UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

GARCIA FOR CONGRESS, et al. 

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

V. 

MEMORANDUM OF LAW 

FEDERAL ELECTION COMMISSION, 

Defendant. 

____________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION'S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

September 19, 2013 

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 

(202) 694-1650 

* Counsel's pro hac vice applications (Docket Nos. 9-12) and the Commission's motion for waiver 

of fees and the local counsel requirement in Local Rule 83.10 (Docket No. 8) are pending. 

Case 3:13-cv-02401-K Document 17 Filed 09/19/13 Page 1 of 21 PageID 102
TABLE OF CONTENTS 

Page 

BACKGROUND ............................................................................................................ 2 

I. STATUTORY AND REGULATORY BACKGROUND .................................. 2 

A. Reporting Requirements for Political Committees ................................. 2 

B. FECA's Enforcement Procedures ........................................................... 3 

C. The Commission's Administrative-Fines Regulations .......................... .4 

II. THE ADMINISTRATIVE DETERMINATION CHALLENGED 

IN THIS CASE ................................................................................................... 6 

ARGUMENT ................................................................................................................ 1 0 

I. STANDARD OF REVIEW .............................................................................. 1 0 

II. THE COMMISSION'S DETERMINATION SHOULD BE AFFIRMED ...... 11 

A. The Administrative Record Establishes That Garcia 

Failed to Timely File Its 48-Hour Notices ............................................ 11 

B. The Commission Reasonably Rejected Plaintiffs' 

Challenge to the Commission's Administrative Findings .................... 12 

CONCLUSION ............................................................................................................. 15 

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TABLE OF AUTHORITIES 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................... 2 

Cooksey v. FEC, No. 04-1152, 2005 WL 1630102 (W.D. La. June 9, 2005) .............. 10 

Cox for US. Senate Comm., Inc. v. FEC, Civ. No. 03C3715, 2004 WL 783435 

(N.D. Ill. Jan. 22, 2004) ............................................................................. 12, 13 

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

(S.D. Ind. Oct. 28, 2002) ............................................................................. 11, 14 

Dutka v. AIG Ins. Co., 573 F.3d 210 (5th Cir. 2009) .................................................... 10 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .............................................. 11 

Luminant Generation Co., LLC. v. EPA, 714 F.3d 841 (5th Cir. 2013) ....................... 11 

Medina Cnty. Envtl. Action Ass 'n. v. Surface Transp. Bd., 602 F.3d 687 

(5th Cir. 2010) ................................................................................................... 11 

Miles for Senate Comm. v. FEC, No. 01-83,2002 WL 47008 

(D. Minn. Jan. 9, 2002) ..................................................................................... 10 

Nat'! Ass 'n of Clean Air Agencies v. EPA, 489 F.3d 1221 (D.C. Cir. 2007) ................ 10 

Pension Benefit Guar. Corp. v. Jones Mem. Hasp., 374 F.3d 362 

(5th Cir. 2004) ............................................................................................. 10, 14 

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) ............................. 14 

Statutes and Regulations 

Administrative Procedure Act, 5 U.S.C. § 706 ............................................................. 10 

Federal Election Campaign Act, 2 U.S.C. §§ 431-457 ................................................... 2 

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

§ 640, 113 Stat. 430,476-477 (1999) ................................................................. 3 

2 u.s.c. § 431(4)-(6) ...................................................................................................... 2 

2 U.S.C. § 431(5) ............................................................................................................ 6 

2 U.S.C. § 432(i) ........................................................................................................... 13 

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2 U.S.C. § 432(a)-(d) ...................................................................................................... 2 

2 U.S.C. § 434(a)(2)(A)(i)-(iii) ....................................................................................... 2 

2 U.S.C. § 434(a)-(b) ...................................................................................................... 2 

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

2 U.S.C. § 434(a)(6)(A) .......................................................................................... 2, 7, 8 

2 U.S.C. § 437c(b)(1) ...................................................................................................... 3 

2 U.S.C. § 437d(a) .......................................................................................................... 3 

2 U.S.C. § 437g ............................................................................................................... 3 

2 U.S.C. § 437g(a) .......................................................................................................... 3 

2 U.S.C. § 437g(a)(1)-(3) ................................................................................................ 3 

