IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF KENTUCKY 

LOUISVILLE DIVISION 

______________________________________

CONWAY FOR SENATE, )

)

Plaintiff, ) 

 ) Civ. No. 3:12-244-CRS-JDM 

v. )

)

 

FEDERAL ELECTION COMMISSION, )

)

MOTION 

 Defendant. 

______________________________________ 

)

)

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

 Pursuant to Federal Rule of Civil Procedure 56(c), defendant Federal Election 

Commission respectfully moves for summary judgment. The Commission is entitled to 

judgment as a matter of law because the administrative record in this case — the contents of 

which are not in dispute — amply demonstrates that the Commission reasonably imposed a 

$4,950 civil penalty against plaintiff Conway for Senate for failing to file a mandatory 

campaign-finance report. Specifically, the administrative record shows that the Commission 

weighed all of plaintiff’s evidentiary submissions and arguments, conducted an investigation, 

and issued a reasoned determination finding that those arguments lacked factual support. 

Plaintiff cannot demonstrate any error — much less arbitrary and capricious error — in the 

Commission’s determination. Plaintiff’s new alternative claim that it used its “best efforts” to 

comply with its reporting obligations is foreclosed because plaintiff did not raise that argument 

before the Commission, and the argument is, in any event, devoid of legal merit. 

Case 3:12-cv-00244-CRS-JDM Document 16 Filed 02/15/13 Page 1 of 2 PageID #: 211
2 

In support of this motion, the Commission submits the attached Memorandum of Law 

and a Proposed Order. The Commission also relies upon the previously filed Administrative 

Record in this case (Doc. No. 13-1, 13-2). 

 WHEREFORE, the FEDERAL ELECTION COMMISSION respectfully requests that 

the Court enter judgment in favor of the Commission in this matter. 

 Respectfully submitted, 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

David Kolker 

Associate General Counsel 

Adav Noti 

Acting Assistant General Counsel 

s/ Benjamin A. Streeter III 

Benjamin A. Streeter III 

Attorney 

 FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

February 15, 2013 (202) 694-1650 

Case 3:12-cv-00244-CRS-JDM Document 16 Filed 02/15/13 Page 2 of 2 PageID #: 212
IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF KENTUCKY 

LOUISVILLE DIVISION 

______________________________________

CONWAY FOR SENATE, )

)

Plaintiff, ) 

 ) Civ. No. 3:12-244-CRS-JDM 

v. )

)

 

FEDERAL ELECTION COMMISSION, )

)

MEMORANDUM 

 Defendant. 

______________________________________ 

)

)

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

David Kolker 

Associate General Counsel 

Adav Noti 

Acting Assistant Attorney 

Benjamin A. Streeter III 

Attorney 

FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

February 15, 2013 (202) 694-1650 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 1 of 23 PageID #: 213
i 

TABLE OF CONTENTS 

 Page 

BACKGROUND ............................................................................................................ 1 

I. STATUTORY AND REGULATORY BACKGROUND .................................. 1 

A. Reporting Requirements for Political Committees ................................. 1 

B. FECA’s Enforcement Procedures ........................................................... 2 

C. The Commission’s Administrative-Fines Regulations ........................... 3 

II. THE ADMINISTRATIVE DETERMINATION CHALLENGED 

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

ARGUMENT .................................................................................................................. 8 

I. STANDARDS OF REVIEW .............................................................................. 8 

A. Summary Judgment Standard ................................................................. 8 

B. Review of Agency Adjudications ........................................................... 9 

II. THE COMMISSION IS ENTITLED TO SUMMARY JUDGMENT ............. 10 

A. The Administrative Record Establishes that the Commission 

Reasonably Found that Conway Failed to File Its 2010 

Year-End Report ................................................................................... 10 

B. Plaintiff’s Newly Raised Challenges to the Commission’s Action 

Are Waived, and in Any Event Meritless ............................................. 13 

CONCLUSION ............................................................................................................. 16 

 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 2 of 23 PageID #: 214
ii 

TABLE OF AUTHORITIES 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................. 9 

Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) ............................................. 9, 12, 13 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................... 8, 9 

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

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

(N.D. Ill. Jan. 22, 2004) .............................................................................. 13, 14 

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

Oct. 28, 2002) ................................................................................................... 10 

 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .............................................. 10 

Greenwood for Congress, Inc. v. FEC, Civ. No. 03-307, 2003 WL 22096125 (E.D. Pa. 

