UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

)

GARCIA FOR CONGRESS and )

SWATI PATEL, )

)

Plaintiffs, ) Civ. No. 3:13-cv-2401-K 

)

v. )

) REPLY 

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY TO PLAINTIFFS’ 

RESPONSE TO THE COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson 

Deputy General Counsel – Law

Bar No. 457628 (D.C.)

Kevin Deeley 

Acting Associate General Counsel

Bar No. 644486 (MA)

Erin Chlopak

Acting Assistant General Counsel 

Bar No. 496370 (D.C.)

Benjamin A. Streeter III 

Attorney

Bar No. 6181655 (IL)

FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

December 20, 2013 (202) 694-1650

Case 3:13-cv-02401-K Document 30 Filed 12/20/13 Page 1 of 20 PageID 273
i

Table of Contents

Page

I. THE GARCIA COMMITTEE MISUNDERSTANDS THE LIMITED 

ROLE OF A COURT CONDUCTING JUDICIAL REVIEW OF AN 

AGENCY DECISION ........................................................................................2

A. Arbitrary & Capricious Standard ...........................................................2

B. Judicial Review is Confined to Those Matters Presented to the FEC

During the Administrative Proceedings..................................................3

II. THE ADMINISTRATIVE FINE CHALLENGED HERE WAS 

REASONABLE AND THE GARCIA COMMITTEE HAS FAILED TO 

DEMONSTRATE OTHERWISE.......................................................................6

A. The Garcia Committee Has No Best-Efforts Defense ............................6

1. The Treasurer’s Inexperience and Pregnancy/Maternity Leave 

Are Not “Reasonably Unforeseen” Circumstances That Can 

Trigger the Best-Efforts Defense ......................................................7

2. The Committee’s Hiring of a Contractor to Assist With Its 

Compliance Obligations Fails to Demonstrate Entitlement to 

the Best-Efforts Defense ...................................................................8 

B. The Committee’s Statutory Reporting Obligations Are Not 

Contingent Upon Successful Transmission of Courtesy 

Email Reminders.....................................................................................8 

C. Mr. Garcia’s Loans to His Campaign Are Indisputably Reportable 

“Contributions” .....................................................................................10 

D. The Challenged Civil Penalty Was Assessed Pursuant to the 

Statutory Administrative Fines Program and the Formula Set Forth in 

Commission Regulations......................................................................12

 CONCLUSION...........................................................................................................14

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Table of Authorities

Page

Cases

Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005) ...................12, 13

Bass v. Dep’t of Agric., 211 F.3d 959 (5th Cir. 2000)....................................................4

BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003) ..........................................5

Buffalo Cent. Terminal v. United States, 886 F. Supp. 1031 (W.D.N.Y.1995)............10

Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977)...............................................10

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981)..............................................................11

Cox for U.S. Senate Comm., Inc. v. FEC, Civ. No. 03C3715, 

2004 WL 783435 (N.D. Ill. Jan. 22, 2004).............................................................11

Cunningham v. FEC, No. IP-01-0897-C-B/S, 2002 WL 31431557 (S.D. Ind. 

Oct. 28, 2002) ......................................................................................................2, 5

Dent v. Holder, 627 F.3d 365 (9th Cir. 2010)...............................................................10

Dutka v. AIG Ins. Co., 573 F.3d 210 (5th Cir. 2009)......................................................3

Funk v. Stryker Corp., 631 F.3d 777 (5th Cir. 2011) ...................................................10

Gulf Restoration Network, Inc. v. Salazar, 683 F.3d 158 (5th Cir. 2012)......................4

Herron for Congress v. FEC, 903 F. Supp. 2d 9 (D.D.C. 2012)..................................11

Krichbaum v. U.S. Forest Servs., 973 F. Supp. 585 (W.D. Va. 1997) .........................10

Lacson v. Holder, 428 Fed. Appx. 750 (9th Cir. 2011)................................................10

Lising v. INS, 124 F.3d 996 (9th Cir. 1997)..................................................................10

Luminant Generation Co., LLC. v. EPA, 714 F.3d 841 (5th Cir. 2013).........................4

Case 3:13-cv-02401-K Document 30 Filed 12/20/13 Page 3 of 20 PageID 275
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Medina Cnty. Env’tl Action Ass’n v. Surface Transp. Bd.,

