UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FEDERAL ELECTION COM M ISSION ,

999 E Street, N .W .

W ashington, DC 20463

Plaintiff.

FII FD BY - D

.C.

FEB 1 3 2015

STEVEN M LARIMO9E .

CLERK u s Dlsl cl

s.n. og fl.k. - w.Rn.

Civil Adion N o. 15-81732-dv-M arra

EDW ARD J. LYNCH. Sr.,

10269 Trianon Pl.

W ellington, FL 33449,

LYNCH FOR CONGM SS,

P.O. Box 210544,

Royal Palm Beach, FL 33421,

and

EDW ARD J. LYNCH, Sr.,

ln his official capacity as Treasurer of

Lynch for Congress,

c/o Lynch for Congress

P.O. Box 210544,

Royal Palm Beach, FL 33421,

A N SW ER

Defendants.

M OTION 1 TO DISM ISS BASED O N THE EXPIM TIO N OF TH E STATUTE O F

LIM ITATIONS

ln the Office of General Counsel's (OGC) own Conciliation Agreement,

statem ents and com plaint, there are no specific dates of any particular alleged

violations other than çlFrom 2008 through 20109' despite m e asking for sam e. The

reason that there are no specific dates is that any and al1 alleged violations

occurred outside of the five (5) year statute of limitations. By the OGC'S own

admission, no violations occurred after 2010 which is five (5) years and nine (9)

m onths since 1 was even a candidate for office. The com plaint lists item s that

were never previously discussed and outside the stamte of lim itations.

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 1 of 18
2. For the pup oses of the discussion of the statute of lim itations the following

factual dates need to be established. I was a candidate for US Congress in

Novem ber of 2008 and once again in a special election having an election date of

April 13, 2010. Therefore, again, over five years and nine months has elapsed

since the time that 1 was a candidate.

The OGC'S conciliation agreement calls for paying lécivil penalties'' for personal

use violations and reporting violations çistill remaininy within the statute of

lim itations'', This is patently false as there is nothing listlll rem aining within the

statute of limitations'' as it has been over five (5) years and nine (9) months since

l was even a candidate. Once again, the OGC references alleged violations ûtfrom

2008 through 201095 with no specific dates for specific alleqed violations although

previous conciliation agreem ents reference alleged violatlons from the earliest

part of the timeline.

I w ill address the statute of limitations based on the FEC'S own dtGuidebook for

Complainants and Respondents on the FEC Enforcement Process'' (May 2012

edition) (GTEC Guidebook''), federal law, previous FEC Commission rulings and

case law.

The FEC Guidebook states on Page six (6), Gûcomplaints should be filed as soon

as possible after the alleged violation becomes known to the complainant in order

to preserve evidence and the Com mission's ability to seek civil penalties in

federal district court within the five-year statutes of limitations period (measured

from the time of the violation) provided by 28 U.S.C. j 2462 (civil) and 2 U.S.C.

j (criminall.'' Based on the FEC'S own guidebook, the Commission only has the

ability to seek civil penalties within the five-year statute of limitations period

measlzred from the time of the violation. This citing of federal code and

interpretation of federal 1aw indicates that, due to the am otmt of time being over

the five year statute of limitations, it is unlawful for the FEC to seek civil penalty.

6. Additionally, the FEC Guidebook, on page eighteen (18) states, ûsBecause the

Commissions' ability to seek civil penalties in federal district court is subject to a

five-year statute of limitation, see 28 U.S.C. j 2462, OGC may request at any

stage in the enforcem ent process that the respondent agree to toll the statue of

lim itations, including during the pendency of the pre-probable cause conciliation

process.'' Any alleged violations are well outside of the five-year statute of

lim itations.

7. U.S.C. j 2462, Time for commencing proceedings clearly states, in part, ttExcept

as otherwise provided by Act of Congress, an action, suit or proceeding for the

enforcement of any civil fine, penalty, or forfeittlre, pectmiary or otherwise, shall

not be entertained unless com m enced within five years from the date when the

claim first accrued. . .''. Due to the fact that it is more than five (5) years and nine

(9) months since l was even a candidate, it would be significantly longer than that

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 2 of 18
since any of the alleged violations occurred and the statute of limitations has long

been exceeded.

8. In FEC v. National Republican Senatorial Committee (93-1612) the court ruled,

ûlln applying U.S.C. j 2462, the court determined that the statue of limitations

started running from the date of the alleged violations-the period between

N ovember 1985 and N ovem ber 1986. Since the time between the dates of the

violations and the date the FEC filed this case with the court exceeded the 5-

year statute of Iim itations, the FEC could not pursue the im position of civil

penalties-'' (Emphasis added) Since the court established that the statute of

lim itations begins nmning tûfrom the date of the alleged violations'', it is clear that

any alleged violations would have occurred outside of the five (5) year statute of

lim itations and pttrsuing the imposition of civil penalties would be contrary to

federal law. The OGC'S insistence that failure to sign a patently false conciliation

agreement is meant as an intim idation factor and a blatant threat that the OGC,

based on their own FEC Guidebook and interpretation of federal law , knows that

it is bad faith and unlawful to, as the OGC states, lsinstitute a civil suit in United

States District Court and seek payment of a civil penalty'' (letter dated October

14, 2015).