Aug. 15, 2003) ............................................................................................ 12, 13 

LeBlanc v. EPA, 310 Fed. App’x 770 (6th Cir. 2009) ............................................ 10, 14 

Lovely v. FEC, 307 F. Supp. 2d 294 (D. Mass. 2004) .................................................. 16 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............. 9 

Miles for Senate Comm. v. FEC, Civ. No. 01-83, 2002 WL 47008 (D. Minn. 

Jan. 9, 2002) ........................................................................................................ 9 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ........ 9 

Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221 (D.C. Cir. 2007) ................. 9 

San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) 

(en banc) ............................................................................................................ 10 

 

Schwalm v. Guardian Life Ins. Co., 626 F.3d 299 (6th Cir. 2010) ............................... 10 

Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997) ..................................................... 10 

United States v. A & P Trucking Co., 358 U.S. 121 (1958) ...............................16 

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 3 of 23 PageID #: 215
iii 

Wilson Air Center, LLC v. FAA, 372 F.3d 807 (6th Cir. 2004) .............................. 10, 14 

Statutes and Regulations 

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-457 ...................................... 7 

2 U.S.C. § 431(4)-(6) ...................................................................................................... 1 

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

2 U.S.C. § 432(a)-(d) ...................................................................................................... 1 

2 U.S.C. § 432(g)(1) ....................................................................................................... 2 

2 U.S.C. § 432(g)(2) ....................................................................................................... 2 

2 U.S.C. § 432(g)(3) ....................................................................................................... 2 

2 U.S.C. § 432(i) ........................................................................................................... 14 

2 U.S.C. § 434(a)-(b) ...................................................................................................... 1 

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

2 U.S.C. § 434(a)(4)(A)(i) .............................................................................................. 6 

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

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

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

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

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

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

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

2 U.S.C. § 437g(a)(4)(C)(iii) ...................................................................................... 3, 9 

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

2 U.S.C. § 437g(b) .......................................................................................................... 6

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 4 of 23 PageID #: 216
iv 

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 ...................................... 9 

5 U.S.C. § 706(2)(A), (C) ............................................................................................... 9 

11 C.F.R. § 104.7 .................................................................................................... 14, 15 

11 C.F.R. §§ 111.3-111.24 .............................................................................................. 2 

11 C.F.R. § 111.31 .......................................................................................................... 4

11 C.F.R. § 111.32 .......................................................................................................... 4

11 C.F.R. § 111.33 .......................................................................................................... 4

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

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

11 C.F.R. § 111.35(b)(3) ............................................................................................... 14 

11 C.F.R. § 111.35(b)(3)(ii) .......................................................................................... 15 

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

11 C.F.R. § 111.35(c)(1) ........................................................................................ 14, 15 

11 C.F.R. § 111.35(c)(2) ............................................................................................... 14 

11 C.F.R. § 111.35(c)(3) ............................................................................................... 15 

11 C.F.R. § 111.35(d) .......................................................................................... 5, 15 16 

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

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

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

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

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

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

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 5 of 23 PageID #: 217
v 

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

11 C.F.R. § 111.43(d)(1) ................................................................................................. 4 

11 C.F.R. § 111.43(e)(1) ................................................................................................. 4 

11 C.F.R. § 111.43(e)(2) ... 4Administrative Fines, 65 Fed. Reg. 31,787 (May 19, 2000) 4 

Fed. R. Civ. P. 56(a) ....................................................................................................... 8

Statement of Policy Regarding Treasurers Best Efforts, 72 Fed. Reg. 31,438 

 (June 7, 2007).................................................................................................... 14 

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

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

Miscellaneous 

H.R. Rep. No. 106-295 (1999) ........................................................................................ 3 

65 Cong. Rec. H5622 (daily ed. July 15, 1999) .............................................................. 3 

http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do .............................................. 6

http://www.fec.gov/directives/directive_52.pdf (Sept. 10, 2008)................................... 6 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 6 of 23 PageID #: 218
1 

Plaintiff Conway for Senate (“Conway”) challenges an administrative fine of $4,950 that 

defendant Federal Election Commission imposed as a penalty for plaintiff’s failure to file a 

mandatory campaign-finance disclosure report in January 2011. Conway asserts that the 

Commission’s imposition of this fine was arbitrary and capricious because one of Conway’s staff 

members claims to have sent the required report by FedEx before the statutory deadline. The 

administrative record on which the Commission based its decision, however, shows that the 

report at issue was not included in the FedEx envelope — an envelope whose contents were 

extensively and contemporaneously documented upon receipt. Thus, because the only question 

before the Court is whether the Commission’s action was supported by the administrative record, 

and that record amply supports the Commission’s decision, the Commission is entitled to 

judgment as a matter of law. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