2 U.S.C. § 437g(a)(4)(A)(i) ............................................................................................ 3 

2 U.S.C. § 437g(a)(4)(C)(i)(II) ...................................................................................... .4 

2 U.S.C. § 437g(a)(4)(C)(iii) .................................................................................... 4, 10 

2 U.S.C. § 437g(a)(6) ...................................................................................................... 3 

2 U.S.C. § 437g(b) .......................................................................................................... 7 

5 U.S.C. § 706(2)(A), (C) ............................................................................................. 10 

11 C.P.R.§ 111.32 .......................................................................................................... 5 

11 C.P.R.§ 111.33 .......................................................................................................... 5 

11 C.P.R. § 111.35(a), (e) ............................................................................................... 5 

11 C.F.R. § 111.35(b)(1)-(3) ..................................................................................... 5, 14 

11 C.F.R. § 111.35(b )(3) ............................................................................................... 13 

11 C.F.R. § 111.35(b), (c) ............................................................................................... 5 

11 C.F.R. § 111.35(b )(3)(ii) .......................................................................................... 13 

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11 C.F.R. § 111.35(c)(1) .............................................................................................. 13 

11 C.F.R. § 111.35(c)(2) ............................................................................................... 13 

11 C.F.R. § 111.35(c)(3) ............................................................................................... 13 

11 C.F.R. § 111.35(d) .............................................................................................. 5, 13 

11 C.F.R. § 111.36(a) ...................................................................................................... 5 

11 C.F.R. § 111.36(b) ..................................................................................................... 5 

11 C.F.R. § 111.36(e) ...................................................................................................... 6 

11 C.F.R. § 111.36(±) ...................................................................................................... 6 

11 C.F.R. § 111.37(a)-(c) ................................................................................................ 6 

11 C.F.R. § 111.37(d) .................................................................................................... 6 

11 C.F.R. § 111.38 ........................................................................................................ 14 

11 C.F.R. § 111.43(a)-(c) ................................................................................................ 4 

11 C.F.R. §111.44 ........................................................................................................... 4 

11 C.F.R. § 111.44(a)(1) ......................................................................................... 4, 7, 8 

Miscellaneous 

FEC Form 3, Report of Receipts and Disbursements for an Authorized Committee, 

Garcia for Congress, July 15, 2012, http:/ /images.nictusa.com/cgibin/fecimg/? 12971464213%20 ........................................................................... 7 

H.R. Rep. No. 106-295 (1999) ....................................................................................... .4 

48 Hour Notice of Contributions/Loans Received, Garcia for Congress, Sept. 1 7, 

2012, http://images.nictusa.com/cgi-bin/fecimg/? _12952926876%200 ............. 7 

48 Hour Notice of Contributions/Loans Received, Garcia for Congress, Sept. 17, 

2012, http://images.nictusa.com/cgi-bin/fecimg/? _12972184944%200 ............. 7 

65 Cong. Rec. H5622 (daily ed. July 15, 1999) (statement ofRep. Maloney) .............. .4 

IV 

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Plaintiffs Garcia for Congress and Swati Patel, in her official capacity as treasurer, 

(collectively, "the Garcia Committee") challenge an administrative fine of $15,220 that the 

Federal Election Commission ("FEC" or "Commission") imposed as a penalty for the Garcia 

Committee's failure to file two mandatory campaign-finance disclosure notices in May 2012. 

The administrative record confirms that the Garcia Committee failed to timely file both of the 

statutorily required 48-hour disclosure notifications at issue here. And the amount of the Garcia 

Committee's fine- $15,220 for failing to timely report two loans by the candidate to his 

campaign of $100,000 and $50,000, respectively- comports with the regulatory schedule of 

penalties for 48-hour notices that are not timely filed. 

The Garcia Committee does not dispute these critical facts. Instead, the Garcia 

Committee challenges the Commission's "refus[al] to modify [its] finding or the original civil 

money penalty" (Compl. ,-r 7 (Docket No. 1)) despite the Garcia Committee's request for 

"leniency." (Administrative Record ("AR") 007.) But neither the Garcia Committee's assertion 

of"an unintentional clerical error" nor its concern about how a "fine could delay the 

Committee's efforts to wind down and terminate the campaign" (id.), provided a legal basis for 

the Commission to excuse the Garcia Committee's reporting violations. 