9. The court ruled that it is contrary to U.S.C. j 2462, to seek civil penalties after the

statute of lim itations has run. In an October 14, 2015 letter from the OGC, the

OGC states, kûplease make the check for the civil penalty payable to the Federal

Elections Commission.'' (Emphasis added) Therefore, since the court ruled in

FEC v. NRSC (93-1612), tûthe FEC could not pursue the imposition of civil

penalties.'' Clearly, the OGC is wrongly seeking a ûtcivil penalty'' as part of their

conciliation agreement.

10. ln FEC v. National Right To Work Committee (90-0571), the court ruled, tlln

general, federal govenunent agencies must initiate proceeding to assess civil

penalties, tsnes and forfeitures within 5 years from ûlthe date when the claim first

accrued.'' 28 U.S.C. j 2462. Again, in FEC v. National Republican Senate

Committee, the court nzled that this statue of lim itations applied to the FEC and

that the statue of lim itations began to run when the alleged offense was

com mitted. The FEC is barred from filing a suit as the date of any alleged

violation is well outside of the five (5) year statute of limitations.

1 1. In the M atter of PBS& J Com oration, et al, M UR 5903, the Com mission ruled,

çlslore im portantly, by the tim e this m atter was first brought before us in

Septem ber 2009, the five-year statue of lim itations had already expired on a11

violations. ..-l-herefore, because we could not conclude that the five-year stat'ue of

lim itations could be tolled under the facts in this m atter, we voted against

pursuing this m atter further.''

12. The Ninth Circuit Court of Appeals held that FEC enforcement actions are subject

to the default five-year statute of limitations in 28 U.S.C. j 2462. According to

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 3 of 18
the Williams court, the lim itations period began nznning at the tim e the activities

occurred and, as a result, the FEC'S com plaint was time-barred. A1l of the

occurrences of the alleged activities that the FEC claim s are well outside the five

(5) year statute of limitations. NONE of the occurrences of the alleged activities

are within the five (5) year statute of limitations.

13. In The M atter of the Paul Broun Comm ittee, M ur 6556, although the Comm ission

did find that there were reporting violations, they ruled, in part, çkthese alleged

reporting violations occurred m ore than five years ago and thus are outside the

five-year statue of lim itations period. See 28 U.S.C. j 2462; see also, FEC v.

Nat '1 Repub. Senatorial Comm., 877 F. Supp. 15, 19 (D.D.C 1995). Because the

original activity fell outside the five-year statute of lim itations within

approximately two m onths of the Complaint being filed, the Conunittee has

substantially corrected the record, and there are no other violations at issue in this

matter, the Comm ission dism isses the allegations in M UR 6556 that the

Committee violated 2 U.S.C. j 434*) and 1 1 C.F.R. j 104.3(d)(4) by failing to

accurately report loans and disbursements and closes the file. See Heckler v.

Chaney, 470 U.S. 821 (1985).5'

14. It was well within the rights of and incumbent upon the FEC Commission (See

Heckler v. Chaney) based on well-documented precedents and clear and concise

federal law to dismiss the allegations. The FEC'S overreach in filing suit is a clear

case of bad faith and prejudice.

15. W HEREFORE, based on U.S.C. j 2462, the court ruling in FEC v. National

Republican Senatorial Committee (93-1612), the court ruling in FEC v. National

Right To Work Committee (90-0571), PBS&J Comoration, Paul Broun

Comm ittee, the ruling of The N inth Circuit Court of Appeals, and the FEC

Guidebook; since there is no additional tolling of the statute of lim itations and it

is, at a minimum, five (5) years and nine (9) months since I was even a candidate

for office, Defendant prays that this matter should be dismissed with prejudice.

M OTION 2 TO DISM ISS BASED ON BREACH OF 52 U. S. C. j30109(a)(4)(A)

REQUIRING THE COM M ISSION TO SEEK TO CORRECT ANY VIOLATIONS

THROUGH INFORM AL M ETH ODS OF CO NFERENC IE CONCILIATION AND

PERSUASION FOR AT LEAST 30 DAYS AND NO M ORE THAN 90 DAYS

16. On October 14, 2015, a letter was sent by the OGC which attempted to allow for

conciliation. The letter clearly allowed for, ççno m ore than 90 days''.

Additionally, 52 U. S. C. j30109(a)(4)(A) requires The Commission to seek to

correct any violations through informal m ethods of conference, conciliation and

persuasion for at least 30 days and no m ore than 90 days and the FEC

lûGuidebook for Com plainants and Respondents on the FEC Enforcement

Process'' allows for 30-90 days for Conciliation. 1 was not provided the

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 4 of 18
particulars of the alleged violations tmtil Decem ber l 5, 2015, despite my several

requests for sam e.

17. Dlzring the week of October 26, 2015 l had a conversation with OGC, Ana PenaW allace going over what we could do to conciliate this m atter and put this m atter

to rest once and for a1l despite not having the work papers depicting the extent of

the claims.