 A. Reporting Requirements for Political Committees 

 The Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-457 (“FECA”), requires 

every “political committee” — which includes candidate campaigns, political parties, and other 

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

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

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

§ 434(a)-(b). FECA establishes a periodic schedule for such reports. As relevant here, a 

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

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

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 7 of 23 PageID #: 219
2 

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

 Committees of candidates seeking election to the United States Senate (and certain 

political party committees that focus on Senate candidates) must file their reports by mailing 

them to “the Secretary of the Senate, who shall receive such ... reports, as custodian for the 

Commission.” 2 U.S.C. § 432(g)(1). The Secretary of the Senate forwards those reports to the 

Commission within two working days. 2 U.S.C. § 432(g)(2). All other committees file their 

reports directly with the Commission. 2 U.S.C. § 432(g)(3). 

B. FECA’s Enforcement Procedures 

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

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

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

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

also 11 C.F.R. §§ 111.3-111.24 (regulations governing Commission’s enforcement process). 

Under FECA, if at least four of the FEC’s six Commissioners vote to find “reason to believe” 

that a violation has occurred, the Commission’s General Counsel can conduct an investigation 

that leads to a recommendation as to whether there is “probable cause to believe” a violation has 

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

probable cause, the Commission must attempt to resolve the matter by “informal methods of 

conference, conciliation, and persuasion, and to enter into a conciliation agreement” with the 

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

through voluntary conciliation, the Commission may file a civil suit against the respondent in 

federal district court. 2 U.S.C. § 437g(a)(6). 

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 8 of 23 PageID #: 220
3 

enforcement procedures for all violations of FECA — even the most straightforward violations 

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

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

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

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

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

violations of 2 U.S.C. § 434(a), which establishes, inter alia, the deadlines for political 

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

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

Commission may 

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

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

Commission and which takes into account the amount of the violation 

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

other factors as the Commission considers appropriate. 

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

conciliation period that applies to other FEC enforcement matters, this “administrative fines” 

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

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

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

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

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

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

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

C. The Commission’s Administrative-Fines Regulations 

In 2000, the Commission promulgated regulations implementing FECA’s administrativeCase 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 9 of 23 PageID #: 221
4 

fines mechanism. See Administrative Fines, 65 Fed. Reg. 31,787 (May 19, 2000) (codified as 

amended at 11 C.F.R. §§ 111.30-111.46). These regulations establish the procedures that the 

Commission follows in cases that the Commission determines are appropriate for treatment 

under the administrative-fines process. 11 C.F.R. § 111.31. 

The Commission’s regulations define overdue reports as “late” up until a certain number 

of days after the due date; after that date, the report is defined as “not filed.” 11 C.F.R. 

§ 111.43(e)(2). Specifically, “election sensitive” reports — including pre-general-election 

reports and quarterly reports due in October of an election year, 11 C.F.R. § 111.43(d)(1) — are 

considered “late” if they are filed after their due dates but more than four days before the 

relevant election; after that, they are considered “not filed.” 11 C.F.R. § 111.43(e)(2). Reports 

that are not election sensitive are “late” if filed within thirty days of their due date, and they are 

considered “not filed” after that point. 11 C.F.R. § 111.43(e)(1). 

The Commission’s regulations also establish the schedule of penalties authorized by 

2 U.S.C. § 437g(a)(4)(C)(i)(II). See 11 C.F.R. § 111.43(a)-(c). This schedule takes into account 

whether the untimely (or not filed) report was election sensitive, how late it was filed, the dollar 

amount of the receipts and disbursements it detailed, and the number of prior violations by the 

respondent. See id. 

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

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

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

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

finding and the amount of the penalty. Id. Upon receipt of this notification, the respondent can 

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 10 of 23 PageID #: 222
5 

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

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

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

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

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

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

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

prevented from filing in a timely manner by reasonably unforeseen 

circumstances that were beyond the control of the respondent; and . . . 

[t]he respondent filed no later than 24 hours after the end of these 

circumstances. 

11 C.F.R. § 111.35(b)(1)-(3). The regulations provide that “reasonably unforeseen 

circumstances” beyond a filer’s control that would satisfy this “best-efforts” defense include 

events such as natural disasters, 11 C.F.R. § 111.3(b), (c), but do not include causes such 

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

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

the Commission’s “Reviewing Officer,” 11 C.F.R. § 111.36(a), a member of the Commission’s 

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

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

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

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

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

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

except in direct response to the Reviewing Officer’s recommendation. Id. 

