UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

BOSTON DIVISION 

___________________________________ 

 ) 

ROBINSON COMMITTEE, LLC and ) 

JACK E. ROBINSON, ) 

 ) Case Number: 1:10-cv-11335-GAO 

Petitioners, ) District Judge George A. O’Toole, Jr. 

) 

v. ) MEMORANDUM OF LAW

 ) IN SUPPORT OF RENEWED 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Respondent. ) 

___________________________________ ) 

RESPONDENT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

OF LAW IN SUPPORT OF ITS RENEWED MOTION TO DISMISS 

 Petitioners Robinson Committee, LLC and Jack E. Robinson do not dispute that they 

filed a Year End Report concerning the Committee’s 2009 campaign finance activity 81 days 

later than required by law. Consistent with its regulations and delegated authority from 

Congress, the Federal Election Commission (“FEC” or “Commission”) assessed a civil money 

penalty against petitioners. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court 

should dismiss petitioners’ action seeking review of the FEC’s final determination, because they 

cannot demonstrate that the Commission’s decision — which is entitled to great deference — 

was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Commission 

correctly rejected petitioners’ meritless argument that they were prevented from filing on time 

because Robinson first had to file his tax return and respond to an FEC notice regarding a 

separate matter. 

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I. BACKGROUND 

A. The Parties 

Respondent FEC is an independent agency of the United States government with 

exclusive civil jurisdiction over the administration, interpretation, and enforcement of the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57. See generally 2 U.S.C. 

§§ 437c(b)(1), 437d(a), and 437g. 

Petitioner Jack E. Robinson, a resident of Massachusetts, was a candidate in the 

December 8, 2009 Republican primary election for U.S. Senate in Massachusetts. (See Pet. ¶ 1.) 

Robinson, who paid for his campaign exclusively with his own funds, lost the primary to Scott 

Brown, the eventual winner of the general election. (See id. ¶¶ 1, 14.) Robinson is the treasurer 

of his principal federal campaign committee, petitioner Robinson Committee, LLC. (See id. ¶ 2.) 

B. Statutory and Regulatory Background 

 1. FECA’s Reporting Requirements 

 Congress enacted FECA as part of a comprehensive system of regulating the financing of 

federal election campaigns. Among other things, FECA requires detailed public disclosure of 

the finances of political committees — including the campaign committees of House and Senate 

candidates. See 2 U.S.C. §§ 432-34. The Supreme Court has explained that FECA’s reporting 

requirements “curb[] the evils of campaign ignorance and corruption that Congress found to 

exist” by directly serving at least three substantial government interests: First, they “provide[] 

the electorate with information” on the flow of campaign money “in order to aid the voters in 

evaluating those who seek federal office”; second, they “deter actual corruption and avoid the 

appearance of corruption by exposing large contributions and expenditures to the light of 

publicity”; and third, the reporting requirements “are an essential means of gathering the data 

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necessary to detect violations of [FECA’s] contributions limitations.” Buckley v. Valeo, 424 U.S. 

1, 66-68 (1976). 

To those ends, the FECA reporting requirements relevant here require each federal 

candidate to have a principal campaign committee, see 2 U.S.C. § 432(e)(1), and the treasurer of 

each committee is required to file with the FEC periodic reports that disclose the committee’s 

finances, see id. § 434(a)-(b). The principal campaign committees of Senate candidates must file 

their disclosure reports with the Secretary of the Senate, who must promptly forward copies of 

the reports to the FEC. See id. § 432(g). The FEC places these reports on the public record 

within 48 hours of receipt. See id. § 438(a)(4). 

 2. Administrative Fines Program 

 “The administrative fines program was established by Congress in 1999, and ‘creates a 

simplified procedure for the FEC to administratively handle reporting violations.’” Lovely v. 

FEC, 307 F. Supp. 2d 294, 299 (D. Mass. 2004) (quoting H.R. Rep. No. 106-295, at 11 (1999)). 

The Commission may assess civil money penalties against principal campaign committees 

whose treasurers fail to file timely reports required by 2 U.S.C. § 434(a). See 2 U.S.C. 

