‘Case 3:12-cv-00244-CRS Document 1-5 Filed 05/10/12 Page 1 of 1 PagelD #: 19

JS 44 (Rev. 0/11)

CIVIL COVER SHEET

‘The JS 44 civil cover sheet and the information contained herem neither replace hor supplement he fling and se
by local rules of court. This form, approved by the Judicial Conference of the United States in September 197:
the civil docket sheet, (SEH /NSTRUCTIONS ON NEXT PAGE OF THIS FORM)
I. (a) PLAINTIFFS

CONWAY FOR SENATE

s or other |

e off pleadn
uscot the

pers as required by law, except as provided
s required for

Clerk of Cour for the purpose of mating

DEFENDANTS
FEDERAL ELECTION COMMISSION

(b) County of Residence of First Listed Plaintiff JEFFERSON
(EXCEPT IN US. PLAINTIFE CASES)

County of Residence of First Listed Defendant. ~WASHINGTON, OC
(IN US. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THI! LOCATION OF
THE TRACT OF LAND INVOLVED.

NOTE:

rel 1) Al ate
Glen Behion Benton ® Reuse tte” womeys if Known)
555 Jefferson St., Sle 301, Paducah, KY 42001
Tel. No. (270) 443-8253

UL BASIS OF JURISDICTION | (risce on “x” in One Box Only) HJ. CITIZENSHIP OF PRINCIPAL PARTIES (Pace an “A” in (One Box for Plaing)
(For Deversaty Cares Only) ‘and One Bas for Defendoni)
O | US. Government 0 3 Federal Question PTF DEF PIF (DEF
Plaintitt (US. Government Not a Party) Citizen of This State 1 GL ocomporated or Principal Place = AA
cof Business In This Stale
2 US Government O14 Diversity Citizen of AnotherSe = «2-2 Incorporated ond Principal Pace «= OS 5
Defendant ‘Andicate Ciszenahip of Parties 1m Hem Il) ‘of Business In Anoiher State
Crrizea oF Subject of @ 93 O 3 Foreign Nation a6 06
Foreign Countey
IV. NATURE OF SUIT (tace an "x" in One Rox Only) :
[ CONTRACT TORTS FORFEITUREPENALTY BANKRUPTCY OTHER STATUTES]
© 110 Insurance PERSONAL INJURY PERSONALINSURY 09 625 Drug Relaicd Seizure [£7 422 Appeal 28 USC 158 | C375 False Chaims Act
© 120 Marine 10 310 Airptane © 365 Personal Injury - of Property 21 USC 881 |G 423 Withdrawal © 400 State Reapportionment
0130 Milles Act 10 315 Airplane Product Product Linbility | 690 Oxher 2BUSC 157 410 Antirus.
© 140 Negotiable Instrument Labi © 367 Health Care/ D430 Banks and Banking
1B 150 Recovery of Overpayment |CJ 320 Assauh, Label & Pharmaceutical 0 450Commerce
& Enforcement of Judgment Personal Injury 1 820 Copyrigtns © 460 Deportation
151 Medicare Act 0 330 Federal Employers’ Product Liabilay 1 830 Patent © 470 Racketeer Influenced and
© 152 Recovery of Defaulted Liability 368 Asbesios Personal }O) #40 ‘Trademask Corrupt Organizations
Student Loans 1 340 Marine Injury Product © 480 Coosurner Credit
(Exel. Vetcrans) IO) 345 Marine Product Liability TABOR SOCAL CF 490 CableSat ‘TW
0 153 Recovery of Overpayment Liabiliry PERSONAL, PROPERTY [C) 710 Fair Labor Standanls |) 861 HIA (1395M © 850 Securities/Commodities”
of Veteran's Bencfls ID 350 Motor Vehicle © 370 Other Fraud ‘Act OF 862 Black Lung (923) Exchange
© 160 Stockholders’ Suits 1D 353 Motor Vehicle © 371 Truth in Lending [0 720 Labor/Myymi. Relations |) 863 DIWC/DIWW (405(g))_] 890 Oxher Statutory Actions
0190 Other Comract Product Lanbity (380 Other Personal 6 740 Rwhway Labor Act C864 SSID Tulle XVI © 891 Agriculrural Acts
D195 Coutract Product Lisbility |G) 360 Other Persooa! Property Damage [0 751 Family and Medical =|) 865 RSI (405(g)) © 893 Environmental Matters
© 196 Frunchise Injury 385 Property Daniage Leave Act D895 Freedom af Information
(© 362 Personal Injury ~ Product Liability [C9 790 Other Labor Lisigatvon ‘Act
Med, Malpractice 1S) 791 Empl Rel. toc. © 896 Arbitravon
CIVILRIGUTS PRISONER PETITIONS Secunty Act FEOERAL TAX SUITS |S 899 Adminisrative Procedure
1440 Other Civil Rights [© $10 Motions 1o Vacate D870 Taxes (US. Plaintift ‘AcUReview or Appeal of
C1 220 Foreclosure JO 441 Voting Sentence e¢ Defendant) ‘Agency Decision
© 230 Rent Lease & Ejectment Habens Corpus: © 871 IRS—Third Party 0 990 Consatutionality of
© 240 Tons to Land 530 General 26 USC 7609 State Statutes
© 245 Tort Product Liability 333 Death Penalty TMMIGRATION