602 F.3d 687 (5th Cir. 2010) ....................................................................................4

Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221 (D.C. Cir. 2007)..................3

Pension Benefit Guar. Corp. v. Jones Mem. Hosp., 374 F.3d 362 (5th Cir. 2004) ........2

Public Citizen, Inc. v. EPA, 343 F.3d 449 (5th Cir. 2003) .............................................4

Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143 (1946) ..................................5

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)...............................5

Statutes and Regulations

2 U.S.C. § 431(8)(A)(i).................................................................................................11

2 U.S.C. § 432(e)(2)......................................................................................................11

2 U.S.C. § 434(a) ......................................................................................................8, 12

2 U.S.C. § 434(a)(6)(A)..................................................................................................9

2 U.S.C. § 437(g)..........................................................................................................13

2 U.S.C. § 441(a)(a)(2)(A)............................................................................................13

5 U.S.C. § 706(2)(A),(C) ................................................................................................3

11 CFR § 100.52(b)(2)..................................................................................................11 

11 C.F.R. § 111.30........................................................................................................13

11 C.F.R. § 111.31........................................................................................................13

11 C.F.R. § 111.35(b)(1)-(3)...........................................................................................6

11 C.F.R. § 111.35(c)(1).................................................................................................6

11 C.F.R. § 111.35(c)(2).................................................................................................6

11 C.F.R. § 111.35(c)(3).................................................................................................6

11 C.F.R. § 111.35(d) .....................................................................................................6

11 C.F.R. § 111.35(d)(1).................................................................................................7

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11 C.F.R. § 111.35(d)(2).................................................................................................8

11 C.F.R. § 111.35(d)(3).............................................................................................7, 8

11 C.F.R. § 111.38..........................................................................................................4 

11 C.F.R. § 111.44(a)(1)...............................................................................................12

H.R. Rep. No. 106-295 (1999)......................................................................................12

Miscellaneous 

65 Cong. Rec. H5622 (daily ed. July 15, 1999) (statement of Rep. Maloney).............13

Statement of Organization, Garcia for Congress, Mar. 7, 2012, 

http://docquery.fec.gov/pdf/924/12030752924/12030752924.pdf.....................9

Statement of Organization (Amended), Garcia for Congress, Apr. 9, 2012, 

http:// docquery.fec.gov/pdf/813/12951365813/12951365813.pdf. .................10

Case 3:13-cv-02401-K Document 30 Filed 12/20/13 Page 5 of 20 PageID 277
The Federal Election Commission hereby responds to Plaintiffs’ Brief in Support of their 

Response to Defendant’s Motion for Summary Judgment (“Response”). (Doc. No. 29-2.) As 

demonstrated in the FEC’s opening brief, the FEC acted reasonably when it assessed the Garcia 

for Congress campaign and its treasurer (collectively, “the Garcia Committee” or “the 

Committee”) with an administrative fine of $15,220 for their failure to timely file two mandatory 

campaign-finance disclosure notices in May 2012. In its administrative challenge, the Garcia 

Committee objected to the fine based on a claimed “unintentional clerical error on the part of the 

Committee,” concerns about how a “fine could delay the Committees its (sic) efforts to wind 

down and terminate the campaign,” and a plea for “leniency.” (Administrative Record (“AR”) 

007.) As the Commission explained in its opening brief (FEC’s Mem. of Law in Support of Its 

Motion for Summary Judgment (Doc. No. 17) at 10 (“FEC Brief”)), under the “highly 

deferential” standard of review applicable to cases, like this one, seeking judicial review of a 

final agency decision, the FEC’s administrative determination was clearly reasonable and neither 

arbitrary nor capricious. 

The Garcia Committee’s Response to the FEC’s summary judgment brief ignores the 

applicable legal standard, does not even attempt to refute the FEC’s legal analysis, and appears 

to abandon the Committee’s original bases for challenging the FEC’s administrative 

determination. Instead, the Committee offers a variety of new allegations and arguments never 

presented to the FEC during the administrative phase of this case — arguments that are both 

irrelevant and lack merit. Regardless, the Committee’s failure to raise such matters with the 

Commission in the first instance means that they have been waived and should not even be 

considered by this Court.1

 

1

In the interest of a complete and accurate record, the Commission notes that the Garcia 

Committee’s two motions seeking additional time to respond to the Commission’s summary 

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The Garcia Committee has failed to advance any basis for this Court to find the 

challenged administrative fine unreasonable. As the Commission clearly demonstrated in its 

opening brief and as further detailed below, the administrative fine was reasonable and should be 

upheld by this Court. 