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

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

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 11 of 23 PageID #: 223
6 

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

the amount of the civil penalty. 11 C.F.R. § 111.37(a)-(c). When the Commission makes a final 

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

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

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

II. THE ADMINISTRATIVE DETERMINATION CHALLENGED IN THIS CASE 

Mr. Jack Conway was the Democratic Party’s 2010 nominee for United States Senate in 

Kentucky. (See Compl. ¶ 6 (Doc. 1).) Plaintiff was Mr. Conway’s “principal campaign 

committee.” See id; 2 U.S.C. § 431(5). 

In 2010, plaintiff timely filed its first three quarterly reports as required by 2 U.S.C. 

§ 434(a)(4)(A). See http://www.fec.gov/fecviewer/CandidateCommitteeDetail.do (search for 

“Conway for Senate” and click on “Filings”). In December 2010, the Commission sent notices 

to all registered political committees and treasurers, including Conway for Senate, reminding 

them of the January 2011 due dates for year-end reports. (See Administrative Record (“AR”) 

040-041 (Doc. 13-2).) Conway’s year-end report was due on January 31, 2011. See 2 U.S.C. 

§ 434(a)(4)(A)(i); AR041. 

On February 17, 2011, having not received Conway’s year-end report, the Commission 

sent a non-filer notice to Conway’s treasurer. 2 U.S.C. § 437g(b); AR001. Conway then filed its 

year-end report on March 10, 2011 (AR004), but because that was more than thirty days after the 

due date, the report was deemed “not filed” under the Commission’s regulations for non-election 

sensitive reports. See id.; supra p.4. On March 30, the Commission’s staff recommended that 

the Commission (1) find reason to believe that Conway and its treasurer had “not filed” its yearend report; and (2) assess an administrative fine of $4,950. (AR002-007.) The Commission 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 12 of 23 PageID #: 224
7 

unanimously approved this recommendation on April 1, 2011. (AR017.)1 

The Commission notified Conway of its reason-to-believe finding and proposed fine by 

letter dated April 4, 2011. (AR024-027.) On May 4, Conway’s treasurer R. Wayne Stratton 

submitted a written “protest” of the reason-to-believe determination. (AR028-033.) This protest 

asserted that the Committee “consistently filed on time reports and believe[d it] did so this time” 

(AR028), and attached an affidavit from a receptionist at Mr. Stratton’s law firm averring that 

she had sent the year-end report and three other reports by FedEx on January 25 (AR029). The 

protest accordingly requested that the Committee “abate” the civil penalty. (AR028.) 

The Commission’s Reviewing Officer, Ms. Dayna C. Brown, acknowledged receipt of 

Conway’s protest by letter dated May 9, 2011. (AR034.) On June 20, in the course of preparing 

her recommendation, Ms. Brown sent a letter to the Superintendent of the Office of the Secretary 

of the Senate, Ms. Dana McCallum. (AR050.) That letter asked Ms. McCallum to review the 

Secretary of the Senate’s records to ascertain if Conway’s year-end report had been received in 

January 2011. (Id.) On June 22, 2011, Ms. McCallum responded with a letter stating that on 

January 28, 2011, her office had received from Conway a FedEx envelope containing five 

different reports. (AR051.) Ms. McCallum identified each of those five reports, none of which 

was Conway’s 2010 year-end report. (Id.)2

 Ms. McCallum also confirmed that the Senate did 

not receive the year-end report until March 16, 2011. (AR051.) 

Ms. Brown issued her preliminary recommendation on June 29, 2011. (AR059-109.) 

She rejected Conway’s factual assertion that it had timely submitted its year-end report, noting 

 

1

 The Commission’s procedures for voting on reason-to-believe findings in administrative 

fines matters are available at http://www.fec.gov/directives/directive_52.pdf (Sept. 10, 2008).

2

 The reports in the envelope were “an October 15 Quarterly Report Amendment, three (3) 

separate and distinct 12-Day Pre-General Report Amendments, and a 30-Day Post-General 

Report Amendment.” (AR051.) 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 13 of 23 PageID #: 225
8 

that Conway’s staff had made inconsistent statements regarding that submission during the 

Commission’s investigation, including multiple statements contradicting the claim that the yearend report had been sent in the same FedEx envelope as the other reports. (AR061-062.) Ms. 