© 290 All Ouner Real Propeny

a
a
10 443 Ames, w/Disabilities - | O
Employenent Q

1 446 Amer. wiDisabstines - |
Other o

$40 Mandamus & Orher
350 Civil Rights

355 Prison Condition
‘560 Civil Detainee +

TF 463 Naturalization Application
]O 463 Habeas Corpus -

Alien Detmace

(Prisoner Petition)

10) 448 Education Conditions of C465 Other Immigration
Confinement Actions
Vv. ORIGIN (Place an "X" im One Box Only)
1 Original 1-2 Removed from (9.3 Remandedfrom 4 Reinstatedar 5 Transferred from 6 6 supidisinct
Proceeding State Court Appellate Court Reopened grothes Litigation

VI. CAUSE OF ACTION

[Cite the U.S. Civil Statute under whic
Administrative Procedure Act

seq.

nin cite Jurisdictional statutes unless diversity)

BUsc.g bse

[Brief descripuon of cause:

Review of final administrative Finding by Federal Election Commission

VII. REQUESTED IN
COMPLAINT:

O CHECK IF THIS 15 A CLASS ACTION
UNDER FRCP. 23

DEMAND §

CHECK YES only i
JURY DEMAND:

if demanded in complaint
Des _ No

Vill. RELATED CASE(S)

(See muinuctions)

IF ANY JUDGE DOCKET NUMBER
DATE ‘SIGNATURE OF ATTORNEY OF RECORD
05/40/2012 /s! Glenn D. Denton
FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE



Case 3:12-cv-00244-CRS Document 1-2 Filed 05/10/12 Page 2 of 4 PagelD #: 13

Greenwood For Congress, Inc. v. Federal Elec. Com'n, Not Reported in F.Supp.2d (2003)

sent requests for supplemental information to appropriate
members of the FEC's staff.

As part of the Committee's review of the matter, Mr. Clare
weighed the different items allegedly sent to the FEC. As
indicated in his affidavit on the matter submitted to the FEC,
Mr. Clare reported that through reenactments, a Zip disk, a
hard-copy version of the Report with a binder clip, a copy
of the cover letter and a manila envelope weighed 2 1/8
pounds. (fd, at 55.) The same package without the Zip disk
weighed 1 7/8 pounds. The air bill of the package received
by the FEC on January 30, 2002, as filled out by Mr. Clare,
indicated a weight of 2.20 pounds. (/d. at 61.) FedEx listed the
weight of the package as 3 pounds. (/d. at 63.) The Committee
maintains that FedEx will round up to the next whole number
in calculating a package's weight, and that FedEx's indication
of 3 pounds implies that the package weighed between 2 and
3 pounds, and that consequently, the package received by the
FEC contained a Zip disk. (/d. at 55.)

Notwithstanding this circumstantial evidence with respect
to the Initial Package's contents, the Reviewing Officer
found that: (I) The FEC did not receive a Zip disk from
the Committee on January 30, 2002; (ii) a Zip disk was
received on February 7, 2002 but was rejected because it
‘was on an incorrect medium and was not accompanied by
a signed summary page; and (iii) the Committee's 2001
Year-End Report was not electronically filed until February
8, 2002. (/d. at 81-82.) As a result of these findings, the
Reviewing Officer recommended that the FEC make a final
determination that the Committee and its Treasurer violated 2
U.S.C. § 434(a) and assess a $3,100.00 civil money penalty.
(éd. at 82.) The recommendations were sent on November 29,
2002 to the Committee, which filed a timely response to the
recommendation on December 9, 2002.

On December 20, 2002, the Commission voted unanimously
to follow the recommendation of the Reviewing Officer
to assess a civil penalty of $3,100.00 (/d. at 131.) The
Committee was notified of the decision by letter dated
December 23, 2002. (dd, at 133.) The Committee petitioned
this Court for review of the Agency Verdict on January 22,
2003.

Til. DISCUSSION
A. Standard of Review

Summary judgment is appropriate when there is no genuine
dispute of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,
9) L.Ed.2d 202 (1986). “In a case involving judicial review
of agency action, however, summary judgment is simply the
procedural vehicle for asking the court to decide, on the basis
of the administrative record, the legal question of whether
an agency reasonably could have found the faets as it did.”
Cunningham v. Fed. Election Comm'n, 2002 WL 31431557,
at *3 (S.D.Ind.2002) (citing Hunger v. Leininger, 15 F.3d
664, 669 (7th Cir.1994)).

*3 The Administrative Procedure Act, 5 U.S.C. § 706(2)
(A), provides that agency action can be set aside if the eourt
finds it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971) (discussing standard under which
administrative findings may be overturned under 5 U.S.C.
§ 706). In assessing the agency's findings, it is incumbent
upon the court to assure itself that the ageney “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action, including a ‘rational conneetion between the facts
found and the choice made.” * Bagdonas v. Dep't of Treasury,
93 F.3d 422, 426 (7tb Cir.1996) (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239,
9 L.Ed.2d 207 (1962).