§ 437g(a)(4)(C)(i). When a vote of the six-member Commission determines that there is reason 

to believe (“RTB”) a respondent has violated 2 U.S.C. § 434(a), the FEC notifies the respondent 

of the RTB finding, the factual and legal basis underlying the finding, the proposed civil penalty, 

and the respondent’s right to challenge the decision. See 11 C.F.R. § 111.32. The proposed civil 

penalty is calculated pursuant to a schedule, which takes account of whether the untimely report 

was election sensitive, how late the untimely report was filed (if filed at all), the level of 

monetary activity in the untimely report, and the respondent’s number of previous reporting 

violations. See id. § 111.43. 

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 The respondent may challenge the Commission’s RTB finding in writing within 40 days 

of being notified, but only on three grounds specified in the FEC’s regulations: (1) if the RTB 

finding was based on a factual error; (2) if the FEC improperly calculated the civil money 

penalty; or (3) if the committee and its treasurer used “best efforts to file in a timely manner.” 

See 11 C.F.R. § 111.35(b). An FEC Reviewing Officer reviews the respondent’s challenge and 

the administrative record, and submits a written recommendation to the Commission. See id. 

§ 111.36(b), (e). The respondent has 10 days to respond to the reviewing officer 

recommendation, but cannot raise any new arguments. See id. § 111.36(f). The Commission 

then proceeds to a final determination of whether the respondent violated 2 U.S.C. § 434(a), and 

whether to assess a civil penalty. See 11 C.F.R. § 111.37. 

 If the Commission makes a final determination finding a violation and assessing a 

penalty, the respondent may petition a federal district court for judicial review. See 2 U.S.C. 

§ 437g(a)(4)(C)(iii). 

C. Factual and Administrative Background 

 Petitioners’ 2009 Year End Report of Receipts and Disbursements (“Report”), covering 

their campaign finance activity from November 19, 2009, through December 31, 2009, was due 

to be filed by January 31, 2010. See 2 U.S.C. § 434(a)(2)(A)(iii); Pet. ¶ 6. On December 28, 

2009, the FEC e-mailed a notice to petitioners reminding them of this upcoming deadline. (See 

Exh. A at 8-10 (FEC Year-End Report Notice, Dec. 28, 2009); see also id. at 3 (AF # 2122, FEC 

Reviewing Officer Recommendation, Jun. 4, 2010 (“ROR”)).)1

 Nevertheless, the FEC did not 

 

1

 On a motion to dismiss under Rule 12(b)(6), the court may consider documents 

sufficiently referred to in the complaint. Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 

45, 47 n.1 (1st Cir. 2009). Each of the documents attached as exhibits to this motion were 

referenced in the Petition. In addition, each of the documents attached as exhibits are official 

public records, which the Court may also consider on a motion to dismiss. See id. 

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receive the Report from petitioners by January 31, 2010. (See Pet. ¶ 7.) On February 17, 2010, 

the FEC mailed petitioners a notice informing them the Report was overdue. (See Exh. A at 11 

(Letter from FEC to Jack E. Robinson, Feb. 17, 2010); see also Pet. ¶ 15; Exh. A at 3 (ROR).) 

The notice also stated that there was no grace period for filing, and that the FEC may assess civil 

money penalties starting on the day following the due date for the Report. (See Exh. A at 11.) 

Petitioners did not respond to this notice. (See id. at 3.) 

 On March 25, 2010, the Commission voted unanimously to find RTB that petitioners 

violated 2 U.S.C. § 434(a), and to preliminarily assess a civil money penalty of $6,050. (See Pet. 

¶ 8; Exh. A at 12 (Letter from FEC to Jack E. Robinson, Mar. 29, 2010 (“RTB Notice”).) The 

FEC informed petitioners of the RTB finding by letter dated March 29, 2010. (See Exh. A at 12-

29 (RTB Notice); Pet. ¶ 8.) As explained in the RTB Notice, the amount of the civil penalty was 

computed through application of the Commission’s schedule of penalties, including respondents’ 

lack of previous reporting violations. (See Exh. A at 12 (citing 11 C.F.R. § 111.43).) The RTB 

Notice also informed petitioners that they could challenge the Commission’s RTB finding based 

on the three defenses specified in the regulations. (See id. at 13 (citing 11 C.F.R. § 111.35(b)).) 

Moreover, the RTB Notice warned that the failure to raise an argument in a timely fashion would 

result in a waiver of the right to assert that argument in a later petition to a federal district court. 

(See id. at 13 (citing 11 C.F.R. § 111.38).) 