Brown also credited Ms. McCallum’s written confirmation that the Senate had not received 

Conway’s year-end report until March 2011. (See id.) Ms. Brown accordingly recommended 

that the Commission make a final determination that Conway had violated 2 U.S.C. § 434(a) and 

impose a civil penalty of $4,950. 

Ms. Brown mailed her recommendation to Mr. Stratton (AR058), who submitted a 

written response on July 8, 2011 (AR112-121). This response included additional affidavits and 

documentation regarding the preparation and mailing of Conway’s year-end report. (AR113-

121.) Ms. Brown reviewed this material, determined that it did not change her recommendation 

(see AR124), and formally submitted that recommendation to the Commission on March 28, 

2012. (AR 122-134.) 

On April 5, 2012, the Commission voted unanimously (with one Commissioner not 

participating) to adopt the Reviewing Officer’s recommendations and determine that Conway 

and its treasurer had violated 2 U.S.C. § 434(a). (AR135.) The Commission assessed the same 

civil penalty calculated at the reason-to-believe stage, $4,950. (Id.) The Commission notified 

Conway of its final determination on April 10, 2012 (AR136-138), and plaintiff filed its petition 

for review with this Court thirty days later, on May 10.

ARGUMENT 

I. STANDARDS OF REVIEW 

A. Summary Judgment Standard 

Summary judgment is proper if there are no disputed issues of material fact and the 

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 14 of 23 PageID #: 226
9 

Catrett, 477 U.S. 317, 323 (1986). The Court must view the evidence and the inferences that 

may reasonably be drawn from the evidence in the light most favorable to the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A party opposing a properly 

supported motion for summary judgment may not rest upon mere allegations or denials, but must 

provide evidence of specific facts showing that there is a genuine issue for trial. Celotex, 

477 U.S. at 324; Liberty Lobby, 477 U.S. at 248; Matsushita Elec. Indus. Co., Ltd. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986). 

B. Review of Agency Adjudications 

Pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, 

a reviewing court can set aside final agency action only if it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C). This standard 

applies to challenges to the Commission’s imposition of administrative fines under 2 U.S.C. 

§ 437g(a)(4)(C)(iii). Cooksey v. FEC, No. Civ. 04-1152, 2005 WL 1630102, at *2 (W.D. La. 

June 9, 2005) (citing Miles for Senate Comm. v. FEC, Civ. No. 01-83, 2002 WL 47008 

(D. Minn. Jan. 9, 2002)). “An agency decision is arbitrary and capricious if the agency fails to 

examine relevant evidence or articulate a satisfactory explanation for the decision.” Bangura v. 

Hansen, 434 F.3d 487, 502 (6th Cir. 2006) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto Ins. Co., 463 U.S. 29, 42-43 (1983)). The arbitrary and capricious standard of review is 

“highly deferential” and “presumes the validity of agency action.” Nat’l Ass’n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007). Indeed, “the arbitrary and capricious 

standard is the least demanding form of judicial review of administrative action. When it is 

possible to offer a reasoned explanation, based on evidence, for a particular outcome, that 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 15 of 23 PageID #: 227
10 

outcome is not arbitrary or capricious.” Schwalm v. Guardian Life Ins. Co., 626 F.3d 299, 308 

(6th Cir. 2010) (internal quotation marks omitted). “[T]he party challenging an agency’s action 

as arbitrary and capricious bears the burden of proof.” San Luis Obispo Mothers for Peace v. 

NRC, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc). 

 “As a general matter, courts [in APA cases] confine their review to the administrative 

record, which includes all materials compiled by the agency that were before the agency at the 

time the decision was made.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997) (internal 

quotation marks omitted); see Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). 

Accordingly, plaintiffs are precluded from raising before a reviewing court any arguments not 

presented to the agency in the administrative proceeding. Wilson Air Center, LLC v. FAA, 372 

F.3d 807, 813 (6th Cir. 2004) (“It is inappropriate for courts reviewing agency decisions to 

consider arguments not raised before the administrative agency involved”); LeBlanc v. EPA, 310 

Fed. App’x 770, 776 (6th Cir. 2009) (“A reviewing court may not consider arguments that were 

not previously raised before an administrative agency . . . .”). Thus, the question presented to the 

court on motions for summary judgment in APA challenges is whether, “on the basis of the 

administrative record, . . . an agency reasonably could have found the facts as it did.” 