B. Treatment of the Evidence by the FEC

The Court's inquiry concems whether the FEC's
determination that the Committee failed to file its 2001
Year-End Financial Report was arbitrary and capricious.
In this case, there is nothing in the record to suggest that
any concerted effort was made by the FEC to determine
whether the disk was actually delivered in the Initial Package.
There was no actual evidence in the record, such as
affidavits from FEC employces who handled the package or
appropriate excerpts from an employee handbook detailing
the procedures by which such packages are to be handled,
indicating that the FEC could declare that it was certain,
or even confident, that it was not responsible for the loss
of the disk. The only confirmation presented by the FEC is
the fact that the report was not uploaded into their system
until February 8, 2002. From this, they conclude, apparently
based on nothing more than a belief in the infallibility of
their procedures and employees, that the disk must not have
been sent to them in the Initial Package. The only validation
proffered is Ms, Brown's indication that she was unable to
find a rccord of the disk or its contents in the FEC's system.

VéestiawNext © 20172 Taomsen Reuters. No clairn

ginal US. Government Works,



Case 3:12-cv-00244-CRS Document1 Filed 05/10/12 Page 4 of 6 PagelD #: 4

18. On April 1, 2011, the Commission found Reason To Believe (“RTB”) that
Plaintiff violated 2 U.S.C. § 434(a) and assessed a civil penalty of $4,950.00 under the schedule
of penalties at 1] C.F.R. §111.43.

19. On April 20, 2011, Raymond Davis with the FEC’s Office of Public Records told
Treasurer Wayne Stratton and Paula Pasley in a telephone call that it was possible, when the
envelope was opened for review by the Senate Sergeant at Arms, that not all information may
have been returned to the envelope before being forwarded on. See Affidavit of Paula Pasley,
July 8, 2011, which is attached hereto as Exhibit C.

20. The Commission received a written response challenging the RTB on May 6,
2011.

21. The Reviewing Officer made a recommendation dated June 29, 2011, that the
Commission make a final determination that Plaintiff violated 2 U.S.C. § 434(a) and assess a
$4,950.00 civil money penalty.

22. Treasurer R. Wayne Stratton subsequently issued a written response that was sent
to the Commission and dated July 8, 2011, which is attached hereto as Exhibit D.

23. Treasurer R. Wayne Stratton disputed the fact from the Reviewing Officer
Recommendation (“ROR”), stating he does not recall having told the Compliance Analyst that
the Year End Report was mailed separate from the other reports sent via Federal Express on
January 25.

24. On April 10, 2012 the FEC sent a certified letter to R. Wayne Stratton in his
official capacity as treasurer advising that it had adopted the reviewing officer’s recommendation
and made its final determination.

25. This is an appeal of that Final Determination and Civil Money Penalty.


Case 3:12-cv-00244-CRS Document 1-4 Filed 05/10/12 Page 1 of 2 PagelD #: 17

yur 0 20d §2 92K yones Wale & mallingly No. /UbD OP.

JNM

Sones, Nale & Marcingly PLC 20 JUL -3 WU

July 8, 2011

Commission Secretary

~ 999 E Street NW —
Washington, DC 20463

Re: C00460766
AF #2414

{am Wayne Stratton, Treasurer of tlie Conway for Senate campaign, This Is my written response to the
Reviewing Officer Recommendation and Findings. The only fact § dispute is the last paragraph on page ~
2. | do not recall stating that the year end report was sent separate from other Conway for Senate
reports recelved by the Senate Office of Public Records. | think | sald that according to the receptionist
at Jones, Nale & Mattingly, the report was sent Federal Express to the Senate Office of Public Records. |
have attached 2 affidavits of individuals at INM supporting that fact.

I think | can explain the delay In responding to the orlginal notice of February 17, 2011. This notice was
mailed to the P. O. Box of the campaign. The campaign at that time had shut down and the notice was
not recelved In my office until March 10, 2011. We responded immediately to the notice on the day It
was received. | served as Chairman of the Kentucky Registry of Election Finance and take my
responsibillty as Treasurer very seriously.

I would Sike to describe our process In the report preparation and mailing of the Conway for Senate
reports. We use NGP Software for reporting. Finance reports were prepared by Nick Braden, a paid
staffer of the campaign, and e-malled to myself and Perkins Coie, a Washington DC law firm, for reviaw.
Any corrections identified were then made by Nick Braden, and a final copy was-e-malled to me for
signature. I have attached his e-mall, dated January 24, 2011, in support of that fact. Paula Pasley then
printed and assembled the reports for my signature. | have attached her affidavit in support of that
function for the report in question. | previously attached an affidavit of Marie Johnson of JNM who sent
the report via Federal Express.

lam not sure what happened, or why the 4" quarter filing was not racelved timely by the Federal
Election Commission, but | do think it was sent by our office timely. The report was prepared timely (see
e-mail) and we would have had no reason not to send it timely. Currently I volunteer as Treasurer for 1
congressional campaign (Chandler for Congress), 1 federal PAC (Kentucky Forward PAC), 2 state PAC's,
and 1 statewide campaign, none of which has ever had any delinquent filings. | volunteer because |
believe in the democratic process and want to do my part. do take this responsibility seriously.