On April 15, 2010, petitioners mailed the Report to the Secretary of the Senate, who 

received it on April 22, 2010 — 81 days after the January 31, 2010 deadline. (See Pet. ¶ 7.) 

Petitioners challenged the Commission’s RTB finding by letter dated April 16, 2010 (“RTB 

Challenge”). (See Exh. A at 6; Pet. ¶ 9.) Petitioners’ RTB Challenge made three assertions. 

First, it claimed that the deadline for filing the Report was effectively delayed because the FEC 

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had, in the interim, requested that petitioners submit additional information relating to reports 

they had previously filed. (See Exh. A at 6.) Second, it alleged that the FEC had improperly 

calculated the proposed civil money penalty. (See id.) Third, petitioners argued that the Report 

was delayed by the “reasonably unforeseen circumstance[]” that Robinson was unable to 

determine the total amount of loans he used to self-fund his campaign until he had calculated his 

2009 tax liability on April 15, 2010. (See id.) 

 An FEC reviewing officer reviewed petitioners’ RTB Challenge and issued a 

recommendation, dated June 4, 2010, finding that none of petitioners’ arguments satisfied the 

three defenses of 11 C.F.R. § 111.35(b), and recommending that the Commission make a final 

determination that petitioners violated 2 U.S.C. § 434(a) and assess a $6,050 penalty. (See Exh. 

A at 2-5 (ROR).) Petitioners submitted a letter to the FEC objecting to the ROR on June 18, 

2010 (“ROR Objection”). (See Exh. B; Pet. ¶¶ 10-11.) 

 On July 22, 2010, the Commission unanimously adopted the ROR, and made a final 

determination that the Robinson Committee and Robinson, in his official capacity as treasurer, 

violated 2 U.S.C. § 434(a), and assessed a civil money penalty of $6,050. (See Exh. C at 1 

(Letter from FEC to Jack E. Robinson, July 23, 2010); Pet. ¶ 12.) 

 On August 9, 2010, petitioners filed this action seeking review of the FEC’s final 

determination pursuant to 2 U.S.C. § 437g(a)(4)(C)(iii) and 11 C.F.R. § 111.38. On October 8, 

2010, the FEC filed a Motion to Dismiss the Petition (Docket No. 5), which the Court, on May 

13, 2011, denied without prejudice to renewal with a certification of consultation in accordance 

with Local Rule 7.1(a)(2). On May 20, 2011 and May 23, 2011, counsel for the FEC conferred 

with counsel for petitioners regarding this Renewed Motion to Dismiss the Petition pursuant to 

Local Rule 7.1(a)(2). Counsel advised that petitioners will oppose this motion. 

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II. ARGUMENT 

A. The Petition Should Be Dismissed Because the FEC’s Final Determination 

Was Not Arbitrary or Capricious 

This Court’s review of the Commission’s final determination is governed by the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq. See Lovely, 307 F. Supp. 2d at 

297-98. The APA states that a district court may only set aside agency decisions that are 

“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” River 

Street Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009) (quoting 5 U.S.C. 

§ 706(2)). Under this “highly deferential” standard, agency actions “are presumed to be valid,” 

and as a result, the Court “may not substitute its judgment for that of the agency, even if it 

disagrees with the agency’s conclusions.” Id. The Court is only “required to determine whether 

the agency’s decision is supported by a rational basis, and if so, [it] must affirm.” Id. 

The Supreme Court has held that the FEC “is precisely the type of agency to which 

deference should presumptively be afforded.” FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27, 37 (1981). In addition, “[w]here Congress has entrusted rulemaking and 

administrative authority to an agency,” such as the FEC, “courts normally accord the agency 

particular deference in respect to the interpretation of regulations promulgated under that 

authority.” South Shore Hosp., Inc. v. Thompson, 308 F.3d 91, 97 (1st Cir. 2002). Petitioners 

bear the burden of proving that the FEC’s action was arbitrary or capricious. See, e.g., Town of 

Burlington v. Dep’t of Educ., 736 F.2d 773, 794 (1st Cir. 1984). 

When reviewing agency action, “[t]he district court sits as an appellate tribunal,” and the 

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

Care Auth. v. Shalala, 988 F.2d 1221, 1225-26 (D.C. Cir. 1993). As a result, even though this 

action is before the Court on the FEC’s Rule 12(b)(6) renewed motion to dismiss, the Court can 

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reach the merits of whether the FEC’s action was arbitrary or capricious. See id. at 1225-26. 