18. On Novem ber 6, 2015, l received a follow up em ail from Ana Pena-W allace

regarding our conversation the previous week.

19. On Novem ber 6, 2015, I responded asking for the OGC work papers as l

disagreed with the claim s that the OGC was m aking and 1 wanted a chance to

refute their claims of alleged violations in order to elim inate or m itigate any civil

penalty.

20. On Novem ber 9, 2015, Ana Pena-W allace responded via email that she wanted to

schedule another phone call.

2 1. On Novem ber 9, 2015, I responded via em ail that l felt that the best course of

action would be for the OGC to send m e their work papers so that our phone

conversation would be m ore fruitful. 1 once again, requested the backup

docum entation substantiating their claim so that I m ay refute their claim s as

necessary and work towards a resolution elim inating or m itigating any civil

penalty fine.

22. On N ovember 10, 2015, Ana Pena-W allace stated, ûlW e are unable to provide you

with any attorney work product. . .'' and 1 was told to çûreview bank statements''. It

makes it impossible to refute any claim when I do not know the extent of an

alleged claim and l was not able to adequately address any sort of conciliation

agreem ent although, in good faith, l attempted.

23. The only way that I received the numbers that I sought was when 1 was forwarded

a draft of the civil suit, despite m y repeated requests for snme. Reviewing the

complaint allowed m e the first opportunity to even know what the OGC was

alleging.

24. l was also told, several times that the period for entering into a conciliation

agreement would end on November 15, 2015, to which l vehem ently disagreed

due to the aforem entioned letter and not being provided with the docum entation

that l requested providing the extent of the alleged violations claimed by the

OG C .

25. On December 14, 2015 in an em ail to M r. Blumberg, l emphasized my

willingness to enter into a conciliation agreem ent to put this m atter finally to rest

and that l wanted to mitigate any financial burden which is why I was requesting

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 5 of 18
the work papers as 1 disagreed with the assertions of the OGC regarding the

alleged violations..

26. On Decem ber l 5, 2015 I received a draft of the civil com plaint which m irrors this

civil suit. lt was at this point that, for the first tim e, I received what the OGC was

claim ing was in violation and it was significantly less than what they originally

claimed. I was not even given a chance to review the inform ation adequately

disputing the OGC'S claim that this was a personal use violation as the item s in

question were not personal.

27. Based on 52 U. S. C. j30109(a)(4)(A) The Commission is required to seek to

corred the violations through informal methods of conference, conciliation, and

persuasion for at least 30 days and no more than 90 days.

28. On Decem ber 16, 2015, l sent an em ail to OGC, M r. Deeley, in an attempt to

enter into a conciliation agreem ent negotiation utilizing the percentages of alleged

penalties sent to me by the OGC previously despite disagreeing with the am otmt

the OGC was claiming in order to m itigate this m atter and finally put it to rest.

29. On Decem ber 17, 2015 OGC, Erin Chlopak sent m e an em ail declining to accept

the offer that 1 sent and l was told that the am ount that 1 derived, utilizing the

FEC'S own mathem atical form ulas, was tûnot nearly com mensurate with the

extent of the violations at issue in this matter''. The OGC was using the extent of

civil violations as a m easure, NOT the am ount of the alleged violations, contrary

to their ordinary and previous practice. She indicated that the 10% of the

potential penalties was not enough however, the 10% of civil penalties sought is

nearly 96% of the alleged violations, which is significantly higher than any

percentages that were offered or used as a basis previously.

30. On December 17, 2015 1 responded that l do not even know what they consider

''com mensurate with the extent of the violations at issue in this matterd'.

According to the FEC'S own suit, that I received the day before, the ''extent of the

violations at issue in this m atter'' and still remaining within the statute of

lim itations is $1,622.49. This was an amount and for item s that l never had

infonnation on.

31. Given the delay in getting the inform ation that I requested alm ost 6 weeks prior to

receiving the actual alleged violations in the claim and the OGC not accepting the

EX A CT percentage offered of the higher percentages in the governm ent's

conciliation agreement, it is a clear breach of the covenant of good faith and, in

fact, bad faith to have not allowed me the opportunity for the full amotmt of time

allotted by the government's own handbook and m ore specifcally the October 14,

2015 letter sent by the OGC to me a11 governed by 52 U. S. C.

j30109(a)(4)(A). Especially given the fact that the amount in question is quite

m inim al.

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 6 of 18
32. Additionally, the OGC would not discuss anything further unless l agreed to sign

a tolling agreem ent yet there was no language in the tolling agreement so as not to

resuscitate claim s for which the limitations period has already passed despite my

request for same. Based on the govem ment's blatantly false claims of what was

the actual amount of alleged violations still rem aining within the statute of

limitations and the ''requirem ent'' to provide an inadequate tolling statem ent or

face civil suit violating the governm ent's own timeline, there is clear and

convincing evidence that the government is engaged in a blatant breach of its duty

of good faith and fair dealing despite the government's requirem ent to do so as

per 52 U. S. C. j30109(a)(4)(A). Contrarily, I have acted in good faith, without

the assistance of counsel, as the continued costs of tens of thousands of dollars

made it prohibitive to continue to engage outside counsel, in order to resolve this

issue and enter into a conciliation agreem ent based on the alleged item s still

remaining within the statute of lim itations and utilizing the OGC'S very own

percentages to do so, despite disagreeing with the OGC'S assertions of a violation.