Certified Public Accountamus and Advisors
642 South Fourth Staat, Suita 200 Loutsvilla, Kontucky 40202 vel: §02.683.0248 fax: 807.588.1680 wenw.jnmepe com

EXHIBIT D


Case 3:12-cv-00244-CRS Document 1-1 Filed 05/10/12 Page 3 of 5 PagelD #: 9
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Case 3:12-cv-00244-CRS Document’ Filed 05/10/12 Page 6 of 6 PagelD #: 6

2. An order modifying or setting aside the Commission’s final determination and
assessment of a civil money penalty pursuant to 2 U.S.C. § 437g(a)(4)(c)(iii) and 11 C.F.R. §
111,38;

3. An injunction against the Commission enforcing or collecting the $4,950.00 civil
money penalty;

4. Legal fees and costs of suit incurred by Plaintiff; and

5. Such other relief as this Court deems just and appropriate.

Respectfully submitted,
DENTON & KEULER, LLP
P.O. Box 929

Paducah, KY 42002-0929
Tel. No.: 270-443-8253

Fax No.: 270-442-6000

/s/Glenn D, Denton
Glenn D. Denton

ATTORNEY FOR CONWAY FOR SENATE


Case 3:12-cv-00244-CRS Document1 Filed 05/10/12 Page 5 of 6 PagelD #: 5

Cause of Action — APA Violation

26. The FEC’s finding that Plaintiff violated 2 U.S.C. § 434 (a) for filing its 2010
Year End report late, and its assessment of a monetary penalty in the amount of $4,950.00 is
arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law for
the following reasons:

a. In making its final determination, the FEC failed to consider or adequately
take into account the only objective evidence introduced by either party.

b. In making its final determination, the FEC failed to consider or adequately
take into account the statements and sworn affidavits submitted that the 2010 Year End Report
was included in the January 25, 2011 overnight Federal Express package sent to the Senate
Office of Public Records.

c. The Commission’s final determination runs counter to the evidence before
it, which demonstrated an “existence of factual errors,” justifying the setting aside or
modification of the April 1,2011 RTB.

d. There has been substantial compliance with the law, and the
Commission’s opinion, that there has been a technical violation which justifies the imposition of
a monetary penalty, is unreasonable and an abuse of discretion under the facts,

WHEREFORE, Plaintiff requests:

1. A declaration that the Commission’s final determination that Plaintiff violated 2
U.S.C. § 434(a) by filing its 2010 Year End Report late, and its assessment of a civil money
penalty of $4,950.00, is arbitrary, capricious, an abuse of discretion, and otherwise not in

accordance with law;


Case 3:12-cv-00244-CRS Document 1-4 Filed 05/10/12 Page 2 of 2 PagelD #: 18

vor OF Zvi} bison vones mare wy matlingly Wo. syoo ot, 3

As stated earlier, this was a volunteer position and | received no compensation from the Conway for
Senate campaign. As $4,950.00 is a lot of money to me and my family, | ask that you please abate the
penalty.

Thank you for your consideration in this matter.

Very truly yours,

JED Pa

R, Wayne Stratton

RWS/pmp
Enclosures

Jones, Nale & Mattingly PLC


Case 3:12-cv-00244-CRS Document 1-1 Filed 05/10/12 Page 2 of 5 PagelD #: 8

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. Case 3:12-cv-00244-CRS Document 4 Filed 05/14/12 Page 1 of 2 PagelD #: 23

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Western District of Kentucky

CONWAY FOR SENATE

)
_ ) me
Plaimify ) :
md
v. ) Civil Action No. 3:12CV-244-S z
FEOERAL ELECTION COMMISSION )
— ) ‘ -
Defendant ) 7
SUMMONS IN A CIVIL ACTION
To: (Defendant's name and address) FEDERAL ELECTION COMMISSION us

Office of General Counsel
999 E. Street, NW
Washington, DC 20463

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you recived it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States deseribed in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the auached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney,
whose name and address are:

Glenn D. Denton

Denton & Keuler, LLP
555 Jefferson Street, Suite 301
Paducah, KY 42001

If you fail to respond, judgment by default wiil be entered against you for the relicf demanded in the complaint
You also must file your answer or motion with the court.

Date: __ 5/14/2012



Case 3:12-cv-00244-CRS Document 1-1 Filed 05/10/12 Page 5 of 5 PagelD #: 11

vule 0. 2UEI is 24rm vones Wate & Mallingiy No. /U0d row

FedEx Express USS, Mall: PO Box 727
> 4 . Customer Support Trace Memphis, TN 38 {94-4643
& 3875 Airways Boulevard

Module tt, 4th Floor Telephone: 001-260-2600
Express Momphie, TN 38716

May 6.2011

Dear Customer: '

The following ta the praof-of-delivery for tracking number 784965102161.

