1

UNITED STATES DISTRICT COURT 

DISTRICT OF MASSACHUSETTS 

__________________________________________ 

 ) 

ROBINSON COMMITTEE, LLC and ) 

JACK E. ROBINSON, ) Case No. 1:10-CV-11335-GAO 

Petitioners, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 Respondent. ) 

__________________________________________) 

PETITIONERS’ OPPOSITION TO RESPONDENT’S 

RENEWED MOTION TO DISMISS THE PETITION 

 Petitioners Robinson Committee, LLC (“Committee”) and Jack E. Robinson 

(“Robinson”) hereby oppose the Renewed Motion to Dismiss the Petition (“Motion”) 

filed by respondent Federal Election Commission (“FEC”). (Doc. # 11.) The FEC 

imposed a $6,050 civil money penalty against the Committee and Robinson (as 

Committee treasurer) for filing a post-election campaign finance report 81 days late. 

Because the FEC failed properly to consider whether the Committee used its “best 

efforts” to comply with the filing deadline, the Motion should be denied. 

 Moreover, because the FEC failed to explain its reasoning adequately and 

failed to offer legally sufficient reasons for its decision, the case should be vacated 

and remanded to the FEC for further proceedings, as was ordered by this Court in 

Lovely v. Federal Election Commission, 307 F. Supp. 2d 294, 301 (D. Mass. 2004).1

 

1

 Instead of filing a motion to dismiss on an undisputed administrative record, the FEC should 

have filed a motion for summary judgment. “Cross-motions for summary judgment are the 

standard method for presenting a case to a district court for decision on the record compiled by 

the administrative tribunal that the court is reviewing.” Cox for U.S. Senate Committee v. 

Federal Election Commission, No. 03-3715, 2004 WL 783435, *1 (N.D. Il. Jan. 22, 2004). 

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I. BACKGROUND 

A. Factual Background 

 The administrative record contains evidence of the following undisputed 

facts.2 

 In 2009, Robinson unsuccessfully campaigned for the Republican nomination 

for the U.S. Senate in the Massachusetts Republican primary special election to fill 

the seat held by the late Sen. Edward M. Kennedy. (Pet. ¶ 1.) Robinson lost the 

December 8, 2009 Republican primary to the eventual general election winner – 

Sen. Scott Brown. (Id.) Robinson self-funded his campaign entirely with personal 

funds. (Pet. ¶ 14.) Robinson is the treasurer of the Committee. (Pet. ¶ 2.) 

The Committee’s 2009 Year-End Report of Receipts and Disbursements 

(“Report”), covering campaign finance activity from November 19, 2009 through 

December 31, 2009, was required to be filed by January 31, 2010. (Pet. ¶ 6.) 

Robinson mailed the Report to the Secretary of the Senate on April 15, 2010, the 

same day that he filed his 2009 personal tax return.

3 (Pet. ¶¶ 7, 14.) 

The Report was received by the Secretary of the Senate (and deemed filed) on 

April 22, 2010. (Pet. ¶ 7.) Thus, the Report was filed 81 days late. (Id.) On July 22, 

2010, as a result of the late filing, the FEC made a final determination imposing a 

 

2

 The relevant administrative record is attached to the Motion as Exhibit A (“Ex. A”), with page 

numbers appearing in the lower right-hand corner of each page. The FEC’s final determination 

is contained in Exhibit C to the Motion (“Ex. C”). 

3

 Unlike House committees, Senate committees do not electronically file their FEC reports 

directly with the FEC. Rather, they must manually file the reports with the Secretary of the 

Senate, who then forwards the reports to the FEC. See 2 U.S.C. § 432(g)(1) and (2). Within 48 

hours after receipt, the FEC makes the reports publicly available on the internet at www.fec.gov. 

See 2 U.S.C. § 438(a)(4) and § 434(a)(11). 

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civil money penalty against the Committee and Robinson, jointly and severally, in 

the amount of $6,050. (Pet. ¶ 12; Ex. C at 1.) 