THE GARCIA COMMITTEE MISUNDERSTANDS THE LIMITED ROLE OF A 

COURT CONDUCTING JUDICIAL REVIEW OF AN AGENCY DECISION

A. Arbitrary & Capricious Standard

This case seeks judicial review of an administrative determination by a federal agency. It 

is not a typical civil dispute between parties to be resolved by the court in the first instance. Yet 

the Garcia Committee’s three-page discussion (Response at 5-7) of the general summary 

judgment standard completely ignores the relevant inquiry in cases like this one, in which the 

district court’s role is solely to determine whether, “on the basis of the administrative record, . . . 

an agency reasonably could have found the facts as it did.” Cunningham v. FEC, No. IP-01-

0897-C-B/S, 2002 WL 31431557, at *3 (S.D. Ind. Oct. 28, 2002) (citations omitted); see Pension 

Benefit Guar. Corp. v. Jones Mem’l. Hosp., 374 F.3d 362, 366-67 (5th Cir. 2004) (explaining 

that judicial review of administrative determinations “focuses on whether an agency articulated a 

rational connection between the facts found and the decision made”).

 

judgment motion (Docket Nos. 25 & 27) misrepresented the Commission’s position regarding 

the Committee’s requested extensions. In fact, the Committee never conferred with the 

Commission about its intention to request a 90-day extension, and the Commission did not agree 

to such a request. Nor did the Commission ever indicate that it would need three months to 

complete its Reply. Instead, in late September, undersigned counsel informed the Committee 

that the Commission was willing to consider any reasonable extension of the Committee’s time 

to respond to the summary judgment motion, provided that the Committee was willing to agree 

to a similar extension of time, if any, for the Commission’s reply. The parties never had any 

further discussion about extensions, in part because the Garcia Committee’s first extension 

request occurred during the government shutdown. 

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As the Commission explained in its opening brief (FEC Br. at 10-11), this Court may set 

aside the Commission’s administrative-fine determination only if that determination was 

“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). The arbitrary and capricious standard of review is “highly deferential” and 

“presumes the validity of agency action.” Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 

1221, 1228 (D.C. Cir. 2007) (citation omitted). Where, as here, an agency’s determination is 

supported by “substantial evidence,” i.e., “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion,” the determination is not arbitrary or capricious. 

Dutka v. AIG Life Ins. Co., 573 F.3d 210, 213 (5th Cir. 2009) (citations and quotations omitted). 

The Garcia Committee’s cases (Response at 5-7) discussing the summary judgment 

standard outside the review-of-an-agency-decision context are inapposite. And the Committee’s 

discussion of those irrelevant authorities fails to identify any basis for this Court to invalidate the 

Commission’s administrative fine based on the administrative record in this case.

B. Judicial Review is Confined to Those Matters Presented to the FEC During 

the Administrative Proceedings

The Garcia Committee not only misunderstands the applicable legal standard, it breaches 

an important aspect of that standard by asking this Court to consider new allegations and 

arguments never presented to the Commission during the underlying administrative proceedings. 

But as the Commission noted in its opening brief (FEC Br. at 14 n.4), it is well settled that 

plaintiffs seeking judicial review of an administrative determination are deemed to have waived 

any arguments not presented to the agency during the administrative process under review. 

“Absent exceptional circumstances, a party cannot judicially challenge agency action on grounds 

not presented to the agency at the appropriate time during the administrative proceeding.” 

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Public Citizen, Inc. v. EPA, 343 F.3d 449, 461 (5th Cir. 2003); see, e.g., Gulf Restoration 

Network, Inc. v. Salazar, 683 F.3d 158, 174-75 (5th Cir. 2012) (“Under ordinary principles of 

administrative law a reviewing court will not consider arguments that a party failed to raise in [a] 

timely fashion before an administrative agency.”) (internal quotation marks omitted); Bass v. 