33. I continued to endeavor to avoid a civil suit, as l have this entire tim e, and l was

still hopeful that we were able to resolve this issue in a tim ely manner. l can not

imagine that a reasonable conciliation ajreement could not be agreed to quickly

based on the $ 1,622.49 of alleged violatlons still remaining within the statute of

limitations which I would disagree with. 1 would not have engaged in this

strenuous exercise if 1 was not interested in seriously attem pting to conciliate this

matter and to infer such is wrong.

34. According to 52 U. S. C. j30109(a)(4)(A), The Commission is required to seek

to correct the violations through inform al m ethods of conference, conciliation,

and persuasion for at least 30 days and no m ore than 90 days. The OGC, by

refusing to provide any work papers until 2 days prior to the filing of a suit,

despite my repeated requests for same, violated 52 U. S. C. j30109(a)(4)(A) by

only allowing 2 days, violating their obligation to allow at least 30 days.

Additionally, 1 responded, in good faith, im mediately upon receipt of

correspondence from the OGC in an attempt to enter into a conciliation agreement

negotiation and resolve this m atter.

35. The OGC knowingly and willfully lied and m isrepresented the actual amount of

alleged violations in order to achieve a higher settlement offer in the conciliation

agreement. Additionally, the OGC refused to provide m e with any work papers

substantiating their claim until 2 days prior to initiating this claim . W hen their bad

faith and misdeeds were discovered, they imm ediately tried to strong m'm m e into

a settlem ent which is higher than the am ount sought in this complaint and, when 1

would not acquiesce, they imm ediately tsled suit despite their legal obligation to

correct the alleged violations through informal methods. They would not even

attempt to enter into negotiations based on the actual alleged violations as is

required under 52 U. S. C. j30109(a)(4)(A).

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 7 of 18
36. W HEREFORE, based on direct violation of 52 U. S. C. j30109(a)(4)(A),

Defendant prays that this matter should be dismissed with prejudice and that the

Federal Elections Com mission and Office of General Counsel be held

accountable.

M O TIO N 3 TO DISM ISS BASED ON BREACH OF FEC GUIDELINES

37. On October 14, 2015, a letter was sent by the OGC which attempted to allow for

conciliation. The letter clearly allowed for, tlno m ore than 90 days''.

Additionally, the FEC CtGuidebook for Com plainants and Respondents on the

FEC Enforcement Process'' allows for 30-90 days for Conciliation.

38. During the week of October 26, 2015 1 had a conversation with OGC, Ana PenaW allace going over what we could do to conciliate this matter and put this m atter

to rest once and for all.

39. On N ovember 6, 2015, I received a follow up email from Ana Pena-W allace

regarding our conversation the previous week.

40. On November 6, 2015, 1 responded asking for the OGC work papers as 1

disagreed with the claim s that the OGC was making.

41. On November 9, 2015, Ana Pena-W allace responded that she wanted to schedule

another phone call.

42. On Novem ber 9, 2015, l responded that I felt that the best course of action would

be for the OGC to send m e their work papers so that our phone conversation

would be more fruitful. I once again, requested the backup documentation

substantiating their claim .

43. On Novem ber 10, 2015, Ana Pena-W allace stated, ltW e are unable to provide you

with any attorney work product. . .'' and I was told to review bank statem ents.

44. The only way that l received the num bers that l sought was when I was forwarded

a draft of the civil suit, despite m y repeated requests for same.

45. l was also told, several tim es that the period for entering into a conciliation

agreem ent would end on Novem ber 15, 2015, to which l vehem ently disagreed

due to the aforementioned letter and not being provided with the docum entation

that l requested. The time to enter into a conciliation agreement, which l was

m ore than willing to do, did not end and it should not have ended until January

12, 2016.

46. Based on 52 U. S. C. j30109(a)(4)(A) The Commission is required to seek to

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 8 of 18
correct the violations through informal m ethods of conference, conciliation, and

persuasion for at least 30 days and no more than 90 days. Therefore, it is my right

to have m ore than 2 days to negotiate a conciliation agreem ent without having to

waive my civil rights and enter into a tolling agreem ent. The governm ent has

frustrated my ability to m ake an adequate counter offer due to refusing to provide

me with the information that 1 requested until December 15, 2015 and is acting in

bad faith demanding that l sign another tolling agreem ent by 9:00 AM by the

next day or face a civil suit when the government's own letter allowed until

January 12, 2016 (90 days), not the two (2) days that l was provided.

47. On December 14, 2015 in an email to M r. Blumberg, I emphasized my

w illingness to enter into a conciliation agreement and that l wanted to mitigate

any tinancial burden which is why I was requesting the work papers as l disagreed

with the assertions of the OGC.