Cunningham v. FEC, Civ. No. IP-01-0897-C-B/S, 2002 WL 31431557, at *3 (S.D. Ind. Oct. 28, 

2002) (citations omitted). 

II. THE COMMISSION IS ENTITLED TO SUMMARY JUDGMENT 

A. The Administrative Record Establishes that the Commission Reasonably 

Found that Conway Failed to File Its 2010 Year-End Report 

The Commission’s finding that Conway failed to timely file its 2010 year-end report was 

a reasonable determination based on the administrative record. The Reviewing Officer’s 

recommendations, which the Commission adopted, described the underlying facts accurately, 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 16 of 23 PageID #: 228
11 

correctly analyzed the violation, and applied the Commission’s administrative-fines regulations 

appropriately. 

The two primary pieces of evidence on which the Reviewing Officer relied establish that 

the Commission’s determination was reasonable. First, the Reviewing Officer took affirmative 

steps to investigate whether Conway’s year-end report had been received by the Secretary of the 

Senate in January 2011. That office responded with detailed information regarding the exact 

contents of the FedEx envelope in question: Five specific documents, each with a copy of a 

FedEx label showing the same tracking number; each with a cover letter signed by Conway’s 

treasurer; each with a handwritten and initialed intake sheet showing a FedEx shipping date of 

January 25 and receipt date of January 28; and each time-stamped “Secretary of the Senate 

11 Jan 28” between 2:39 p.m. and 2:41 p.m. (AR086-103.) In light of this extensive evidence 

showing that the Secretary of the Senate had exhaustively catalogued these five documents as 

coming from the same FedEx envelope — and the absence of any allegation, much less 

evidence, that it contained six documents — it was eminently reasonable for the Commission to 

credit the Secretary’s statement that the envelope did not, in fact, contain any documents beyond 

those catalogued by the Secretary’s office.3

Second, the administrative record shows that Conway’s personnel gave shifting and 

inconsistent explanations about the mailing of the year-end report. Initially, Ms. Paula Pasley 

called the Commission on March 10, 2011, and claimed to have “a certified-mail receipt 

 

3

 A Conway employee, Ms. Paula Pasley, submitted an affidavit stating that she had 

“printed” and “reviewed” four reports, including the year-end report, which “were then turned 

over” to another employee for mailing. (AR115.) Similarly, the affidavit of Ms. Lynn-Marie 

Johnson, the receptionist charged with mailing the documents, states that she was given four 

documents to mail. (AR64.) On its face, these statement are inconsistent with the undisputed 

evidence from the office of the Secretary of the Senate that it had received five reports — an 

inconsistency that casts doubt on the accuracy of Conway’s evidence and recordkeeping. 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 17 of 23 PageID #: 229
12 

confirming delivery” of the year-end report. (AR081 (emphasis added).) Then, on April 20, 

Conway’s treasurer told the Commission that the year-end report had been “sent separately” by 

FedEx from the other reports the Senate had received on the same day. (AR081.) Finally, on 

May 5, a receptionist submitted an affidavit stating that the year-end report and four other 

documents “were packaged” — she does not claim to have personally packaged them — “in a 

Federal Express envelope” for shipping. (AR064.) Although plaintiff emphasizes only this last 

statement (see Pl.’s Sum. J. Mem.(“Conway Mem.”) at 7 (Docket 15-1)), it was reasonable for 

— and indeed, incumbent upon — the Commission to take the entire record into account.4 Thus, 

the Reviewing Officer committed no error in finding that the inconsistency in Conway’s 

statements cast doubt upon their accuracy. (See AR061-062.) While Conway “may offer a 

different explanation for these facts, an alternative explanation does not negate the 

reasonableness of the [agency’s] finding.” Bangura, 434 F.3d at 503. 

Conway relies on Greenwood for Congress, Inc. v. FEC, Civ. No. 03-207, 2003 WL 

22096125 (E.D. Pa. Aug. 15, 2003), in which the district court found that the Commission had 

erred in assessing an administrative fine. In Greenwood, however, the reporting committee had 

provided concrete evidence that, based on the registered weight of the package it sent to the 

Commission, that package must have contained more material than the Commission 

 

4

 Conway mischaracterizes its own evidence by asserting that its treasurer “insisted he sent

the report in the envelope” and “the secretary and the office manager produced affidavits 

confirming that they had printed out and mailed the year-end report in the envelope.” (Conway 