As described in several letters sent to the FEC, see, e.g., Ex. A at 6, the 

Report was filed 81 days late for two reasons. First, because Robinson’s campaign 

was funded entirely by personal funds, he could not accurately complete the Report 

until he had tallied up all of the personal funds expended (exceeding $500,000) – 

which in turn could not be accurately accomplished until Robinson completed and 

filed his 2009 tax return (which occurred on April 15, 2010). (Pet. ¶ 14.) 

Second, Robinson could not accurately complete the Report until he filed his 

2009 taxes because the FEC had sent him several requests for additional 

information and various notices regarding the Report and other campaign finance 

reports due in 2009 and 2010 regarding the special senate election. (Pet. ¶ 15; Ex. 

A at 44-51.) In light of these requests for additional information, Robinson could 

not in good conscience file the Report knowing that it likely would contain 

incomplete and inaccurate information as a result of corrections required to be 

made to earlier reports.4 (Pet. ¶ 16.) Robinson felt compelled to wait until he had 

all of the relevant and correct financial data available, which occurred only when he 

completed and filed his 2009 taxes on April 15, 2010. (Id.) Because the Committee 

mailed the Report the same day that Robinson mailed his 2009 taxes, the 

Committee and Robinson qualified to receive the benefit of the “best efforts” 

 

4

 For example, the cash on hand at the end of the reporting period for an earlier report becomes 

the beginning cash on hand for the subsequent report, and thereby impacts the accuracy of the 

subsequent report. 

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provision found in 2 U.S.C. § 432(i) and 11 C.F.R. § 111.35(b)(3)(ii) (24-hour 

window). (Pet. ¶17.) 

B. Procedural Background 

On March 25, 2010, a six-person panel at the FEC voted unanimously to find 

reason to believe (“RTB”) that a violation of the reporting requirements found in 2 

U.S.C. § 434(a) had occurred, and to make a preliminary determination that a civil 

money penalty of $6,050 would be assessed. (Pet. ¶ 8; Ex. A at 12.) This penalty 

was based on the number of days the Report was late (81) and the number of prior 

violations (0). (Id.) On April 16, 2010, the Committee timely submitted a letter 

challenging the RTB finding. (Pet. ¶ 9; Ex. A at 6.) 

On June 4, 2010, the FEC’s Office of Administrative Review submitted its 

reviewing officer’s recommendation to the FEC, a copy of which was sent to the 

Committee on June 8, 2010. (Pet. ¶ 10; Ex. A at 1.) The recommendation 

summarized the facts at issue, petitioners’ submission, and the regulations, and 

then stated simplistically that because Robinson “had access to both his personal 

records and the Committee’s records [he] could have calculated the total amount of 

loans he contributed to the campaign at any time.” (Ex. A at 4.) As a result, the 

reviewing officer recommended that a fine of $6,050 be imposed for the 81 days the 

filing was late. (Id. at 5.) On June 18, 2010, the Committee submitted a letter 

objecting to the recommendation. (Pet. ¶ 11; Motion at Ex. B.) 

The FEC voted unanimously on July 22, 2010, to make a final determination 

that the Committee and Robinson had violated 2 U.S.C. § 434(a), and assessed a 

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civil money penalty of $6,050. (Pet. ¶ 12; Ex. C.) A certification of this vote appears 

in the administrative record by reference (Ex. C at 1 (“On July 22, 2010, the 

Commission adopted the Reviewing Officer’s recommendation”)), but the 

administrative record does not contain an opinion or other statements of reasons by 

the FEC. (Id.) There was no oral hearing. 

On August 9, 2010, this action was timely filed to challenge the penalty 

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 its first motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. # 

5), but failed to confer with opposing counsel prior to filing as required by L.R. 

7.1(A)(2). As a result, this Court denied the FEC’s motion without prejudice on May 

13, 2011. After conferring with opposing counsel, the FEC re-filed its Motion on 

May 25, 2011. (Doc. # 12.) 