“[P]roperly read,” the Petition “actually presents no factual allegations, but rather only 

arguments about the legal conclusion to be drawn about the agency action.” See id. at 1226. 

Accordingly, “the sufficiency of the [Petition] is the question on the merits, and there is no real 

distinction in this context between the question presented on a 12(b)(6) motion and a motion for 

summary judgment.” Id. 

Under the applicable regulations, there are only three bases for challenging the FEC’s 

ruling: (1) factual error; (2) improper calculation of the civil money penalty; or (3) the committee 

and its treasurer used “best efforts to file in a timely manner.” 11 C.F.R. § 111.35(b)(1)-(3). 

Before this Court, petitioners do not argue that the RTB finding was based on a factual error or 

that the civil money penalty was improperly calculated.2

 Thus, the only challenge before this 

Court concerns petitioners’ assertion that they used “best efforts” to file their Report 81 days 

late. 

1. The FEC Reasonably Found That Petitioners Did Not Use Best 

Efforts to File the Report in a Timely Manner 

Petitioners do not contend that the Report was filed on time under FECA and the 

Commission’s regulations. (See Pet. ¶¶ 7, 14.) Nor do petitioners challenge the validity of those 

regulations. Petitioners are admittedly experienced filers (see id. ¶ 20) who had filed previous 

reports as recently as December 4, 2009. (See Exh. A at 43; see also id. at 4 (ROR).) The FEC 

gave petitioners notice of the Report’s deadline over a month ahead of time, and on February 17, 

2010, notified petitioners that they had missed the deadline. (See Exh. A at 3.) Despite these 

efforts by the Commission, Robinson did not respond to the FEC regarding the late Report until 

 

2

 Petitioners argued in their RTB Challenge that the Commission improperly calculated the 

proposed civil money penalty (Exh. A at 6), but have waived this argument by not asserting it 

here. 

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April 15, 2010 (see id.) — the same day he mailed the Report to the Secretary of the Senate (see 

Pet. ¶¶ 7, 14), 75 days after the due date. Nevertheless, petitioners claim they used “best efforts” 

to file the Report, and therefore should not have been penalized. (See id. ¶ 21.) The FEC 

reasonably rejected this argument. 

A party claiming that it used “best efforts to file in a timely manner” must prove that 

(1) it was “prevented from filing in a timely manner by reasonably unforeseen circumstances 

that were beyond [its] control,” and (2) the untimely report was “filed no later than 24 hours 

after the end of these circumstances.” 11 C.F.R. § 111.35(b)(3)(i)-(ii). “[R]easonably 

unforeseen circumstances” include, but are not limited to: (1) a failure of FEC computers or 

FEC software; (2) a “widespread disruption” of the Internet; or (3) a “[s]evere weather or other 

disaster-related incident.” Id. § 111.35(c). They do not include circumstances such as a failure 

to know filing dates, inexperience, negligence, illness, or delays caused by committee vendors or 

contractors. See id. § 111.35(d). 

The Petition asserts two alleged bases for a “best efforts” finding, both of which the 

Commission correctly found did not constitute a circumstance that prevented petitioners from 

filing on time. 

a. The FEC Reasonably Found That Robinson’s Alleged Need to 

Complete His Tax Return First Did Not Prevent Him from 

Timely Filing the Report 

First, petitioners claim that Robinson filed the Report late because he could not 

accurately complete the Report until he had determined the amount of personal funds he had 

spent on his campaign, which he allegedly could not do until completing his 2009 tax return on 

April 15, 2010. (See Pet. ¶ 14; see also Exh. A at 6 (RTB Challenge).) 

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 The Commission considered this argument and reasonably concluded that petitioners had 

“failed to prove that [Robinson’s] need to prepare his taxes prevented them from filing the Year 

End Report on time.” (Exh. A at 4 (ROR).) As the Commission explained in the ROR, 

Robinson should have had access to all of the financial records necessary to complete the Report 

regardless of whether his 2009 tax return had been completed and filed. (See id. at 3-4.) As 

treasurer of the Committee, Robinson was required, on an ongoing basis, to keep track of and 

report loans he made, guaranteed, or endorsed to his Committee, including any derived from 

loans he received from third parties. (See id. at 4 (ROR) (citing 11 C.F.R. 