Dep’t of Agric., 211 F.3d 959, 964 (5th Cir. 2000) (per curiam) (“As a general rule, in 

considering a petition for review from a final agency order, the courts will not consider questions 

of law which were neither presented to nor passed on by the agency.”) (internal quotation marks 

omitted). The Commission’s regulations, moreover, specifically put all administrative-fines 

respondents on notice that “failure to raise an argument in a timely fashion during the 

administrative process” constitutes “a waiver of the respondent’s right to present such argument 

in a petition to the district court.”2 11 C.F.R. § 111.38. 

This rule makes sense. Otherwise, a federal district court “would ‘usurp[ ] the agency’s 

function’ and ‘deprive the [agency] of an opportunity to consider the matter, make its ruling, and 

 

2

The Garcia Committee’s purported attempt to supplement the administrative record in 

this case through its attachment of the December 9, 2013 affidavit of its treasurer (Docket No. 

29-3) is also improper. “Supplementation of the administrative record is not allowed unless the 

moving party demonstrates unusual circumstances justifying a departure from the general 

presumption that review is limited to the record compiled by the agency.” Medina County Envt’l 

Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010) (internal quotation marks 

omitted); Luminant Generation Co., LLC. v. EPA, 714 F.3d 841, 850 (5th Cir.) cert. denied, 134 

S. Ct. 387 (2013) (“The focal point for judicial review should be the administrative record 

already in existence, not some new record made initially in the reviewing court.”) (internal 

quotation marks omitted). The Committee has not even attempted to suggest that any of the 

three factors that would allow supplementation of an agency’s administrative record exist in this 

case. See id. at 849 -50 (listing such factors as 1) an agency’s deliberate or negligent exclusion 

of documents that may have been adverse to its decision; 2) the district court’s need to 

supplement the record with “background information” in order to determine whether the agency 

considered all of the relevant factors; and 3) an agency’s failure to explain administrative action 

so as to frustrate judicial review). In any event, as discussed infra at pp. 6 - 10 & 11-12, the 

Patel Affidavit only undermines the Committee’s arguments that the Commission’s 

administrative determination was unreasonable.

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state the reasons for its action.’” BCCA Appeal Group v. EPA, 355 F.3d 817, 828-29 (5th Cir. 

2003) (quoting Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155 (1946)); see 

Cunningham, 2002 WL 31431557, at *4 (“Simple fairness to those who are engaged in the tasks 

of administration, and to litigants, requires as a general rule that courts should not topple over 

administrative decisions unless the administrative body not only has erred but has erred against

objection made at the time appropriate under its practice.” (quoting United States v. L.A. Tucker 

Truck Lines, Inc., 344 U.S. 33, 37 (1952); (emphasis added)). “Thus, any objections not made 

before the administrative agency are subsequently waived before the courts.” Cunningham, 

2002 WL 31431557, at *4 (citation and footnote omitted). 

The Garcia Committee has waived the following arguments, each of which it raised for 

the first time in its summary judgment Response: (a) attempts to invoke the best-efforts defense 

based on the alleged inexperience, pregnancy, and maternity leave of the Garcia Committee’s 

treasurer (Response at 8-9; Patel Aff. at 2-3), and the Committee’s alleged reliance on the advice 

or assistance of a third-party vendor (Response at 8; Patel Aff. at 2); (b) attempts to mitigate 

responsibility for the reporting violations based on the Commission’s emailing of a courtesy 

reminder notice to a purportedly incorrect email address for the Committee (Response at 7-8; 

Patel Aff. at 3); (c) an attempt to identify as an unresolved legal question whether a candidate’s 

loans to his campaign committee constitute campaign contributions subject to Federal Election 

Campaign Act (“FECA”) reporting requirements (Response at 9; Patel Aff. at 3); and (d) alleged 

inconsistencies between the fine imposed here and the decade-old conciliation of an unrelated 

Commission matter that did not meet the criteria for the administrative-fine program (Response 

at 10-11).3 

 

3

Even if the Garcia Committee had not waived its right to pursue these new arguments, its 

reliance on them now would be fruitless because they lack any merit. See infra Part II.