II. STANDARD OF REVIEW 

Section 437g(a)(4)(C)(iii) of the Federal Election Campaign Act (2 U.S.C.) 

states: “Any person against whom an adverse determination is made under this 

subparagraph may obtain a review of such determination in the district court of the 

United States for the district in which the person resides, or transacts business, by 

filing in such court . . . a written petition requesting that the determination be 

modified or set aside.” 

The parties agree that the correct judicial review standard is governed by the 

Administrative Procedure Act, 5 U.S.C. § 706(2)(A), under which the Court must set 

aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise 

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not in accordance with law.” Id. Although “judicial review under the arbitrary and 

capricious standard is highly deferential,” Western Sea Fishing Co., Inc. v. Locke, 

722 F. Supp. 2d 126, 136 (D. Mass. 2010), the agency’s decision will be overturned if 

“the agency lacks a rational basis for making the determination or if the decision 

was not based on consideration of the relevant factors.” Centennial Puerto Rico 

License Corp. v. Telecomm. Reg. Bd. of Puerto Rico, 634 F.3d 17, 37 (1st Cir. 2011) 

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

Furthermore, the Court “must assure itself that the agency examine[d] the 

relevant data and articulate[d] a satisfactory explanation for its action, including a 

rational connection between the facts found and the choice made.” Lovely, 307 F. 

Supp. 2d at 298 (quotation marks and citations omitted). “In other words, we must 

know what a decision means before the duty becomes ours to say whether it is right 

or wrong.” Harrington v. Chao, 280 F.3d 50, 60 (1st Cir. 2002) (citations omitted). 

III. ARGUMENT 

A. FEC Failed Adequately to Explain its “Best Efforts” Decision 

The sole argument of the Committee and Robinson in this case is that 

because they used their “best efforts” to file the Report in a timely manner, and in 

fact did file the Report within 24 hours after the end of the circumstances causing 

the late filing (i.e., Robinson’s financial computations and accounting of the total 

loans he made to the Committee in conjunction with the filing of his 2009 personal 

tax return on April 15, 2010), the FEC’s imposition of a penalty in this case was 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

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law. See 2 U.S.C. § 432(i) (“best efforts” statute) and 11 C.F.R. 111.35(b)(3) (“best 

efforts” regulations). 

“The best efforts statute . . . was described by its congressional sponsor as the 

‘anti-nit-picking amendment.” Lovely, 307 F. Supp. 2d at 299 (citations omitted). 

Yet “nit-picking” is precisely what the FEC has done here. The FEC fails to 

understand how the real world works, and that self-funding political candidates are 

unable to file accurate financial reports with the FEC until they have compiled, in 

final and accurate form, all of their financial transactions and accounting 

information – which normally occurs at tax time. This is particularly true in this 

case, where during early 2010 the FEC sent the Committee three requests for 

additional information regarding reports that the Committee filed in late 2009 

highlighting errors in those reports! It would have been irresponsible for the 

Committee to file the 2009 Year-End Report on time in January 2010 knowing that 

earlier reports required amendment and that the final accounting of Robinson’s 

loans to the Committee would not be completed until it was time for him to file his 

personal tax return in April 2010. 

The FEC did not make any determination on its own or provide any reasons 

for its determination. Instead, it simply adopted the reviewing officer’s 

recommendation dated June 4, 2010. See Ex. C at 1 (“On July 22, 2010, the 

Commission adopted the Reviewing Officer’s recommendation and made a final 

determination that the Robinson Committee, LLC and you, in your official capacity 

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as Treasurer, violated 2 U.S.C. § 434(a) and assessed a civil money penalty of 

$6,050.”). 