Delivery Information:

Status: Deliverag Delivery location: 6330 COLUMBIA PARK RO
Slaned for by: ATURNER Dellvery date; Jan 26, 2011 11:01
Bermice type; Priority Overnight

Shipping Information:

Tracking number: 794365102161 Ship dete: Jan 25, 2011

Recipient: Shipper: .
SENATE OFFICE OF PUBLIC RECORD MARIE JOHNSON: 1
SENATE OFFICE OF PUBLIC RECORD JONES, NALE & MATTINGLY

232 HART SENATE OFFICE 8LDG 642 S FOURTH ST SUITE 300

WASHINGTON, OC 20510 US LOUISVILLE, KY 40202 US

Thank you lor choosing FedEx Express.

FedEx Worldwide Customer Service
{00 Goredex 1.800.463.3339



Case 3:12-cv-00244-CRS Document 1-1 Filed 05/10/12 Page 4 of 5 PagelD #: 10

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Case 3:12-cv-00244-CRS Document 1-1 Filed 05/10/12 Page 1 of 5 PagelD #: 7

vil, OF QVIb i:23TM Jones Nale & Mattingly No. /Ubd oa)

May 5, 2013

Affidavit of Lynn-Marle Johnson

Comes Lynn-Marie Johnson, after first being duly sworn, and states as follows:

lam the Receptionist at Jones, Nele & Mattingly PLC

On January 25, 2011, | was given set of reports on the campalgn of Conway for Senate to be. shipped to
the Senate Office of Public Records. This included three respanses to inquiries and amended reports as
well as one original year-end report of receipts and disbursaments covering the perlod from November
23, 2010 through Dacamber 31, 2010. The reports and letters were packaged In a Faderal Express
envelope and shipped priority overnight to the Senate Office of Public Records on January 25, 2011.
Tracking confirmation shows the package was delivered and signed for on January 26, 2014. Copies of
the documents Ih question, Fed Ex shipping label, and delivery confirmation repart and recipient
signature are Included with this statement.

Signed:

: 4
Lyfin-Marle Johiison

STATE OF KENTUCKY
COUNTY OF JEFFERSON

Sworn to and acknowledged before me by Lynn+Marie Johnsan, on this 5S" day of May, 2011.

My commission expires jA-—v. M1,"01
i ilk M+ 2 slaw a

Notary Public, af
State at Large, Kentucky

EXHIBIT A


Case 3:12-cv-00244-CRS Document1 Filed 05/10/12 Page 3 of 6 PagelD #: 3

10. R. Wayne Stratton reviewed each of the reports emailed by Mr. Braden in
preparation for mailing.

11. On January 25, 2011, Lynn-Marie Johnson, a receptionist at treasurer R. Wayne
Stratton’s office “packed” the “year-end report of receipts and disbursements covering the period
from November 23, 2010 to December 31, 2010” into a Federal Express envelope. Johnson sent
the envelope overnight to the Senate Office of Public Records.

12. Federal Express Tracking Records indicate the package was shipped on January
25, 2011 under the tracking number 794355102161 and the package had a weight of 1.0 lb.

13. Federal Express tracking records indicate that the package was delivered and
signed for by “A. Turner” on January 26, 2011 at 11:01 AM. See Affidavit of Lynn-Marie
Johnson, May 5, 2011, and attached documents thereto, which is attached hereto as Exhibit A.

14. The hard-copy version of the report submitted to the FEC is available online at:
http://images.nictusa.com/cgi-bin/fecimg/?_11020093308+0.

15. On February 17, 2011, an agent of the FEC wrote to Mr. Stratton indicating that
the 2010 Year End Report had not been filed.

16. Plaintiff avers that the report was timely filed and included all of the required
information by the FEC in a timely fashion.

17. Defendant has relied upon and concluded, based on nothing more than a belief in
the infallibility of FEC procedures and employees that the report must not have been sent to them
in the Federal Express package. A position similar to that of their position in Greenwood for
Congress, Inc. vs. Federal Election Commission, 2003 WL 22096125 (2003). A copy of that

opinion is attached hereto for the Court’s convenience as Exhibit B.


Case 3:12-cv-00244-CRS Document 1-2 Filed 05/10/12 Page 3 of 4 PagelD #: 14

Greenwood For Congress, Inc. v. Federal Elec. Com'n, Not Reported in F.Supp.2d (2003)

Despite the lack of evidence supporting the conclusion
that the disk was not included in the package, the FEC
clearly disregarded relevant, albeit circumstantial, evidence
presented by the Plaintiff. In an affidavit submitted to the
Commission, Mr. Clare asserts that he personally placed the
Zip disk in the envelope and sealed it in preparation for its
submission. (Administrative Record at 55.) Furthermore, Mr.
Clare's experiment of creating a duplicate of the package
and weighing its contents suggests that the Zip disk was, in
faet, placed in the FedEx package received by the FEC. (Id.
at 55-56.) Defense counsel! admitted at oral argument that
the FEC Reviewing Officer did not even attempt to replicate
Mr. Clare's experiment when making his administrative
determination.