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II. THE ADMINISTRATIVE FINE CHALLENGED HERE WAS REASONABLE 

AND THE GARCIA COMMITTEE HAS FAILED TO DEMONSTRATE 

OTHERWISE

A. The Garcia Committee Has No Best-Efforts Defense

As the Commission explained in its opening brief (FEC Br. at 5), a political committee 

may challenge a Commission finding of a reporting violation by: (1) identifying factual errors in 

the Commission’s finding (such as if the report was, in fact, timely filed); (2) demonstrating that 

the calculation of the penalty was inaccurate; or (3) showing that “the respondent used best 

efforts to file in a timely manner [but] was prevented from [doing so] by reasonably unforeseen 

circumstances that were beyond the control of the respondent; and . . . [t]he respondent filed no 

later than 24 hours after the end of these circumstances.” 11 C.F.R. § 111.35(b)(1)-(3). The 

Garcia Committee has not identified any factual error in the Commission’s administrative 

finding nor alleged that the fine was inaccurately calculated, so it has thus conceded the accuracy 

and reasonableness of the underlying administrative determination on these issues. 

The Committee instead attempts to demonstrate (Response at 7-9) its use of “best efforts” 

to comply with its statutory obligations, but it fails to identify any “reasonably unforeseen 

circumstances” as that term is defined in Commission regulations. Such circumstances include 

systemic failures such as a breakdown of Commission computers or Commission-provided 

software, 11 C.F.R. § 111.35(c)(1); widespread disruptions to the internet (not specific to the 

respondent or its internet service provider), 11 C.F.R. § 111.35(c)(2); or severe weather or a 

disaster-related incident, 11 C.F.R. § 111.35(c)(3). The Commission’s regulations categorically 

exclude from the best-efforts defense any errors that arise from negligence; delays caused by 

committee vendors or contractors; illness, inexperience, or unavailability of the treasurer or other 

staff; and a committee’s failure to know filing dates. See 11 C.F.R. § 111.35(d). None of the 

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Garcia Committee’s various explanations for its failure to timely file the 48-hour notices —

including its newly minted explanations improperly presented for the first time in the 

Committee’s summary judgment Response — satisfies the regulatory requirements for the bestefforts defense. 

First, by abandoning its only best-efforts argument to the Commission — based on a 

claimed “unintentional clerical error on the part of the Committee” (AR007) — the Committee 

apparently has conceded that the only best-efforts argument properly before this court lacks any 

merit. (See FEC Br. at 12-14.)

Second, as explained below, the Committee’s newly asserted grounds for relying on the 

best-efforts defense, in addition to being waived, see supra Part I.B, are irrelevant and fail to 

provide any basis for challenging the administrative fine here. 

1. The Treasurer’s Inexperience and Pregnancy/Maternity Leave Are 

Not “Reasonably Unforeseen” Circumstances That Can Trigger the 

Best-Efforts Defense 

Even if, as the Garcia Committee now suggests (Patel Aff. at 1-3), its treasurer Ms. Patel 

lacked experience or knowledge of federal campaign finance rules, Commission regulations 

explicitly designate “[n]egligence” and “inexperience . . . of the treasurer or other staff” as 

“[c]ircumstances that will not be considered reasonably unforeseen and beyond the control” of 

the respondent committee. Compare Patel Aff. at 1-3, with 11 C.F.R. § 111.35(d)(1), (3). 

Section 111.35(d)(3) of the Commission’s regulations likewise excludes “[i]llness . . . or 

unavailability of the treasurer” as “unforeseen circumstances” that can trigger the best-efforts 

defense. Compare Response at 8-9 (citing treasurer’s “unexpected pregnancy” and “maternity 

leave” as purported “unforeseen circumstances” that “made it difficult, if not impossible” for Ms. 

Patel “to work effectively in May 2012,” when the Committee’s two 48-hour disclosure notices 

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regarding the candidate’s loans to his committee were due), with 11 C.F.R. § 111.35(d)(3) 

(expressly listing illness and unavailability of treasurer as circumstances that will not be 

considered reasonably unforeseen). 

