with the FEC, the FEC summarily ruled that the report 

was not filed and assessed a penalty. Id. The court reversed this decision, noting the lack of fact-finding 

on key issues by the reviewing officer, and a profound lack of clarity as to “how the Commission 

evaluated Plaintiffs’ ‘best efforts’ arguments, or whether it applied the correct legal standard.” Id. at 301. 

Assuming arguendo that the report was in fact not filed, the FEC should have undertaken a “best 

efforts” analysis based on the evidence. There is no evidence in the “reason to believe” recommendation, 

the final determination recommendation, or in any of the FEC investigation contained in the 

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administrative record to indicate that the reviewing officer or the Commission even considered the “best 

efforts” defense as required by the Commission’s own interpretation of 2 U.S.C. 432(i). The evidence put 

forward by Stratton – the copy of the e-mail from Braden, the affidavits from those involved in printing 

and mailing it, the Federal Express tracking numbers, and Stratton’s own personal recollections – are 

plainly the kind to be considered under the “best efforts” analysis. Stratton laid out the procedures and 

safeguards used by the campaign, indicating that the alleged failure to file was due to unforeseen 

circumstances, and he responded by filing a new copy the same day he became aware of the unforeseen 

circumstances. His evidence and explanation fall firmly within the guidelines laid out in the statute and 

relevant FEC regulations and policy statement. It is true that as the policy interpretation is nonbinding, 

the reviewing officer had discretion not to apply the best efforts analysis. However, administrative law 

requires that she at least acknowledge her departure from stated policy before doing so. Due to the lack 

of any mention in the record of the best efforts defense beyond the initial form letter, the FEC disregarded 

its own interpretation of its statutory authority and thus behaved in an arbitrary and capricious manner. 

IV. Conclusion.

For the above reasons Plaintiff Conway for Senate respectfully requests that this court enter an 

order granting Plaintiff’s Motion for Summary Judgment. 

Respectfully submitted,

DENTON & KEULER, LLP

P.O. Box 929

Paducah, KY 42002-0929

Tel. No.: (270) 443-8253

Fax No.: (270) 442-6000

By: /s/ Glenn D. Denton ______________________

Glenn D. Denton 

ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing with the clerk of the court by using 

the CM/ECF system on this 15th day of January, 2013, which will send a notice of electronic filing of the 

above to all counsel of record as follows:

ANTHONY HERMAN

DAVID KOLKER

LISA STEVENSON

ADAV NOTI

BENJAMIN A STREETER III

999 E STREET NW

WASHINGTON DC 20463

Attorneys for Defendant

By: /s/ Glenn D. Denton ________

 Glenn D. Denton

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