The only question before the Court is whether the Commission's action was reasonably 

supported by the administrative record. Because that record amply supports the Commission's 

decision, the Commission is entitled to judgment as a matter oflaw. 

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BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Reporting Requirements for Political Committees 

The Federal Election Campaign Act, 2 U.S.C. §§ 431-457 ("FECA"), requires every 

"political committee"- which includes candidate campaigns, political parties, and other 

political organizations, see 2 U.S.C. § 431(4)-(6)- to designate a treasurer to maintain the 

committee's financial records. See 2 U.S.C. § 432(a)-(d). The treasurer must sign and file 

reports that detail, among other things, the committee's receipts and disbursements. 2 U.S.C. 

§ 434(a)-(b). FECA establishes a periodic schedule for such reports. Under that schedule, a 

candidate committee must file (i) a pre-election report 12 days before the relevant election; (ii) a 

post-election report 30 days after the relevant election; and (iii) quarterly reports 15 days after 

each calendar quarter ends, "except that the report for the quarter ending December 31 shall be 

filed no later than January 31 of the following calendar year." 2 U.S.C. § 434(a)(2)(A)(i)-(iii). 

Most relevant here, a candidate committee must report in writing "any contribution of $1,000 or 

more received by any authorized committee of such candidate after the 20th day, but more than 

48 hours before, any election. This notification shall be made within 48 hours after receipt of 

such contribution .... " 2 U.S.C. § 434(a)(6)(A). These are commonly referred to as 48-hour 

notices. FECA's reporting requirements further "substantial government interests," including, 

inter alia, "provid[ing] the electorate with information as to where political money comes from 

... in order to aid the voters in evaluating those who seek federal office." Buckley v. Valeo, 424 

U.S. 1, 66-68 (1976) (citation and internal quotation marks omitted). 

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B. FECA's Enforcement Procedures 

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

exclusive jurisdiction over the administration, interpretation, and civil enforcement of FE CA. 

See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. FECA establishes a detailed administrative 

process for the Commission to review alleged violations of the Act. See 2 U.S.C. § 437g(a). 

Under FECA, if at least four Commissioners vote to find "reason to believe" that a violation has 

occurred, the Commission's General Counsel can conduct an investigation that leads to a 

recommendation as to whether there is "probable cause to believe" a violation has occurred. 

2 U.S.C. § 437g(a)(1)-(3). If at least four Commissioners then vote to find such probable cause, 

the Commission must attempt to resolve the matter by "informal methods of conference, 

conciliation, and persuasion, and to enter into a conciliation agreement" with the respondent. 

2 U.S.C. § 437g(a)(4)(A)(i). Ifthe Commission is unable to resolve the matter through voluntary 

conciliation, the Commission may file a civil suit against the respondent in federal district court. 

2 U.S.C. § 437g(a)(6). 

For more than twenty years, the Commission was required to employ these general 

enforcement procedures for all violations ofFECA- even the most straightforward violations 

in which committees simply failed to file their reports on time (or at all). In 1999, however, 

Congress amended FECA to create a streamlined enforcement system for violations of the 

periodic filing requirements. See Treasury and General Government Appropriations Act, 2000, 

Pub. L. No. 106-58, § 640, 113 Stat. 430, 476-477 (1999) (codified at 2 U.S.C. § 437g(a)(4)(C)). 

Specifically, Congress authorized the Commission to directly assess civil money penalties for 

violations of2 U.S.C. § 434(a), which establishes, inter alia, the deadlines for political 

committees' disclosure reports. Pursuant to this authority, after the Commission finds reason to 

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

Commission may 

require the person to pay a civil money penalty in an amount determined 

under a schedule of penalties which is established and published by the 

Commission and which takes into account the amount of the violation 

involved, the existence of previous violations by the person, and such 

other factors as the Commission considers appropriate. 

2 U.S.C. § 437g(a)(4)(C)(i)(II). By eliminating steps such as the probable-cause determination 

and conciliation period that apply to other FEC enforcement matters, this "administrative fines" 

program "create[ d] a simplified procedure for the FEC to administratively handle reporting 

violations." H.R. Rep. No. 106-295, at 11 (1999). That procedure, "much like traffic tickets, ... 

let[s] the agency deal with minor violations of the law in an expeditious manner." 65 Cong. Rec. 