2. The Committee’s Hiring of a Contractor to Assist With Its 

Compliance Obligations Fails to Demonstrate Entitlement to the BestEfforts Defense 

Although it never raised the issue with the Commission, the Committee now asserts that 

it hired a compliance consultant to comply with FEC rules (Response at 8), but it utterly fails to 

explain how that alleged fact is relevant to any best-efforts argument. Commission regulations 

exclude “[d]elays caused by committee vendors or contractors,” 11 C.F.R. § 111.35(d)(2), so 

even if the Committee intended to suggest that its compliance consultant was responsible for its 

reporting violations (and even if such an argument were not waived, see supra Part I.B), such a 

claim would be insufficient to trigger the best-efforts defense. 

B. The Committee’s Statutory Reporting Obligations Are Not Contingent 

Upon Successful Transmission of Courtesy Email Reminders 

The Garcia Committee appears to argue (Response at 7-8; Patel Aff. at 3) that its 

responsibility for failing to timely file two statutorily mandated campaign-finance disclosure 

notices is somehow mitigated by its treasurer’s assertion that “there is no reason to believe Mr. 

Garcia ever received” a courtesy email from the Commission reminding the Committee of 

upcoming reporting obligations. This argument is fatally flawed for at least three reasons. 

First, the argument was never presented to the Commission and so it is not properly 

before the Court. See supra Part I.B. 

Second, even if the argument had not been waived, it lacks any merit. The Committee’s 

campaign-finance reporting obligations are mandated by statute. See generally 2 U.S.C. 

§ 434(a); FEC Br. at 2. In particular, the Committee’s statutory obligation to report to the 

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Commission in writing its receipt of “any contribution of $1,000 or more . . . after the 20th day, 

but more than 48 hours before, any election” and to do so “within 48 hours after the receipt of 

such contribution,” 2 U.S.C. § 434(a)(6)(A), clearly does not depend upon the Commission’s 

successful transmission of a notice reminding the Committee of its statutory reporting 

obligations. Nor do the Act or Commission regulations even require such reminder notices to be 

sent. Indeed, as is clearly stated in the Primary Election Report Notice, such emails are 

distributed only “as a courtesy” (AR014); “The Commission provides reminders of upcoming 

filing dates as a courtesy to help committees comply with the filing deadlines set forth in the Act 

and Commission regulations. Committee treasurers must comply with all applicable filing 

deadlines established by law, and the lack of prior notice does not constitute an excuse for 

failing to comply with any filing deadline.” (AR016 (emphasis added).)

Third, even if the argument were not meritless, its factual premise — the alleged lack of 

“any evidence” that the email address “garciadtx@gmail.com” existed for Garcia for Congress or 

anyone else in 2012 — is belied by the administrative and public record. As documented in a 

Commission memorandum related to the Garcia Committee’s underlying administrative 

challenge (AR013), the Committee “amended its Statement of Organization on April 9, 2012, to 

disclose a number of changes, including a new committee email address: garciadtx@gmail.com.” 

Indeed, although the Garcia Committee’s original Statement of Organization, filed on March 7, 

2012, listed garciadtx@aol.com as the Committee’s email address, the Committee filed an amended 

Statement of Organization one month later, on April 9, 2012, and listed on page 1 of that filing a 

new email address: garciadtx@gmail.com. Compare Statement of Organization, Garcia for 

Congress, Mar. 7, 2012, http://docquery.fec.gov/pdf/924/12030752924/12030752924.pdf, with 

Statement of Organization (Amended), Garcia for Congress, Apr. 9, 2012, 

Case 3:13-cv-02401-K Document 30 Filed 12/20/13 Page 14 of 20 PageID 286
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http://docquery.fec.gov/pdf/813/12951365813/12951365813.pdf.4 The Committee’s treasurer, 

Ms. Patel, electronically signed the amended form. Thus, when the Commission emailed a 

courtesy reminder of the upcoming reporting deadlines to the Garcia Committee on April 25, 

2012 (see AR014-020), it used the email address provided to the Commission by the Committee

in its most recent FEC filing (AR013).

C. Mr. Garcia’s Loans to His Campaign Are Indisputably Reportable 

“Contributions” 

Even if the Garcia Committee had not waived its new argument (Response at 9) about 

whether “personal loans” are reportable “contributions,” that argument plainly lacks any merit. 