§ 104.3(a)(3)(vii)(B)).) As the candidate and the custodian of records for the Committee, 

Robinson had access to his own financial records and to the Committee’s financial records. (See 

id.) Petitioners did not dispute these facts before the Commission, and do not dispute them now. 

With access to these records, petitioners were able to file three reports with the FEC in 

October and December of 2009 disclosing that Robinson made loans to his Committee in 2009, 

despite the fact that he had yet to file his 2009 tax return. (See id.) The loans disclosed in these 

three prior reports totaled $365,000, which constitute 97% of the total amount of 2009 candidate 

loans petitioners eventually disclosed in the untimely Report. (See id.) And yet, petitioners 

offered the Commission, and now offer this Court, no reason why their ability to tally the 

personal funds Robinson spent suddenly became dependent on Robinson’s 2009 tax return. 

Rather, Robinson merely asserted (Exh. B at 1) that 

[b]ecause the Committee’s operations were entirely self-funded by 

Robinson, and because Robinson could not calculate the total amount of 

candidate loans provided to the Committee until his 2009 taxes were 

prepared, in order to ensure accuracy Robinson simply was unable to file 

the Report until those tax returns were prepared and filed. 

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This is ipse dixit: Robinson never explained what the purported causal relationship was between 

calculating his income taxes and calculating the total amount of loans provided to the 

Committee. The loans were in fact made to the Committee at the time the money was 

transferred, regardless of the total income or deductions Robinson may have had in 2009. 

Accordingly, the Commission’s rejection of petitioners’ tax return argument is supported by a 

rational basis. 

b. The FEC Reasonably Found That Robinson’s Need to 

Comply with Other FEC Notices Did Not Prevent Him 

from Timely Filing the Report 

Second, petitioners argue that their untimely filing should have been excused because 

allegedly they first had to respond to four notices the FEC sent to them: (1) a January 7, 2010, 

request for additional information (“RFAI”); (2) the February 17, 2010, notice of failure to file 

the Report; (3) a February 23, 2010, RFAI; and (4) a March 23, 2010, RFAI. (See Pet. ¶ 15; see 

also Exh. A at 6 (RTB Challenge).) 

The Commission considered this argument and reasonably concluded that it also failed to 

excuse petitioners’ late filing or otherwise justify a “best efforts” finding. (See Exh. A at 3 

(ROR).) As explained in the Commission’s ROR, petitioners received only one of these notices 

— the January 7, 2010, RFAI — before the Report’s January 31, 2010, due date. (See id.) Thus, 

the other three notices could not have caused petitioners to miss the deadline. (See id.) In 

particular, the February 17, 2010, notice did not request additional information but was simply a 

reminder that the Report was late, and it urged petitioners to file the Report immediately. (See 

Exh. A at 11.) 

The January 7, 2010, RFAI requested that petitioners correct certain errors found in their 

previously filed October Quarterly Report by February 11, 2010. (See Exh. A at 44-47; see also 

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Exh. A at 3 (ROR).) As the Commission explained, petitioners received this RFAI more than 

three weeks before the Report was due, giving adequate time to complete both tasks. (See Exh. 

A at 3.) And, in any event, Robinson’s duty to comply with the January 7, 2010, RFAI did not 

relieve him of his responsibility to file the Report on time. (See id.) 

Accordingly, the Commission’s rejection of petitioner’s argument is supported by a 

rational basis. 

2. Petitioners Have Waived Their Other Meritless Arguments 

The Petition raises two additional arguments, which the Court should deem waived and 

not consider: first, that the late filing should be overlooked because it allegedly caused no harm 

to the public interest (see Pet. ¶¶ 18-19), and second, that petitioners’ lack of previous reporting 

violations should have “weigh[ed] in favor” of a “best efforts” determination (see id. ¶ 20). 

A “respondent’s failure to raise an argument in a timely fashion during the administrative 

process shall be deemed a waiver of the respondent’s right to present such argument in a petition 

to the district court under 2 U.S.C. § 437g.” 11 C.F.R. § 111.38. In order to raise an argument in 

a timely fashion during the administrative process, a party must raise the argument in its written 

response challenging RTB under 11 C.F.R. § 111.35, and not later in its objections to the ROR 

(unless the argument is “directly” responsive to the ROR). See id. § 111.36(f). 