48. On December 15, 2015 I received a draft of the civil complaint which minors this

civil suit. It was at this point that, for the first tim e, I received what the OGC was

claim ing w as in violation and it was signifieantly less than what they originally

claim ed. I was not even given a chance to review the information adequately

disputing the OGC'S elaim that this was a personal use violation.

49. l asked several tim es for the ''work papers'' which I was told, in the N ovember 10,

2015 email, that the OGC would not be willing to provide. Finally, I was

provided the docum entation that l sought on Decem ber 15, for the first time, and

given less than 2 days to conciliate this matter, utilizing the actual num bers, when

the October 14, 2015 letter allows for ''no m ore than 90 days'' and the FEC

''Guidebook for Com plainants and Respondents on the FEC Enforcement

Process'' allows for 30-90 days for Conciliation. This is despite me making a

good faith effort and providing a counter to the OGC conciliation agreem ent the

very sam e day that 1 was provided the actual am ounts still remaining within the

statute of lim itations. Both the letter and the Guidebook would allow until

January 12, 2016 to enter into a conciliation agreem ent.

50. On Decem ber l6, 2015, 1 sent an email to OGC, M r. Deeley, in an attempt to

enter into a conciliation agreem ent utilizing the percentages of alleged penalties

sent to me by the OGC previously. 1 did this in good faith, as 1 disagreed with the

assertion of the OGC that the items in question were for personal use.

51. On Decem ber 17, 2015 OGC, Erin Chlopak sent m e an em ail declining to accept

the offer that I sent and l was told that the am ount that l derived, utilizing the

FEC'S own mathem atical formulas, was çtnot nearly com mensurate with the

extent of the violations at issue in this m atter''. The OGC was using the extent of

civil violations as a m easure, N OT the amount of the alleged violations, contra.ry

to their ordinary and previous practice. She indicated that the 1 0% of the

potential penalties was not enough however, the 10% of civil penalties sought is

nearly 96% of the alleged violations, which is significantly higher than any

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 9 of 18
percentages that were offered or used as a basis previously.

52. On Decem ber l 7, 2015 l responded that 1 do not even know what they consider

''comm enstlrate with the extent of the violations at issue in this matterf'.

According to the FEC'S own suit, that 1 received the day before, the ''extent of the

violations at issue in this matter'' and still rem aining within the statute of

lim itations is $1,622.49. Aher al1 these years and the tens of thousands of dollars

in paid atlorney fees and undue stress, the extent of the alleged violations at issue

in this m atter comes down to $1,622.49. This is an amount based on alleged

violations that l was given, for the first tim e on Decem ber 15, 2015. I was given 2

days to review the infonuation provided in this suit, contrary to the legal

obligation stated in 52 U. S. C. j30109(a)(4)(A). l offered the EXACT snme

percentage that the OGC sought which is higher than every other conciliation

agreement that l have researched. In good faith, I even offered if 100% of the

$1,622.49 in alleged violations still remaining within the statute of lim itations be

m ore appropriate. I also requested for the OGC to provide m e with a counter

offer. I based my counter offer on the numbers provided and utilized by the

OGC.

53. Additionally, the OGC would not discuss anything further unless l signed a

tolling agreement yet there was no language in the tolling agreem ent so as not to

resuscitate claim s for which the limitations period has already passed despite my

request. Based on the governm ent's blatantly false claim s of what is the actual

amount of alleged violations still rem aining within the statute of lim itations and

the ''requirem ent'' to provide an inadequate tolling statem ent or face civil suit

violating the government's own tim eline, there is clear and convincing evidence

that the govelmm ent is engaged in a blatant breach of its duty of good faith and

fair dealing. Contrarily, I have acted in good faith, without the assistance of

counsel, as the continued costs of tens of thousands of dollars m ade it prohibitive

to continue to engage outside counsel, in order to resolve this issue and enter into

a conciliation agreem ent based on the actual item s still rem aining within the

statute of limitations and utilizing the OGC'S very own percentages to do so.

54. According to 52 U. S. C. j30109(a)(4)(A), The Commission is required to seek

to correct the violations through informal methods of conference, conciliation,

and persuasion for at least 30 days and no m ore than 90 days as is stated in the

FEC'S klGuidebook for Complainants and Respondents on the FEC Enforcem ent

Procesf'. The OGC, by refusing to provide any work papers until 2 days prior to

the filing of a suit, despite m y repeated requests for sam e, violated 52 U . S. C.

j30109(a)(4)(A) by only allowing 2 days, violating their obligation to allow at

least 30 days. Additionally, I responded, in good faith, im mediately upon receipt

of correspondence from the OGC in an attempt to enter into a conciliation

agreem ent so as to finally resolve this costly m atter.

55. The OGC knowingly and willfully lied and m isrepresented the actual amount of

alleged violations in order to achieve a higher settlement offer in the conciliation

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 10 of 18
agreement. W hen their m isdeeds were discovered, they im mediately tried to

strong arm m e into a settlement which is higher than the am ount sought in this

suit and, when l would not acquiesce, they imm ediately filed suit. They would

not even attempt to enter into negotiations based on the actual alleged violations

as is required under 52 U. S. C. j30109(a)(4)(A). l had no knowledge of what

the actual items that the OGC was claim ing as personal use violations were until

Decem ber 15, 2015 despite over 6 weeks of asking for sam e and, in bad faith,

they filed suit 2 days after providing the requested docum entation.