C. Appropriateness of the Zip Disk

The FEC also maintains that it is immaterial whether the
Zip disk was included in the Initial Package, as a Zip disk
represents an improper medium and would have been rejected
even if it had been received and processed by the FEC.
However, it is unclear what would have happened had the
FEC been able to inform the Committee on January 30,
2002 that the medium submitted was improper. Under such a
scenario, it is possible that the Committee would have been
able to submit an eleetronie version of the report on a medium
acceptable to the FEC, as it did on February 8, 2002, by the
January 31, 2002 deadline.

“4 More importantly, it is not clear that the Committee's
choice of medium was improper. There is nothing in the
record to suggest that the FEC indicated that it would
only accept electronic versions of the report submitted

on 3.5 inch disks.? The applicable statute and regulation
do not specifically require the submission of a 3.5 inch
disk, The relevant regulation states that data must be
submitted on “computerized magnetic media.” 11 C.F.R. §
104.18(d) (2001). The FEC's own regulations specify only
that electronic submissions delivered by magnetic media
must be on “floppy disks.” 61 Fed.Reg. 42374 (Aug. 15,
1996). The term “floppy disk,” which originally described
the 5.25” format that is considered a rclic today, has in
common parlance become a generic term for various forms of
electronic media. Both a Zip disk and a 3.5 inch disk equally
comport with this general description. If the Commission
intends only to accept one form of “floppy disks,” it must
clearly indicate that intention. Furthermore, there is nothing
to suggest that the contents of the Zip disk were in an invalid
format, and it appears the format accepted by the Commission

on the disk received on February 8, 2002 was the same
format as the earlier versions submitted by the Committee.
(Administrative Record pp. 55-57). Therefore, I find that the
Committee should not have been penalized for submitting its
electronic filing on a Zip disk.

Finally, the Commission maintains that the February 7, 2003
submission was non-compliant because the Zip disk was
not accompanied by a valid summary page signed by the
treasurer of the Committee. The Court finds the Commission's
contention particularly troublesome considering the fact that
both the Initia! Package and the package received on February
8, 2003 contained valid, signed summary pages. In effect, the
Commission claims that the Committee's effort to re-send the
allegedly lost disk was inadequate due to the Committee's
failure to include a duplicate of the previously acceptable
summary page.

The Overton Park Court opined that in order to make finding
that an agency verdict was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” (5 U.S.C.
§ 760(2)(A)), courts must consider whether “the [Agency]
decision was based on a consideration of the relevant factors
and whether there had been a clear error of judgment.” 401
US. at 416. Here, failing to exercise independent judgment
in arriving at its decision, without any factual basis, and
without consideration of contrary evidence before it, the FEC
arbitrarily and capriciously determined that the Committee
had erred in failing to include a disk in the January 30, 2002
package. It simply took as a matter of faith that the disk could
not have been lost once the package had been received by
them. Additionally, the FEC took no steps to investigate the
missing disk othcr than to verify that the disk did not end up
in the placc that it should have had it been properly processed
by the FEC. Furthermore, the FEC erred in concluding that its
own regulations definitively required that electronic reports
submitted on magnetic media could only be delivered on 3.5
inch disks.

1H. CONCLUSION

“5 For the reasons set forth above, I deny Defendant's
motion for summary judgment, and grant summary judgment
in favor of Plaintiff. An appropriate Order follows.

ORDER

AND NOW, this 15" day of August, 2003, upon
consideration of the cross-motions for summary judgment,

rai US, Govern



Case 3:12-cv-00244-CRS Document 1-3 Filed 05/10/12 Page 1 of 1 PagelD #: 16

Yule O. 2UIT Fi 99FH vones Ware & Mattingly No. /U00 ro 4

July 8, 20114

Affidavit of Paula Pasley

Comes Pauls Pasley, after first being duly sworn, and states as follows:

1am the Office Administrator at Jones, Nale & Mattingly PLC, and | also assist R. Wayne Stratton in the
filling of the Campaign Finance Reports for Conway for Senate.

On January 25, 2014, Nick Braden, who was the Director of Operations with the Jack Canway for U.S.
Senate campalgn, e-mailed to me four (4) reports for filing. These reports included an amendment to
the Form 3 ~Third Quarter 2010, an amendment to Form 3 - 12-Day Pre-Election report for the General
Election 2010, an amendment to Form 3 — 30 Day Post Election Report for the General Election 2010,
and an orlginal Form 3 — Fourth Quarter 2010 report. ! printed out all 4 filings, with applicable letters,

and, with Treasurer Wayne Stratton, reviewed each In preparation for mailing that same day. After
Wayne's review, these reports were then tutned over to Marie Johnson, receptionist at Jones, Nale &
Mattingly, for mailing to the Senate office of Public Records.