Petitioners failed to raise the above two arguments in their submission challenging RTB 

(see Exh. A at 6), and only raised them for the first time in their objections to the ROR (see Exh. 

B). The new arguments, however, were not responsive to the ROR’s discussion and were thus 

untimely under 11 C.F.R. § 111.36(f). Petitioners have therefore waived their ability to raise 

these new arguments before this Court. See 11 C.F.R. § 111.38; see also NLRB v. Saint-Gobain 

Abrasives, Inc., 426 F.3d 455, 458-59 (1st Cir. 2005) (“The general exhaustion requirement that 

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13 

prevails in administrative matters is a bedrock principle: ‘as a general rule[,] courts should not 

topple over administrative decisions unless the administrative body not only has erred but has 

erred against objection made at the [appropriate] time.’” (alterations in original) (quoting United 

States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952))); accord Cunningham v. FEC, 

No. IP-01-0897-C-B/S, 2002 WL 31431557, at *4 (S.D. Ind. Oct. 28, 2002). Judicial adherence 

to the raise-or-waive rule “simultaneously enhances the efficacy of the agency, fosters judicial 

efficiency, and safeguards the integrity of the inter-branch review relationship.” Saint-Gobain 

Abrasives, 426 F.3d at 459 (internal quotation marks omitted). 

 In any event, neither waived argument is a valid ground for challenging the 

Commission’s decision, see 11 C.F.R. § 111.35(b)(1)-(3), and both are meritless on their own 

terms. First, it is untrue that petitioners’ violation did not harm the public interest. As discussed 

supra pp. 2-3, FECA’s disclosure and reporting requirements further at least three substantial 

government interests: (1) providing the electorate with information on campaign spending; 

(2) deterring corruption by exposing large contributions and expenditures; and (3) allowing the 

FEC to gather the data necessary to detect violations of the contribution limitations. See 

Buckley, 424 U.S. at 66-68. Given these substantial interests, public harm is presumed from a 

violation of the reporting requirements. See FEC v. Furgatch, 869 F.2d 1256, 1259 (9th Cir. 

1989). Contrary to petitioners’ assertions (see Pet. ¶¶ 18-19), a failure to report causes public 

harm even where the candidate is self-funded, see, e.g., Cox for U.S. Senate Comm., Inc. v. FEC, 

No. 03-3715, 2004 WL 783435, at *6 (N.D. Ill. Jan. 22, 2004) (pointing out that reporting by 

self-funded candidates allows the public to “ascertain prior to an election which candidates are 

incurring sizable obligations that may be discharged with the generosity of unidentified parties 

after the election”), and where the candidate lost the election, see, e.g., FEC v. Toledano, 317 

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F.3d 939, 953 (9th Cir. 2002) (“That [defendant] lost anyway, and the violation thus had no 

effect on the outcome of the election, does not change the fact that the public was harmed by the 

[FECA violation].”). This analysis is not changed by the fact that the election at issue was a 

special election. 

Second, petitioners’ lack of previous reporting violations was properly considered by the 

Commission in determining the amount of their civil money penalty under the administrative 

fine schedule under 11 C.F.R. § 111.43. (See Exh. A at 3 (ROR).) Petitioners’ fine of $6,050 is 

less than it would have been had they previously violated 2 U.S.C. § 434(a). See 11 C.F.R. 

§ 111.43(a). Nothing in the FEC’s regulations requires a lack of previous reporting violations to 

also “weigh in favor” of a “best efforts” determination under 11 C.F.R. § 111.35(b)(3), as 

petitioners erroneously claim. (See Pet. ¶ 20.) 

B. This Case Should Not Be Referred to the FEC’s Alternative Dispute 

Resolution Program 

In their Opposition to the Commission’s original Motion to Dismiss (Docket No. 6), 

petitioners requested that the Court stay the case and refer it to the FEC’s Alternative Dispute 

Resolution Program (“ADR”). The Court should reject any renewed request by petitioners for 

such relief because the Court lacks the authority to refer the case to ADR, and even if it had such 

authority, ADR is inappropriate at this stage of the proceedings. 

Petitioners’ lawsuit asks this Court to review the FEC’s Administrative Fines Program 

determination under the authority of 2 U.S.C. § 437g(a)(4)(C)(iii), which only allows petitioners 

to “request[] that the determination be modified or set aside.” It does not provide petitioners a 

chance to second-guess the Commission’s decision not to employ its ADR program or to 

readjudicate their case using a second administrative process — an additional layer of process 

that would be directly at odds with the purposes of both programs. 