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

A respondent who objects to the Commission's imposition of an administrative fine may 

seek judicial review of that fine in district court "by filing in such court ... a written petition 

requesting that the determination be modified or set aside." 2 U.S.C. § 437g(a)(4)(C)(iii). 

C. The Commission's Administrative-Fines Regulations 

The Commission's administrative-fines regulations establish the schedules of penalties 

authorized by 2 U.S.C. § 437g(a)(4)(C)(i)(II). See 11 C.F.R. §§ 111.43(a)-(c); 111.44. These 

penalty schedules take into account whether the untimely (or not filed) report was election 

sensitive, how late it was filed, the dollar amount ofthe receipts and disbursements it detailed, 

and the number of prior violations by the respondent. See 11 C.F.R. §§ 111.43(a)-(c); 111.44. 

The schedule of civil penalties for 48-hour notices that are not filed or are filed late is set forth at 

11 C.F.R. § 111.44. Under that regulation, the civil penalty for each untimely 48-hour notice is 

$110 plus ten percent of the amount of the contribution(s) not timely reported. 11 C.F.R. 

§ 111.44(a)(l). 

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When the Commission finds reason to believe that a political committee has violated 

2 U.S.C. § 434(a), the Commission notifies the committee of that finding. 11 C.F.R. § 111.32. 

The notification includes the factual and legal basis for the finding, the amount of the proposed 

civil penalty, and an explanation of the respondent's right to challenge both the reason-to-believe 

finding and the amount of the penalty. !d. Upon receipt of this notification, the respondent may 

either pay the penalty or challenge the finding or the proposed penalty. 11 C.F.R. § 111.33. 

If a respondent wishes to challenge the Commission's reason-to-believe finding or the 

proposed penalty, the respondent must file a written response that "detail[s] the factual basis 

supporting its challenge and include[s] supporting documentation" within 40 days of the 

Commission's finding. 11 C.F.R. § 111.35(a), (e). There are three possible grounds for such a 

challenge: (1) factual errors in the Commission's finding (such as if the report was, in fact, 

timely filed); (2) inaccurate calculation of the penalty; or (3) a showing that 

The respondent used best efforts to file in a timely manner [but] was 

prevented from filing in a timely manner 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)(l)-(3). The regulations provide that "reasonably unforeseen 

circumstances" beyond a filer's control that would satisfy this "best-efforts" defense include 

events such as natural disasters, 11 C.F.R. § 111.35(b), (c), but do not include causes such 

as negligence or staff inexperience. See 11 C.F.R. § 111.35(d). 

Timely filed challenges to the Commission's reason-to-believe finding are reviewed by 

the Commission's "Reviewing Officer," 11 C.F.R. § 111.36(a), a member of the Commission's 

staff who is not involved in the reason-to-believe finding. After considering the respondent's 

submission, along with the reason-to-believe determination and any supporting documentation, 

11 C.F .R. § 111.36(b ), the Reviewing Officer submits a written recommendation to 

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the Commission, 11 C.F.R. § 111.36(e), that is also provided to the respondent, 11 C.F.R. 

§ 111.36(f). The respondent may file a written response to the recommendation within ten days. 

!d. That response cannot raise any new arguments beyond those in the original written response, 

except in direct response to the Reviewing Officer's recommendation. !d. 

After receiving the Reviewing Officer's recommendation and any timely additional 

response from the respondent, the Commission makes a final determination by an affirmative 

vote of at least four Commissioners as to whether the respondent violated 2 U.S.C. § 434(a) and, 

if so, the amount of the civil penalty. 11 C.F .R. § 111.3 7( a)-( c). When the Commission makes a 

final determination under this procedure, the reasons provided by the Reviewing Officer for her 

recommendation serve as the reasons for the Commission's action, unless otherwise indicated by 

the Commission. 11 C.F.R. § 111.37(d). 

II. THE ADMINISTRATIVE DETERMINATION CHALLENGED IN THIS CASE 

Domingo A. Garcia was a candidate in the Democratic Party's 2012 primary campaign 

for the Texas 33rd District U.S. House of Representatives seat. (Compl. ~ 7.) Garcia for 

Congress was Mr. Garcia's principal campaign committee, see id; 2 U.S.C. § 431(5), and Swati 

Patel served as the committee's treasurer. 