In response to “Analysis”, paragraph three of the “Reviewing Office Recommendation “, dated June 29,
2011, the Superintendent states that correspondence was sent from her office on February 17, 2011,
indicating that the Year-End Report, which she had not recelved, must be filed immediately, and to
which she said we did not respond until March 10, three weeks after the letter was sent. Please be
aware that the letter was not sent directly to the campaign Treasurer, but rather to a P. O, Box used
during the campaign, which is not accessible by the Treasurer. As soon as Treasurer Wayne Stratton
recelved the letter, {t was acted upon as soon as possible. We take any, and all, correspondence from
the Federal Election Commission as extremely urgent In nature, and review and research In a timely
manner.

Furthermore, on April 20, during a call with Treasurer Wayne Stratton and the Compliance Analyst, and
a subsequent call to Raymond Davis, with the Office of Public Records, we were made aware that, when
a report is sent to 232 Hart Senate Office Building (the mailing address given to us, and used for all
filings) it is received by the Senate Sergeant at Arms for opening, and then forwarded to the appropriate
party. Mr. Davis Indicated that it is possible, when the envelope was opened for review that not alt
information may have been returned to the envelope before being forwarded on. In light of this
statement, we believe that the 4" quarter report could have been lost by a representative of the Senate
Sergeant at Arms.

Paula Pasley

_ STATE OF KENTUCKY
COUNTY OF JEFFERSON

Sworn to and acknowledged before me by Fula. rales. on this Peay Gly 26 ! {
My commission vores Cugusote 6,013

A). CPs

State at Large, Kentucky

EXHIBIT C


Case 3:12-cv-00244-CRS Document1 Filed 05/10/12 Page 2 of 6 PagelD #: 2

of the 2010 Year End report when Plaintiff mailed it and when it was received by Federal
Express.
Jurisdiction and Venue

4, This Court has jurisdiction under 2 U.S.C. § 437g(a)(4)(C)(iii) and 28 U.S.C. §
1331.

5. Venue lies in this judicial district pursuant to 2 U.S.C. § 437g(a)(4)(C)(iii) and 28
USC. § 1391(e).

Parties

6. The plaintiff, Conway for Senate, is a political committee that was the principal
campaign committee for Jack Conway’s 2010 campaign for the United States Senate. Plaintiff is
registered with the Federal Election Commission pursuant to 1] C.F.R. § 102.1(a), and its FEC
Committee Identification Number is C00460766. Plaintiff's treasurer is R. Wayne Stratton.

7. The defendant, Federal Election Commission, is the federal agency responsible
for the administrative and civil enforcement of the FECA. 2 U.S.C. § 437c(b).

Facts

8. Under the FECA, a political committee, like the plaintiff, must file a Year End
Quarterly Report covering the period from November 23 to December 31, by January 31 of the
following calendar year. 2 U.S.C. § 434(a)(2)(A)(iii).

9. On January 24, 2011, Nick Braden, Director of Operations for Conway for
Senate, emailed a zip folder containing several FEC reports to Treasurer R. Wayne Stratton, Mr.
Stratton’s assistant Paula Pasley, and Sean Riley, former Finance Director for Conway for
Senate. The email included as an attachment the 2010 Year End Report which Mr. Braden

informally described as the “Q4 Report.”


Case 3:12-cv-00244-CRS Document1 Filed 05/10/12 Page 1 of 6 PagelD #: 1

148326 Electronically filed

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. _ 3:12CVv-244-s

CONWAY FOR SENATE PLAINTIFF
VS. COMPLAINT
FEDERAL ELECTION COMMISION
(Office of General Counsel
999 E Street, NW .
Washington, DC 20463) DEFENDANT

Comes the plaintiff, Conway for Senate, by and through counsel, and for its Complaint
states as follows:

Introduction

1. This action arises under the Federal Election Campaign Act of 1971, as amended,
2 U.S.C. § 431 et seg. (2001) (“FECA”), and the Administrative Procedure Act, 5 U.S.C. § 551
et seq. (“APA”).

2. Plaintiff brings this action for review of a final determination by the Federal
Election Commission (“FEC” or “Commission”) that (1) Plaintiff violated 2 U.S.C. § 434(a), and
(2) its assessment of a civil penalty of $4,950.00 under the schedule of penalties at 11 C.F.R.
§111.43.

3. The FEC found the above violation and assessed the above penalty in spite of the
un-rebutted, un-contradicted evidence that Plaintiff timely sent the 2010 Year End Report ina
package to the FEC’s agent, the Senate Office of Public Records, via Federal Express overnight

delivery, on January 25, 2011. The FEC ignored the statements and sworn affidavits from the

Conway for Senate campaign and its agents that the Federal Express package contained a copy


: Case 3:12-cv-00244-CRS Document 1-2 Filed 05/10/12 Page 1 of 4 PagelD #: 12

Greenwood For Congress, Inc. v. Federat Elec, Com'n, Not Reported in F.Supp.2d (2003)

2003 WL 22096125,
Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.

GREENWOOD FOR CONGRESS, INC., Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant.