But even the reviewing officer’s report was deficient in its analysis of the 

Committee’s “best efforts” defense. The reviewing officer summarily announced 

that the Committee “failed to prove that the Candidate’s need to prepare his taxes 

prevented them from filing the Year End Report on time.” (Ex. A at 4.) This is a far 

cry from the “reasoned basis” normally required to uphold agency action. See 

Lovely, 307 F. Supp. 2d at 298 (“[A]lthough the court is to uphold a decision of less 

than ideal clarity if the agency’s path may reasonably be discerned, . . . it may not 

supply a reasoned basis for the agency’s action that the agency itself has not 

given.”) (citations and quotation marks omitted). 

The FEC also argues that because only one request for additional information 

was issued prior to the Report’s January 31, 2010 filing deadline, the Committee 

had “adequate time to complete both tasks.” (FEC Mem. at 12.) Such an argument 

is reflective of an agency that is completely out-of-touch with the operational and 

financial obstacles faced by a thinly-staffed (Robinson serves as his own Committee 

treasurer (Pet. ¶ 2) and files all of the Committee’s reports), grass-roots campaign, 

where non-professional staff members (let alone the candidate himself) do not have 

the luxury of dropping their full-time livelihoods in the middle of the worst 

recession since the Great Depression when the FEC suddenly announces two weeks 

prior to the filing deadline of a year-end report that errors must be corrected in an 

earlier report. As former FEC Commissioner Bradley Smith has written: “The 

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burdens of FEC enforcement are often felt by those who best exemplify American 

civic involvement . . . While large committees with abundant resources are usually 

able to cope with the FECA as a cost of doing business, campaigns reliant on 

volunteers often find compliance with the Act to be especially difficult.” Bradley A. 

Smith and Stephen M. Hoersting, A Toothless Anaconda: Innovation, Impotence and 

Overenforcement at the Federal Election Commission, Election Law Journal, Vol. 1, 

No. 2, at 147 (2002). 

 “In its final determination, the FEC did not made [sic] findings of fact, make 

a statement of reasons, incorporate the reviewing officer’s recommendation by 

reference, or issue any opinion at all.” Lovely, 307 F. Supp. 2d at 301. “In sum, the 

[FEC’s] reasoning was inadequate. . . . A remand will give the [FEC] an opportunity 

to better explain [its] position.” Rhode Island Hosp. v. Sebelius, 670 F. Supp. 2d 

148, 158 (D. R.I. 2009) (vacating and remanding to agency for further proceedings). 

For the same reasons, this Court should vacate and remand this case to the FEC for 

further proceedings to provide the FEC with an opportunity to better explain its 

decision to deny the Committee’s “best efforts” defense. 

CONCLUSION 

On this record, as in Lovely, the Court need not decide whether the FEC’s 

action was arbitrary or capricious (even though it was). It is enough that the FEC 

failed to explain its reasoning adequately and failed to offer legally sufficient 

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reasons for its decision. As a result, this Court should vacate and remand the case 

for further consideration by the FEC of the Committee’s “best efforts” defense.5 

 Respectfully submitted, 

ROBINSON COMMITTEE, LLC and 

JACK E. ROBINSON, 

By their attorneys, 

 /s/ Jack E. Robinson 

 Jack E. Robinson (BBO #559683) 

 ROBINSON LAW OFFICES 

 300 First Stamford Place, Suite 201 

 Stamford, CT 06902 

 (203) 425-4500 

 (203) 425-4555 (fax) 

 Robinsonesq@aol.com 

Dated: June 8, 2011 

CERTIFICATE OF SERVICE 

 The undersigned hereby certifies 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 the date hereof. 

 /s/ Jack E. Robinson 

 Jack E. Robinson 

 

5

 The FEC also argues that service of process was insufficient. (FEC Mem. at 16, n.3.) The 

normal government service requirements contained in Fed. R. Civ. P. 4(i) (i.e., serving the U.S. 

Attorney in Massachusetts and the Attorney General in Washington) are excused in this case by 

operation of 28 U.S.C. § 1391(e) (last par.), which allows service on the FEC solely by certified 

mail because the FEC is “beyond the territorial limits of the district in which the action is 

brought.” Id. 

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