On March 7, 2012, Garcia for Congress registered with the Commission as the principal 

campaign committee for Mr. Garcia's congressional campaign. On April 25, 2012, the 

Commission sent as a courtesy the Primary Election Report Notice to all political committees 

who had registered to participate in that primary and provided email addresses, including the 

Garcia Committee, reminding them of the disclosure report filing deadlines for reports associated 

with the Texas primary, held on May 29, 2012. (See AR013-025.) The Garcia Committee's preprimary report was due on May 17,2012, see 2 U.S.C. § 434(a)(2)(A)(i); AR015, and the 

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Primary Election Report Notice advised that 48-hour notices for the Texas Primary would be 

required during the period of May 10 through May 26, 2012. AR015; see 2 U.S.C. 

§ 434(a)(6)(A). Mr. Garcia then made two personal loans to his congressional campaign just 

days before this primary election, transferring $100,000 to his campaign on May 18,2012, and 

$50,000 six days later on May 24, 2012. (See AR043-045; AR096-098.) Neither of these 

transfers was publicly reported through the required 48-hour notices before the May 29 Texas 

primary election. (AR002-007; AR099-102.) 

The Garcia Committee filed its July 2012 Quarterly Report with the Commission on July 

15, 2012. FEC Form 3, Report ofReceipts and Disbursements for an Authorized Committee, 

Garcia for Congress, July 15,2012, http://images.nictusa.com/cgibin/fecimg/?_12971464213%200. Schedule A of that Report, which contained the Garcia 

Committee's itemized receipts for the period of May 10 through June 30, 2012, included the 

May 18 and May 24 personal loans to his campaign. !d. at 21; see AR043-045. 

On August 13, 2012, the Commission sent a letter requesting additional information to 

Garcia for Congress's treasurer, Swati Patel, regarding plaintiffs' failure to file the required 48-

hour notices for the May 18 and 24 contributions disclosed on Schedule A of the Garcia 

Committee's July 2012 Quarterly Report. 2 U.S.C. § 437g(b); AR043- 045. Five weeks later, 

on September 17, the Garcia Committee filed 48-hour notices for those two contributions/loans 

received. 48 Hour Notice of Contributions/Loans Received, Garcia for Congress, Sept. 17, 2012, 

http://images.nictusa.com/cgi-bin/fecimg/? _12952926876%200 (disclosing May 18 loan); 48 

Hour Notice of Contributions/Loans Received, Garcia for Congress, Sept. 17, 2012, 

http://images.nictusa.com/cgi-bin/fecimg/? _12972184944%200 (disclosing May 24 loan). 1 

1 The March 4, 2013 Declaration of Jodi Winship mistakenly states that the Garcia Committee 

had not filed the required 48-hour notices as of that date. (AR036.) This error, however, does 

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These belated notices of Mr. Garcia's pre-election loans to his campaign, filed more than three 

months after both the dates the loans were made and the May 29 Texas primary election, failed 

to fulfill the statutory requirement to report such campaign contributions "of $1,000 or more ... 

within 48 hours after receipt of such contribution." 2 U.S.C. § 434(a)(6)(A). Pursuant to section 

111.44(a) of the Commission's regulations, the proper penalty for the Garcia Committee's 

untimely notification of the two loans was $110 for each contribution, plus ten percent of the 

amount of the contributions. 11 C.F.R. § 111.44(a)(1). The total penalty calculated under this 

regulatory formula was $15,220. (AR030.) 

In early February 2013, the Commission accepted its staff recommendation and (1) found 

reason to believe that the Garcia Committee had violated 2 U.S.C. § 434(a) by failing to file the 

required 48-hour notices; and (2) made a preliminary determination that a civil penalty of 

$15,220 be assessed. (AR001-006.) The Commission unanimously approved this 

recommendation on February 7, 2013. (AR006.) The matter was designated as Administrative 

Fine ("AF") 2636. 