No. Civ.A. 03-0307.| Aug. 15, 2003.

Attorneys and Law Firms

Robert O. Baldi, Baldi, Cepparulo & Williams, P.C., New
Hope, PA, for Plaintiff.

Lawrence H. Norton, Leigh G. Hildebrand, Richard B. Bader,
Stephen E, Hershkowitz, Federal Election Commission,
Washington, DC, Linda Shafer Bocchino, U.S Attorney's
Office, Philadelphia, PA, for Defendant.

Opinion

MEMORANDUM AND ORDER
SCHILLER, J.

“1 This lawsuit arises from a dispute between Greenwood
for Congress, Inc. (the “Committee”) and the Federal Election
Commission (the “FEC” or the “Commission”) over an
alleged late electronic filing of financial reports required
under the Federal Election Commission Act (“FECA”), 2
U.S.C. §§ 431-437 (2001). Presently before the Court are
the parties’ cross-motions for summary judgment. For the
reasons set forth below, I deny the FEC’s motion and grant
the Committee's motion.

I, BACKGROUND

The Committee is the principal campaign committee for the
Honorable James C. Greenwood, who currently is the United
States Representative for the Eighth Congressional District
of Pennsylvania. Under FECA, the treasurers of principal
campaign committees of candidates for the United States
House of Representatives must file periodic reports detailing
such committee's receipts and expenditures, On December
28, 2001, the FEC sent to the principal campaign offices
of all congressional candidates, including the Committee,
notices informing them that their Year-End Financial Reports
would be due on January 31, 2002, as required by 2 U.S.C.

§ 434(a)(2)(BM Gi) and 1] C.F.R. § 104,5(a)(2)(B) (2001).
Included with the notice was an instructional guide entitled
“Electronic Filing.” The guide detailed which organizations
were required to file electronically, and it appears from the
record that the Committee understood that it was required to
file electronically.

On January 30, 2002, the FEC received a FedEx package from
the Committee (the “Initial Package”). The FEC asserts that
the package contained only a paper copy of the Committee's
2001 Year-End Report and a cover letter detailing the

contents of the package. (Administrative Record! at 81.) The
Committee maintains, however, that in addition, the package
contained a high-capacity Zip disk that held an electronic
copy of the report in the format required by the FEC. (Id. at
55.)

On February 4, 2002, the FEC sent a Mailgram to the
Committee indicating that the FEC had not received an
electronic version of the report and that the Committee's
reporting requirement would be considered unfulfilled until
such time as they filed electronically. (/d. at 14.) In response,
Eric Clare, the Campaign Manager for the Committee, called
FEC employee Dayna Brown on February 6, 2002. Ms.
Brown stated that although the FEC records available to her
indicated that no disk had been received, thc cover letter to the
January 30, 2002 package referenced a disk as being included
with the package. (Id. at 78.)

After the phone conversation, Mr. Clare created a copy of
the report, saved it to a Zip disk, and sent the disk via
Federal Express with another cover letter to the FEC. This
package was reccived on February 7, 2002. On that same
day, a staff member in the FEC's Electronic Filing Office
phoned Mr. Clare and indicated that the FEC was rejecting
the filing because it was submitted on an “incorrect medium.”
In response, Mr. Clare saved another copy of the report to a
3.5 inch floppy disk, which he sent via Federal Express to the
Commission on February 7, 2002. (Id. at 79.) On February
8, 2002, the 3.5 inch disk was received and its contents were
processed and posted on the Internet by the FEC. (Id. at 80 .)

*2 On June 14, 2002, the Commission determined that
the Committee and its treasurer, Robert Baldi, had failed to
file their 2001 Year-End Report on time and assessed the
Committee an administrative fine of $3,100.00. On June 19,
2002, a notice of the determination and fine was sent to
the Committee, and the Committee filed a timely response
with supporting documentation. (/d. at 78.) After reviewing
the Committee's response, the FEC’s Reviewing Officer

ve



Case 3:12-cv-00244-CRS Document 1-2 Filed 05/10/12 Page 4 of 4 PagelD #: 15

Greenwood For Congress, Inc. v. Federal Elac. Com'n, Not Reported In F.Supp.2d (2003)

and following oral argument thereon, and for the foregoing

3. Summary Judgment is entered in favor of Plaintiff and
reasons, it is hereby ORDERED that:

against Defendant.
1, Plaintiff Greenwood for Congress, Inc. Motion for

4, The Clerk of the Court is directed to close this case for
Summary Judgment is GRANTED.

statistical purposes.
2. Defendant Federal Election Commission Motion for

Summary Judgment is DENIED.
Footnotes
1 Refers to the Administrative Record for this malter, designated by the Federal Election Commission as Certified Administrative

Record for Administrative Fines # 554.

2 The record indicates that the Frequently Asked Questions (FAQ) webpage of the FEC's websile stated only 3.5 inch disks would be
accepted, The Court agrees with Plaintiffs argument that there is no valid reason why the Committce ought to have been aware of
the contents of the FAQ prior to submitting the report.

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

Thomsor: Reuters, No cian to o