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The Administrative Fines Program is the FEC’s usual method of redressing violations of 

2 U.S.C. § 434(a) by registered political committees, such as petitioners’ reporting violation. See

2 U.S.C. § 437g(a)(4)(C)(i); 11 C.F.R. §§ 111.30-111.31. In 1999, Congress established the 

Administrative Fines Program to authorize the FEC to assess civil money penalties for reporting 

violations in lieu of its general investigatory enforcement procedures, which are applicable to all 

other types of violations. See 2 U.S.C. § 437g(a)(4)(C)(i). The Administrative Fines Program 

was intended to “let the agency deal with minor violations of the law in an expeditious manner” 

and to “give the FEC more time to investigate serious violations of the law.” See 145 Cong. Rec. 

H5622 (daily ed. July 15, 1999) (statement of Congresswoman Maloney). 

The FEC’s ADR Program was similarly established to “facilitate[] a faster resolution” of 

certain disputes. See FEC’s Alternative Dispute Resolution Program, at

http://www.fec.gov/em/adr.shtml. Federal agencies were provided with specific authority to 

establish such programs by the Administrative Dispute Resolution Act, 5 U.S.C. § 572, and 

parties are not permitted judicial review of an agency’s discretionary decision whether to employ 

ADR in individual cases. See 5 U.S.C. § 581(b)(1) (“A decision by an agency to use or not use a 

dispute resolution proceeding . . . shall be committed to the discretion of the agency and shall not 

be subject to judicial review . . . .”). Petitioners have thus requested a remedy that this Court 

lacks authority to provide. 

Even if the Court had authority to issue such a remedy, a referral to the ADR Program 

makes no sense at this juncture. The ADR Program is intended to be used before the FEC’s 

traditional enforcement process begins, in hopes of avoiding that process. See FEC’s Alternative 

Dispute Resolution Program, at http://www.fec.gov/em/adr.shtml. Here, this matter has already 

been adjudicated through the administrative fines process; it is thus too late for ADR to obviate 

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the need for a different process, and the Commission has already made a determination regarding 

the appropriate remedy. Moreover, adding another layer of process would undercut the 

Administrative Fines Program’s goal of handling matters in an expeditious manner. Petitioners 

cannot now request a second bite at the apple before the Commission because they are 

dissatisfied with the result of the administrative proceedings. The FEC adjudicated petitioners’ 

case in a manner consistent with FECA and the Commission’s regulations, and the only issue 

here is whether the FEC’s determination was arbitrary or capricious, which it was not. 

CONCLUSION 

 Because the FEC’s final determination was not arbitrary, capricious, an abuse of 

discretion, or otherwise contrary to law, and is reasonably supported by the administrative 

record, the Court should dismiss the Petition with prejudice.3

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 

3

 In the alternative, the Court could dismiss the Petition without prejudice for insufficient 

service of process under Rule 12(b)(5). Petitioners appear to have completed their efforts at 

service, as they have filed an executed return of service demonstrating that they served the FEC 

by certified mail on August 16, 2010. (See Docket No. 3.) However, petitioners have failed to 

perfect service of process by also serving the United States as required by Rule 4(i)(2). To serve 

the United States, petitioners were required to deliver a copy of the summons and complaint to 

the United States Attorney for the District of Massachusetts and to the Attorney General, in 

Washington, D.C. See Fed. R. Civ. P. 4(i)(1)(A)-(B). As of May 24, 2011 — over nine months 

after the Petition was filed on August 9, 2010 (Docket No. 1) — Petitioners have served neither. 

Case 1:10-cv-11335-GAO Document 12 Filed 05/25/11 Page 16 of 17
17 

 /s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

 (202) 694-1650 

Dated: May 25, 2011 e-mail: khancock@fec.gov 

Certificate of Service

 I, Kevin P. Hancock, certify that this document filed through the ECF system will be sent 

electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) 

and paper copies will be sent to those indicated as non registered participants on May 25, 2011. 

Dated: May 25, 2011 Respectfully submitted, 

 /s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 1:10-cv-11335-GAO Document 12 Filed 05/25/11 Page 17 of 17