Mem. at 7; (emphasis added).) In reality, Conway’s treasurer admitted that he had no personal 

knowledge of the mailing. (See AR113 (stating “I am not sure what happened” but explaining 

what he knew “according to the receptionist”).) The office manager similarly admitted that she 

had not sent the report herself. (See AR115 (stating that “reports were then turned over to Marie 

Johnson, receptionist . . . for mailing”)). Yet, as noted above, the receptionist’s affidavit does 

not state that she personally placed the report in an envelope. (AR064.) Accordingly, Conway’s 

reference to “tracking documents from Federal Express showing that the envelope arrived timely 

at the FEC” (Conway Mem. at 7) is irrelevant, as there is no evidence that the report in question 

was in that envelope. 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 18 of 23 PageID #: 230
13 

acknowledged receiving. See id. at *2. Because the Commission had not explained its basis for 

rejecting this evidence, the district court held that the Commission had simply “disregarded” it. 

Id. at *3. Here, however, Conway presented no such evidence to the Commission. (See AR061 

(noting treasurer’s statement that he was unable to confirm precise weight of shipment).) 

Instead, as noted previously, Conway merely submitted affidavits that were inconsistent with the 

committee’s prior statements. The Reviewing Officer then conducted a thorough search, 

communicated with relevant staff at the Senate, and received conclusive documentary evidence 

of which reports had in fact been delivered. She weighed all of this evidence and found the 

committee’s claims lacking in factual support, and the Commission adopted her analysis. Thus, 

far from “disregarding” any evidence or acting capriciously, the Commission considered the 

entire record, and its conclusion was reasonably based on that record. See Bangura, 434 F.3d at 

503 (holding that agency action is “not arbitrary and capricious” when agency provides 

“reasoned explanation” that is “supported by substantial evidence”). “Since the record is clear 

that the relevant factors were considered and the applicable regulations were strictly applied to 

Plaintiff[’s] violations,” the Court should conclude that the Commission’s final determination 

and assessment of civil penalties is “supported by a rational basis and does not indicate a clear 

error of judgment. In light of that conclusion, further analysis is neither required, nor permitted.” 

Cox for U.S. Senate Comm., Inc. v. FEC, Civ. No. 03C3715, 2004 WL 783435, at *5 (N.D. Ill. 

Jan. 22, 2004). 

B. Plaintiff’s Newly Raised Challenges to the Commission’s Action Are Waived, 

and in Any Event Meritless 

Conway raises in its summary judgment brief for the first time the claim that the 

Commission “fail[ed] to give plaintiff the benefit of the doubt under the best efforts defense, a 

safe harbor provision.” (Conway Mem. at 2; see also id. at 7-9.) But APA plaintiffs are 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 19 of 23 PageID #: 231
14 

precluded from raising before a reviewing court any arguments not presented to the agency 

during the administrative proceedings under review. See Wilson, 372 F.3d at 813; LeBlanc, 310 

Fed. App’x at 775. “‘Simple fairness to those who are engaged in the tasks of administration, 

and to litigants, requires as a general rule that courts should not topple over administrative 

decisions unless the administrative body not only has erred but has erred against objection made 

at the time appropriate under its practice.’” Cunningham, 2002 WL 31431557, at *4 (emphasis 

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

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

courts.” Id. (citation and footnote omitted). Indeed, the Commission’s regulations specifically 

put all administrative-fines respondents on notice that “failure to raise an argument in a timely 

fashion during the administrative process” constitutes “a waiver of the respondent’s right to 

present such argument in a petition to the district court.” 11 C.F.R. § 111.38. Thus, because 

Conway never raised its “best-efforts” defense before the Commission, that claim is waived. 

 Even if the Court were to consider Conway’s new argument, it lacks merit and should be 

rejected. The Commission’s regulations provide that an administrative-fines respondent may 

challenge a reason-to-believe finding on the grounds that the respondent “used best efforts to file 

in a timely manner” but was prevented from doing so “by reasonably unforeseen circumstances” 

beyond the respondent’s control. 11 C.F.R. § 111.35(b)(3); see also 2 U.S.C. § 432(i).5 The 

circumstances the Commission considers “reasonably unforeseen” include such systemic failures 

as a breakdown of Commission computers or Commission-provided software, 11 C.F.R. 

 

5

 Conway cites (Conway Mem. at 7) 11 C.F.R. § 104.7, which defines “best efforts” in the 

context of collecting information about a committee’s contributors — a context not relevant here. 