56. W HEREFORE, based on the direct violation of the standards set forth in the

FEC'S klGuidebook for Com plainants and Respondents on the FEC Enforcement

Process''; Defendant prays that this matter should be dismissed with prejudice and

that the Federal Elections Comm ission and Office of General Counsel be held

accountable.

M OTION 4 TO DISM ISS BASED ON BAD FAITH

57. On October 14, 2015, a letter was sent by the OGC which attem pted to allow for

conciliation. The letter clearly allowed for, tdno more than 90 days''.

Additionally, the FEC liGuidebook for Complainants and Respondents on the

FEC Enforcem ent Process'' allows for 30-90 days for Conciliation.

58. During the week of October 26, 2015 I had a conversation with OGC, Ana PenaW allace going over what we could do to' conciliate this matter and put this matter

to rest once and for all.

59. On N ovember 6, 2015, I received a follow up email from Ana Pena-W allace

regarding our conversation the previous week.

60. On N ovember 6, 2015, l responded asking for the OGC work papers as l

disagreed with the claim s that the OGC was m aking.

61 . On Novem ber 9, 2015, Ana Pena-W allace responded that she wanted to schedule

another phone call.

62. On November 9, 2015, 1 responded that l felt that the best course of action would

be for the OGC to send m e their work papers so that our phone conversation

would be more fruitful. l once again, requested the backup documenution

substantiating their claim .

63. On Novem ber 10, 2015, Ana Pena-W allace stated, tlW e are tmable to provide you

with any attorney work product. . .'' and l was told to review bank statem ents.

64. The only way that l received the numbers that l sought was when I was forwarded

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 11 of 18
a draft of the civil suit, despite m y repeated requests for same.

65. l was also told, several tim es that the period for entering into a conciliation

agreement would end on November 15, 2015, to which I vehem ently disagreed

due to the aforementioned letter and not being provided with the doctlm entation

that I requested. The time to enter into a conciliation agreem ent, which 1 was

m ore than willing to do, did not end and it should not have ended tmtil January

12, 2016.

66. Based on 52 U. S. C. j30109(a)(4)(A) The Commission is required to seek to

correct the violations through informal m ethods of conference, conciliation, and

persuasion for at least 30 days and no m ore than 90 days. Therefore, it is my right

to have m ore than 2 days to negotiate a conciliation agreem ent without having to

waive m y civil rights and enter into a tolling agreement. The governm ent has

frustrated m y ability to m ake an adequate counter offer due to refusing to provide

m e with the infonnation that 1 requested tmtil Decem ber 15, 2015 and is acting in

bad faith demanding that 1 sign another tolling agreem ent by 9:00 AM by the

next day or face a civil suit when the governm ent's own letter allowed until

January 12, 2016 (90 days), not the two (2) days that I was provided.

67. On December 14, 2015 in an email to M r. Blumberg, 1 emphasized my

willingness to enter into a conciliation agreem ent and that 1 wanted to m itigate

any tinancial burden which is why l was requesting the work papers as l disagreed

with the assertions of the OGC.

68. On Decem ber 15, 2015 I received a draft of the civil com plaint which m inors this

civil suit. lt was at this point that, for the first tim e, I received what the OGC was

claim ing was in violation and it w as significantly less than what they originally

claimed. l was not even given a chance to review the inform ation adequately

disputing the OGC'S claim that this was a personal use violation.

69. I asked several tim es for the ''work papers'' which l was told, in the N ovember 10,

2015 em ail, that the OGC would not be willing to provide. Finally, l was

provided the docum entation that 1 sought on Decem ber 15 and given less than 2

days to conciliate this matter, utilizing the actual numbers, when the October l4,

2015 letter allows for ''no more than 90 days'' and the FEC ''Guidebook for

Com plainants and Respondents on the FEC Enforcem ent Process'' allows for 30-

90 days for Conciliation. This is despite m e making a good faith effort and

providing a counter to the OGC conciliation agreement the very sam e day that 1

was provided the actual nm ounts still remaining within the statute of

limitations. Both the letter and the Guidebook would allow until January 12,

2016 to enter into a conciliation agreement.

70. On Decem ber 16, 2015, l sent an em ail to OGC, M r. Deeley, in an attempt to

enter into a conciliation agreem ent utilizing the percentages of alleged penalties

sent to m e by the OGC previously.

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 12 of 18
71. On D ecember 17, 2015 OGC, Erin Chlopak sent me an em ail declining to accept

the offer that I sent and I was told that the am ount that I derived, utilizing the

FEC'S own mathem atical form ulas, was lsnot nearly comm ensurate with the

extent of the violations at issue in this matter''. The OGC was using the extent of

civil violations as a measure, NOT the am otmt of the alleged violations, contrary

to their ordinary and previous practice. She indicated that the 10% of the

potential penalties was not enough however, the 10% of civil penalties sought is

nearly 96% of the alleged violations, which is signifk antly higher than any

percentages that were offered or used as a basis previously.