The Commission notified the Garcia Committee of its reason-to-believe finding and 

proposed fine by letter dated February 8, 2013. (AR046-059.) On February 26, 2013, the Garcia 

Committee submitted a response to the reason-to-believe determination. (AR007.) The Garcia 

Committee challenged the calculation ofthe proposed $15,220 civil penalty, requesting 

"leniency" on the grounds that an "unintentional clerical error on the part of the Committee" 

caused the non-filing and that the civil penalty "could delay" efforts to wind down and terminate 

not cast any doubt over the propriety of the Commission's final determination in this matter. 

The Commission's regulations impose the same penalty scheme for 48-hour notices that are "not 

filed" as it does for those that are "filed late," 11 C.F.R. § 111.44(a)(l), and the Garcia 

Committee's filing of the 48-hour notices more than three months late, on September 17, 2012, 

indisputably failed to comply with the statutory requirement to file such notices "within 48 

hours" of the Committee's receipt of Mr. Garcia's May 2012 loans. 2 U.S.C. § 434(a)(6)(A). 

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the Garcia campaign. (!d.) With respect to the asserted clerical error, the Garcia Committee 

admitted that "as a result of this error, there was a failure to communicate requisite information 

to the compliance specialists responsible for filing the notices." (!d.) And regarding concerns 

about wind-down delays, the Garcia Committee stated that Mr. Garcia had contributed or loaned 

a total of"$2,287,776, or approximately 99% of the total contributions" to his campaign, and 

asked the Commission to "consider the implications that additional costs" of paying the civil 

penalty would impose "to not only the campaign, but also the candidate." (!d.) 

The Commission's Acting Reviewing Officer, Ms. Rhiannon Magruder, received the 

Garcia Committee's response on March 1, 2013. (AR009-0ll.) Ms. Magruder forwarded a 

written recommendation to the Commission and the Garcia Committee on March 11, 2013. 

(AR060-063; AR064-098.) She noted in her recommendation that 48-hour notices were required 

for each of the candidate's May 18th and May 24th personal loans to the campaign, and 

concluded that "negligence is included at 11 C.F.R. § 111.35(d) as an example of a circumstance 

that will not be considered reasonably unforeseen and beyond the respondents' control." 

(AR066.) In short, the Reviewing Officer concluded that the Garcia Committee's admitted 

negligence is no defense to its failure to timely file the required 48-hour notices. (!d.) 

The Garcia Committee declined to submit any response to Ms. Magruder's 

recommendation. Ms. Magruder then recommended on April 3, 2013, that the Commission 

make a final determination that the Garcia Committee had violated 2 U.S.C. § 434(a), and assess 

the civil penalty calculated at the reason-to-believe stage, $15,220. (AR099.) The Commission 

unanimously voted on May 20, 2013, to adopt the Reviewing Officer's recommendations. 

(AR102.) The Commission notified the Garcia Committee of its final determination on May 23, 

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2013 (Compl., Ex. 1; AR103-106), and plaintiffs filed their petition for review with this Court 

thirty days later, on June 24, 2013. 

ARGUMENT 

I. STANDARD OF REVIEW 

When district courts determine whether a Commission administrative determination 

should be "be modified or set aside," 2 U.S.C. § 437g(a)(4)(C)(iii), their review is governed by 

the Administrative Procedure Act ("AP A"), 5 U.S.C. § 706. Cooksey v. FEC, No. 04-1152, 

2005 WL 1630102, at *2 (W.D. La. June 9, 2005) (citing Miles for Senate Comm. v. FEC, 

No. 01-83, 2002 WL 47008 (D. Minn. Jan. 9, 2002)). Under the APA, a reviewing court may set 

aside final agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right." 5 U.S.C. § 706(2)(A), (C). Courts determine "whether an agency 

articulated a rational connection between the facts found and the decision made"; the court is 

thus limited to reviewing the final agency decision "on the basis articulated by the agency itself." 

Pension Benefit Guar. Corp. ("PBGC') v. Jones Mem. Hasp., 374 F.3d 362, 366-67 (5th Cir. 

2004). 

The arbitrary and capricious standard of review is "highly deferential" and "presumes the 

validity of agency action." Nat'! Ass 'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. 

Cir. 2007). Agency determinations supported by "substantial evidence," i.e., "such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion," are not 

arbitrary or capricious. Dutka v. AIG Ins. Co., 573 F.3d 210, 213 (5th Cir. 2009). Courts should 

"uphold a decision ofless than ideal clarity if the agency's path may be reasonably discerned." 