Conway also cites (Conway Mem. at 8) the Commission’s “Statement of Policy Regarding 

Treasurers Best Efforts,” 72 Fed. Reg. 31,438 (June 7, 2007), but that statement specifically does 

not apply to administrative fines cases. Id. at 31,440 (“This Policy Statement does not affect the 

Commission’s AFP [Administrative Fines Program] . . . .”).

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 20 of 23 PageID #: 232
15 

§ 111.35(c)(1); widespread disruptions to the internet (not specific to the respondent or its 

internet service provider), 11 C.F.R. § 111.35(c)(2); or severe weather or a disaster-related 

incident, 11 C.F.R. § 111.35(c)(3).6 The Commission’s regulations categorically exclude from 

its best-efforts defense any errors that arise from the negligence or inexperience of the 

committee’s staff. See 11 C.F.R. § 111.35(d). 

Conway does not even argue — much less provide evidence — that any of the specified 

“unforeseen circumstances” apply to Conway’s failure to file its year-end report.7 Instead, 

Conway claims that “[a]ssuming arguendo that the report was in fact not filed, the FEC should 

have undertaken a ‘best efforts’ analysis based on the evidence.” (Conway Mem. at 8.) In other 

words, Conway argues that the Commission was required to ask sua sponte whether the 

respondent’s evidence could state a best-efforts defense, and, if so, to make that argument 

affirmatively on Conway’s behalf. Alternatively, Conway acknowledges that the Commission 

“had discretion not to apply the best efforts analysis,” but plaintiff claims that the exercise of 

such discretion required the Commission to explain why it was not making a best-efforts 

determination. (See Conway Mem. at 9.) Under either theory, Conway argues, the 

Commission’s failure to explain the absence of a best-efforts analysis is arbitrary and capricious. 

Conway’s argument has no basis in law. The Commission is not aware of any authority 

for the proposition that an agency must raise and consider a defense that an administrative 

respondent never raised on its own behalf. Indeed, that proposition cannot be reconciled with the 

extensive case law discussed above holding that a respondent’s failure to raise an argument 

 

6

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

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

Conway has not alleged that it filed its report within 24 hours after the conclusion of any 

unforeseen circumstances. 

7

 Indeed, no internet-related excuse could possibly apply here, given that Senate candidates 

(unlike almost all other committees) must file their reports by mail. See supra p.2. 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 21 of 23 PageID #: 233
16 

waives it. The only authority Conway cites (Conway Mem. at 8) is Lovely v. FEC, 

307 F. Supp. 2d 294 (D. Mass. 2004). In that case, the administrative respondents had “raised 

and preserved” a best-efforts defense before the Commission, id. at 300, and the Commission 

had rejected that defense without explaining why, id. at 300-01. Conway, in contrast, did not 

raise this defense before the agency, so the Commission had no obligation to consider it. 

In any event, the evidence developed by the Reviewing Officer and set forth in the 

administrative record establishes that Conway could not have availed itself of the best-efforts 

defense because it failed to file its year-end report due to its own negligence. Although 

Conway’s staff may all have intended that the year-end report be timely filed, they failed to 

exercise the care necessary to ensure that the requisite report in fact was transmitted. Conway’s 

failure to submit the requisite report was, in other words, simple negligence. Conway, like any 

other principal, has a duty to supervise its agents and is responsible for the agents’ actions within 

the scope of their authority. “[I]t is elementary that ... impersonal entities [like partnerships, 

corporations and other associations] can be guilty of . . . violations of regulatory statutes through 

the doctrine of respondent superior.” United States v. A & P Trucking Co., 358 U.S. 121, 125 

(1958). Thus, the failure of Conway’s staff to take the basic steps necessary to place the correct 

report in the correct envelope forecloses application of the Commission’s regulatory best-efforts 

defense. 11 C.F.R. § 111.35(d). 

CONCLUSION 

For the foregoing reasons, the Commission’s imposition of an administrative fine on 

plaintiff was reasonable and fully supported by the administrative record. Accordingly, the 

 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 22 of 23 PageID #: 234
17 

Commission’s motion for summary judgment should be granted, and plaintiffs’ motion for 

summary judgment should be denied. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

Lisa J. Stevenson 

Deputy General Counsel – Law 

David Kolker 

Associate General Counsel 

Adav Noti 

Acting Assistant General Counsel 

_s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

 FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

February 15, 2013 (202) 694-1650 

Case 3:12-cv-00244-CRS-JDM Document 16-1 Filed 02/15/13 Page 23 of 23 PageID #: 235