72. On December 17, 2015 l responded that I do not even know what they consider

''commensurate with the extent of the violations at issue in this m atter''.

According to the FEC'S own suit, that I received the day before, the ''extent of the

violations at issue in this m atter'' and still rem aining within the statute of

lim itations is $1,622.49. After al1 these years and the tens of thousands of dollars

in paid attorney fees and undue stress, the extent of the alleged violations at issue

in this m atter comes down to $1,622.49. I offered the EXACT sam e percentage

that the OGC sought which is higher than every other conciliation agreem ent that

l have researched. I even offered if 100% of the $1 ,622.49 in alleged violations

still remaining within the statute of lim itations be m ore appropriate. 1 also

requested for the OGC to provide me with a counter offer. 1 based m y counter

offer on the numbers provided and utilized by the OGC.

73. Given the delay in getting the information that l requested alm ost 6 weeks m ior to

receiving the actual work papers and the OGC not accepting the EX ACT

percentage offered of the higher percentages in the government's conciliation

agreement, it is a clear breach of the covenant of good faith and, in fact, bad faith

to have not allowed me the opportunity for the full amount of time allotted by the

governm ent's own handbook and more specifically the October 14, 2015 letter

sent by the OGC to m e as well as what is required in 52 U. S. C.

j30109(a)(4)(A). Especially given the fact that the amount in question is quite

m inimal.

74. Additionally, the OGC would not discuss anything further unless I signed a

tolling agreement yet there was no language in the tolling agreement so as not to

resuscitate claim s for which the lim itations period has already passed despite my

request. Based on the govenunent's blatantly false claim s of w hat is the actual

amount of alleged violations still remaining within the statute of limitations and

the ''requirem ent'' to provide an inadequate tolling statem ent or face civil suit

violating the government's own tim eline, there is clear and convincing evidence

that the government is engaged in a blatant breach of its duty of good faith and

fair dealing. Contrarily, l have acted in good faith, without the assistance of

counsel, as the continued costs of tens of thousands of dollars m ade it prohibitive

to continue to engage outside counsel, in order to resolve this issue and enter into

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 13 of 18
a conciliation agreem ent based on the actual item s still rem aining within the

statute of lim itations and utilizing the OGC'S very own percentages to do so.

75. I continued to endeavor to avoid a civil suit, as 1 have this entire time, and l was

still hopeful that we were able to resolve this issue in a tim ely m almer. I can not

im agine that a reasonable conciliation agreement could not be agreed to quickly

based on the $ 1,622.49 of alleged violations still remaininy within the statute of

lim itations, which I was willing to do despite disagreeing wlth the assertion of the

OGC that the items were for personal use. l would not have engaged in this

strenuous exercise if 1 was not interested in seriously attempting to conciliate this

m atter.

76. According to 52 U. S. C. j30109(a)(4)(A), The Commission is required to seek

to correct the violations through inform al methods of conference, conciliation,

and persuasion for at least 30 days and no m ore than 90 days. The OGC, by

refusing to provide any work papers until 2 days prior to the filing of a suit,

despite my repeated requests for same, violated 52 U. S. C. j30109(a)(4)(A) by

only allowing 2 days, violating their obligation to allow at least 30 days.

Additionally, I responded, in good faith, imm ediately upon receipt of

correspondence from the OGC in an attempt to enter into a conciliation agreement

and resolve this m atter.

77. According to the FEC EdGuidebook for Complainants and Respondents on the

FEC Enforcement Process'' @ ), page 20,''lf the Commission determines that

there is ttprobable cause to believe'' the 1aw has been violated, the Comm ission

must attempt to conciliate with the respondent for at least 30 days, but no m ore

than 90 days.'' The OGC would not provide m e with their work papers until 2

days prior to filing suit. In good faith, l made several attempts to enter into a

conciliation agreement im mediately upon receiving the amounts in question

despite disagreeing w ith the assertion of the OGC that the item s were allegedly

for personal use.

78. The govem ment has an implied duty to act in good faith and fair dealing. By

refusing to provide the actual amounts of alleged violations until 2 days prior to

issuing a civil suit, which I requested several tim es, and providing alleged

violations greatly exaggerated, the OGC acted in bad faith. By adding knowingly

and willful fallacious and defam atory language making claims to alleged

violations, which l deny, in the text of a public suit, the OGC is acting in bad

faith.

79. The OGC knowingly and willfully lied and m isrepresented the adual amount of

alleged violations in order to achieve a higher settlem ent offer in the conciliation

agreem ent. W hen their m isdeeds were discovered, they imm ediately tried to

strong arm me into a settlem ent which is higher than the amount sought in this

suit and, when 1 would not acquiesce, they immediately filed suit. They would

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 14 of 18
not even attempt to enter into negotiations based on the actual alleged violations

as is required under 52 U. S. C. j30109(a)(4)(A).

80. W HEREFORE, based on the government acting in bad faith; Defendant prays that

this matter should be dismissed with prejudice and that the Federal Elections

Com mission and Office of General Counsel be held accountable.