PBGC, 374 F.3d at 367. 

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A plaintiff challenging an agency decision "has the burden of proving that the agency's 

determination was arbitrary or capricious." Medina Cnty. Envtl. Action Ass 'n. v. Surface Transp. 

Bd., 602 F .3d 687, 699 (5th Cir. 201 0). "The focal point for judicial review should be the 

administrative record already in existence, not some new record made initially in the reviewing 

court." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); see Luminant 

Generation Co., LLC. v. EPA, 714 F.3d 841, 850 (5th Cir. 2013) (same). Thus, the question 

presented to the court on motions for summary judgment in AP A challenges is 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). 

II. THE COMMISSION'S DETERMINATION SHOULD BE AFFIRMED 

A. The Administrative Record Establishes That the Garcia Committee Failed to 

Timely File Its 48-Hour Notices 

The Commission's finding that the Garcia Committee failed to timely file two 2012 

primary 48-hour notices was a reasonable determination based on the administrative record. 

The Reviewing Officer's recommendation, which the Commission adopted, described the 

underlying facts accurately, correctly analyzed the violation, and applied the Commission's 

administrative-fines regulations appropriately. 

The primary evidence on which the Commission relied - Commission records showing 

that the required notifications were not filed on time and the Garcia Committee's own admission 

of negligence in meeting its reporting obligations- clearly establishes the reasonableness of the 

Commission's determination that the Garcia Committee violated its reporting obligations. The 

Commission correctly determined that the Garcia Committee's 48-hour notices had not been 

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received by the Commission within 48 hours? In fact, the required 48-hour notices were first 

filed on September 17, 2012, more than three months after they were due. See supra p. 7. And 

the Commission considered the Garcia Committee's February 26, 2013 response to the 

Commission's reason-to-believe finding in which the Garcia Committee admitted that the 48-

hour notices had not been timely filed because ofthe Garcia Committee's "failure to 

communicate requisite information to the compliance specialists responsible for filing notices," 

which the Garcia Committee characterized as "an unintentional clerical error on the part of the 

Committee." (AR007.) On the basis of the record, the Commission reasonably concluded that 

the Garcia Committee failed to timely file the requisite 48-hour notices as a result of its own 

negligence and then properly verified that the correct civil penalty had been assessed pursuant to 

11 CFR § 111.44. (AR065-066; AR099-1 02.) "Since the record is clear that the relevant factors 

were considered and the applicable regulations were strictly applied to Plaintiffl:'s] violations," 

the Court should conclude that the Commission's final determination and assessment of civil 

penalties is "supported by a rational basis and does not indicate a clear error of judgment. 

In light of that conclusion, further analysis is neither required, nor permitted." Cox for US. 

Senate Comm., Inc. v. FEC, Civ. No. 03C3715, 2004 WL 783435, at *5 (N.D. Ill. Jan. 22, 2004). 

B. The Commission Reasonably Rejected Plaintiffs' Challenge to the 

Commission's Administrative Findings 

The Garcia Committee's February 26,2013 letter challenging the proposed 

administrative fine raised two arguments: 1) "that the Committee demonstrated use of 'best 

efforts,' and that the unfiled reports were due to an unintentional clerical error on the part of the 

Committee"; and 2) a request for "leniency due to the fact that [Garcia] is in the process of 

2 The Reviewing Officer also noted that the Commission had on April25, 2012 sent the 

Garcia Committee the Primary Election Report Notice, which informed all Texas primary 

candidate committees of their filing obligations. (AR066; AR069-078.) 

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winding down and any additional financial burden could potentially delay its ability to 

terminate." (AR007.) The Commission reasonably rejected both arguments, neither of which 

provided any basis for modifying the proposed administrative finding or civil penalty. 

The Commission sensibly determined that the Garcia Committee's "best efforts" 

argument lacked merit and rejected it. The Commission's regulations provide that an 

administrative-fines respondent may challenge a reason-to-believe finding on the grounds that 

the respondent "used best efforts to file in a timely manner" but was prevented from doing so 

"by reasonably unforeseen circumstances" beyond the respondent's control. 11 C.F.R. 