FECA explicitly defines “contribution” as “any gift, subscription, loan, advance, or deposit of 

money or anything of value made by any person for the purpose of influencing any election for 

 

4 Although the Garcia Committee’s purported supplementation of the administrative record 

through an affidavit asserting new allegations and arguments is improper, see supra note 2, the 

Court “may ‘tak[e] judicial notice of the [Commission’s] own records,’” Lacson v. Holder, 428 

Fed. Appx. 750, 751 n.1 (9th Cir. 2011) (quoting Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 

2010)). See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (recognizing general 

principle that district courts may take “judicial notice of publicly-available documents . . . which 

[a]re matters of public record directly relevant to the issue at hand”). As the Ninth Circuit has 

explained, whereas the general rule limiting judicial review to the administrative record is 

“intended to ensure that petitioners present all outside documents, reports, or information during 

the course of the administrative proceedings and not offer them for the first time before th[e] 

court,” that principle is inapplicable to “a court’s taking judicial notice of the agency’s own 

records,” Lising v. INS, 124 F.3d 996, 998 (9th Cir. 1997), particularly where, as here, the 

“augmenting materials [a]re merely explanatory of the original record” and “clarif[y] a 

[purported] dispute” regarding the original record. Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 

(9th Cir. 1977). See also, e.g., Krichbaum v. U.S. Forest Servs., 973 F. Supp. 585, 589 (W.D. 

Va. 1997) (explaining that courts reviewing agency decisions may consider documents that the 

agency relied on outside administrative record that provide “background information [] 

necessary to clarify technical issues”); Buffalo Cent. Terminal v. United States, 886 F. Supp. 

1031, 1045–46 (W.D.N.Y. 1995) (“[T]he court is permitted to go outside of the administrative 

record to consider background evidence to clarify the information before the agency at the time 

of its decision.”).

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Federal office . . . .” 2 U.S.C. § 431(8)(A)(i) (emphasis added).5 The Act further provides that 

any candidate for federal office, “who receives a contribution, or any loan for use in connection 

with the campaign of such candidate for election, . . . shall be considered, for purposes of this 

Act, as having received the contribution or loan, . . . as the case may be, as an agent of the 

authorized committee or committees of such candidate.” 2 U.S.C. § 432(e)(2); see also Herron 

for Congress v. FEC, 903 F. Supp. 2d 9, 11-12 (D.D.C. 2012) (describing candidate committees’ 

obligations under FECA and Commission regulations to make certain disclosures related to loans 

they receive). FEC regulations also specify that “[a] loan is a contribution at the time it is made 

and is a contribution to the extent that it remains unpaid.” 11 CFR § 100.52(b)(2). 

Nothing in this unambiguous statutory language carves out any special exemption for 

personal loans by candidates to their authorized campaigns: a loan from any person, including 

the candidate, is a contribution. Nor can there be any doubt that the purpose of the loan was to 

influence a federal election; to the contrary, the Committee’s treasurer asserts (Patel Aff. at 2) 

that the funds were loaned to pay campaign staff and expenses. 

In addition to being legally deficient, the Committee’s attempt to manufacture a legal 

question about whether Mr. Garcia’s loans were reportable contributions (see Response at 9) is 

undermined by Ms. Patel’s representations in her affidavit that the Committee’s hired 

compliance consultant “confirmed that [the Committee was] late in filing the requisite disclosure 

 

5

See also Cal. Med. Ass’n v. FEC, 453 U.S. 182, 198 n.19 (1981) (“The Act defines 

‘contribution’ broadly to include ‘any gift, subscription, loan, advance, or deposit of money or 

anything of value . . . or . . . the payment by any person of compensation for the personal services 

of another person which are rendered to a political committee without charge for any purpose.”) 

(quoting 2 U.S.C. 431(8)(A)(i), (ii); emphasis added); Cox for U.S. Senate Comm., Inc. v. FEC, 

Civ. No. 03C3715, 2004 WL 783435, at *14 (N.D. Ill. Jan. 22, 2004) (declining to modify or set 

aside $22,150 civil penalty where plaintiffs failed to file 48-hour reports for candidate loans). 

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12

notifications” about Mr. Garcia’s loans to his campaign and that ultimately Ms. Patel “knew that 

those disclosure notifications should have been filed by May 20 and 26, 2012.” (Patel Aff. at 3.) 