RESPON SE TO SUIT

DISAGREE States disputed items and item s outside the statute of lim itations as

fact. Had there actually been funds for personal use proven, this civil suit would

have been for those amounts. Given that this suit is for $1,622.49, this is a clear

attempt to prejudice the court by stipulating alleged items not in question and/or

not able to be addressed based on an expiration of the statute of limitations. This

is also an additional attempt to put into public record item s that have not been

factually proven and that I completely disagree with. l request M OTION TO

STRIKE any language referring to item s not in question.

DISAGREE l deny allegations in this suit

A G REE

DISAGREE Alleged violations are not proven and, as such, l disagree

A GR EE

AGREE, the exact date of the election was April 13, 2010 and it was the only

federal election in the entire country

A GR EE

8. DISAGREE ln September, 2009 Christine Botta was brought in to act in the

capacity of treasurer as she had experience with federal campaigns and our

cam paign, being the only federal election in the nation was getting very hectic. It

was Christine Botta who entered transactions until February, 2010. Her

experience included having been a staffer for several politicians.

9. AGREE

10. AGREE

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 15 of 18
1 1. AGREE

12. AGREE

13. AGREE

14. AGREE

15. A GREE

16. AGREE

17. DISAGREE

18. DISAGREE

19. DISAGREE, the adm ission was for the purposes of entering into a conciliation

settlem ent agreement as well as the am ount in question is derived from item s well

outside the statute of limitations. I request M OTION TO STRIKE

20. DISAGREE

21. DISAGREE

22. DISAGREE. The Act defines itpersonal use'' as the use of a contribution or

donation ûlto fulfill and comm itm ent, obligation, or expense of a person that

would exist irrespective of the candidate's election campaign or individual's

duties as a holder of Federal office.'' 52 U.S.C. j301 14(b)(2). The majority of

these item s were expenses due to having to travel for events for having been a

candidate for U S Congress, I would not have had cause to utilize those businesses

or had cause to attend the events requiring travel. Since the ending of our

cnm paign, I have gone to next to no political meetings in the area and none out of

the area.

23. DISAGREE The m atter was generated from records stolen from the campaign

and allegations m ade by a person who was with the campaign for only a short

period of time and N OT in the ordinary course of business.

24. AGREE

25. AGREE

26. AGREE

27. A G REE

28. AGREE

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 16 of 18
29. AGM E

30. AGREE

31. DISAGREE. 1 had agreed to enter into negotiations regarding a conciliation

agreem ent and l had requested, several times, that the FEC provide their records

as to what the allegations of misreporting were specitically. OGC, refused to

provide work papers tmtil 2 days prior to the filing of a civil suit. During those 2

days, l attempted to resolve the issue utilizing the FEC'S own guidelines and

previous conciliation agreement as a basis for calculation a civil penalty. The

OGC rejected said offers but offered no rationale behind a counter offer nor any

counter offer.

32. DISAGREE. There was no good faith effort on the part of the OGC to secure an

acceptable eonciliation agreem ent as they provided their alleged violations 2 days

prior to filing suit despite m y several request for their work papers.

33. DISAGREE The Comm ission failed to attempt to secure an acceptable

conciliation consistent with the terms set forth in 52 U. S. C. j30109(a)(4)(A),

the FEC'S Guidebook for Com plainants and Respondents on the FEC

Enforcem ent Process, which allows for 30-90 days for conciliation and an

October 14, 2015 letter allowing dtno m ore than 90 days'' to secure said

conciliation. 1 was given the w ork papers 2 days prior to the FEC filing suit after

requesting same, several tim es, and attempted to negotiate a conciliation

agreem ent utilizing the m athematical form ulas used by the OGC in previous

conciliation agreements. The OGC acted in bad faith filing the civil suit prior to

allowing for THEIR 0W N guidelines with regard to the amount of time allowed

for conciliation as well as in direct violation of 52 U. S. C. j30109(a)(4)(A). It

can not be considered that the OGC attempted to achieve a conciliation agreem ent

due to the fact that they refused to provide the work papers that I requested and 1

was unprepared to enter into any conciliation agreement conference without

know ledge of the full extent of alleged violations. l was not in a position to be

expected to reasonably enter into a conciliation agreement without all of the

pertinent information, which I requested and the OGC, again, refused to provide.

The OGC knowingly and willfully lied and misrepresented the actual am ount of

alleged violations in order to achieve a higher settlement offer in the conciliation

agreement. W hen their misdeeds were discovered, they imm ediately tried to

strong arm me into a settlement and, when l would not acquiesce, they

im mediately filed suit. They would not even attem pt to enter into negotiations

based on the actual alleged violations.

34. AGREE

35. DISAGREE

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 17 of 18
36. DISAGREE

37. A GREE

38. DISAGREE

39. DISAGREE

I declare under penalty of perjury that the foregoing is true and correct.

th d f February Signed this 18 ay o , 2016.

'A

Signature of Defendant

Address 10269 Trianon Place

W ellington, Florida 33449

Telephone N umber 561-445-3139

Case 9:15-cv-81732-KAM Document 11 Entered on FLSD Docket 02/19/2016 Page 18 of 18