§ 111.35(b)(3); see also 2 U.S.C. § 432(i). The circumstances the Commission considers 

"reasonably unforeseen" include such systemic failures 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).3 The 

Commission's regulations categorically exclude from the best-efforts defense any errors that 

arise from the negligence or inexperience of a committee's staff. See 11 C.F.R. § 111.35(d). 

The Garcia Committee has never alleged that its failure to timely file the 48-hour notices 

resulted from any ofthe "unforeseen circumstances" covered by the best-efforts defense. FEC 

regulations explicitly state that a respondent's own negligence cannot qualify for the best-efforts 

defense. 11 C.F.R. § 111.35(d). The Commission thus acted reasonably not only in rejecting this 

3 In addition, the respondent can invoke the best efforts defense only if the report was 

"filed no later than 24 hours after the end of these circumstances." 11 C.F.R. § 111.35(b)(3)(ii). 

The Garcia Committee has not claimed that it filed its notices within 24 hours after the 

conclusion of any unforeseen circumstances. It filed the required 48-hour notices nearly four 

months later. See supra p. 7. "Plaintiffs' failure to report the [candidate] loans during the 48-

Hour Reporting Period quite clearly subverted 'substantial governmental interests' furthered by 2 

U.S.C. § 434(a)(6)(A)." Cox for US. Senate Comm., Inc., 2004 WL 783435 at *14 (declining to 

modify or set aside $22,150 civil penalty). 

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defense, but also in finding that the Garcia Committee had failed to timely file the 48-hour 

notices and assessing the $15,220 civil penalty. 

The Commission likewise acted reasonably in rejecting the Garcia Committee's request 

for "leniency," which has no legal basis in the Commission's administrative-fines regulatory 

scheme. Even if, as the Garcia Committee asserted, payment of the civil penalty "could delay 

[the Garcia Committee's] efforts to wind down and terminate the campaign" (AR007), such 

delays are not a legal basis for excusing a reporting violation. See 11 C.F.R. § 111.35(b)(1)-(3) 

(listing only permissible "grounds for challenging the reason to believe finding or proposed civil 

penalty," none of which concerns wind-down or termination delays resulting from payment of 

the penalty).4 

4 To the extent the Garcia Committee's complaint purports to challenge the Commission's 

administrative determination based on new arguments about an unspecified "safe harbor 

provision ... designed to encourage individuals to vote or register to vote" (Compl. ~ 8), or 

alleged inconsistencies between the civil penalty at issue here and unspecified fines for other 

violations by other individuals or committees in other, unrelated cases (Compl. ~ 11), the Garcia 

Committee has waived its right to assert such arguments, which were never presented to the 

Commission during the administrative proceedings under review. Indeed, the Commission's 

regulations 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." 11 C.F.R. 

§ 111.38. This rule is consistent with the reviewing court's limited role of reviewing the final 

agency decision "on the basis articulated by the agency itself," PBGC, 374 F.3d at 367. 

"'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."' Cunningham, 2002 WL 31431557, at *4 (emphasis added) 

(quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). "Thus, any 

objections not made before the administrative agency are subsequently waived before the 

courts." Id. (citation and footnote omitted). 

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CONCLUSION 

For the foregoing reasons, the Commission's imposition of an administrative fine was 

reasonable and fully supported by the administrative record. Accordingly, the Garcia 

Committee's petition to set aside the penalty should be rejected and the Commission's 

determination should be affirmed. 

September 19, 2013 

Respectfully submitted, 

Lisa J. Stevenson 

Deputy General Counsel - Law 

Bar No. 457628 (D.C.) 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

Bar No. 644486 (MA) 

kdeeley@fec.gov 

Erin Chlopak 

Acting Assistant General Counsel 

Bar No. 496370 (D.C.) 

0;ak:c.go~ s ~~ 

Benjamin A. Streeter III 

Attorney 

Bar No. 6181655 (IL) 

bstreeter@fec.gov 

FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Facsimile: (202) 219-0260 

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CERTIFICATE OF SERVICE 

I, Benjamin A. Streeter III, electronically submitted the foregoing document with the 

Clerk of the Court for the Northern District of Texas, using the electronic case filing system of 

the court. 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). 

Dated: September 19,2013 

Benjamin A. Streeter III 

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