D. The Challenged Civil Penalty Was Assessed Pursuant to the Statutory 

Administrative Fines Program and the Formula Set Forth in Commission 

Regulations

As detailed in the Commission’s opening brief and not disputed by the Garcia 

Committee, the civil penalty challenged here was imposed by the Commission pursuant to the 

streamlined enforcement procedures statutorily designated for violations of FECA’s periodic 

filing requirements. (See FEC Br. at 3-4 (describing amendments to FECA creating statutory 

administrative fines program).) Unlike the enforcement process applicable to other violations of 

the Act, Congress specifically authorized the Commission to directly assess civil money 

penalties for violations of 2 U.S.C. § 434(a), while eliminating steps such as the probable-cause 

determination and conciliation period that apply to other FEC enforcement matters. (See FEC 

Br. at 4 (citing H.R. Rep. No. 106-295, at 11 (1999).) The administrative fine challenged here —

$15,200 for failure to timely report two campaign loans of $100,000 and $50,000, respectively 

— was calculated pursuant to 11 C.F.R. § 111.44(a)(1), which provides for a penalty of $110 

plus ten percent of the amount of the contribution not timely reported. (FEC Br. at 8; AR030.) 

The Garcia Committee fails to identify anything unreasonable about the Commission’s 

administrative fine determination or calculation.

Instead, the Committee offers (Response at 10-11) another improper argument that it 

never raised during the administrative proceedings, see supra Part I.B — that the challenged fine 

was arbitrary or capricious because the Garcia Committee was not afforded an opportunity to 

negotiate the amount of the proposed penalty. In support of this argument, the Committee 

identifies Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005), which concerned 

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13

the Commission’s settlement of alleged violations by another committee of other provisions of 

FECA that are not part of the statutory administrative fines program. Alliance for Democracy, 

362 F. Supp. 2d at 139-40. In particular, Alliance for Democracy concerned allegedly excessive 

contributions in violation of 2 U.S.C. § 441(a)(a)(2)(A), and related alleged reporting violations 

of section 434(b), which governs the required contents of reports required under section 434(a). 

362 F. Supp. 2d at 140-41, 146 n.8. Those allegations are subject to the Commission’s 

traditional enforcement procedures, which include a probable-cause determination and 

conciliation process. See generally 2 U.S.C. § 437(g). 

This case, by contrast, concerns the Garcia Committee’s violation of section 434(a), 

which generally outlines who must file campaign-finance disclosure reports and when such 

reports must be filed. As explained above, violations of section 434(a) are generally not subject 

to the traditional enforcement procedures but instead are handled under the streamlined 

administrative-fines scheme, 11 C.F.R. §§ 111.30-111.31, which does not include a conciliation 

process and which, “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). Thus, both this matter and Alliance for Democracy were treated appropriately 

under the particular regulatory scheme governing the violations alleged. The Garcia 

Committee’s reliance on Alliance for Democracy is clearly misplaced, and the Committee has 

failed to demonstrate any basis for finding that the Commission’s administrative determination 

here was arbitrary, capricious, or otherwise unreasonable.

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CONCLUSION

For the reasons stated above and in the Commission’s opening brief, the Court should 

grant the Commission’s motion for summary judgment. 

Respectfully submitted,

Lisa J. Stevenson 

Deputy General Counsel – Law

Bar No. 457628 (D.C.)

Kevin Deeley 

Acting Associate General Counsel

Bar No. 644486 (MA)

Erin Chlopak

Acting Assistant General Counsel 

Bar No. 496370 (D.C.)

_s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney

Bar No. 6181655 (IL)

FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

December 20, 2013 (202) 694-1650 

Case 3:13-cv-02401-K Document 30 Filed 12/20/13 Page 19 of 20 PageID 291
CERTIFICATE OF SERVICE

I, Benjamin A. Streeter III, an attorney of record, hereby certify that on this 20th day of 

December, 2013, I electronically submitted the foregoing document with the Clerk of the Court 

for the Northern District of Texas, using the electronic case filing system. I hereby certify that I 

have served all counsel of record electronically or by another manner authorized by Federal Rule 

of Civil Procedure 5(b)(2). 

s/ Benjamin A. Streeter III

Benjamin A. Streeter III

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