Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm'n, Civil Action No. 11–2168 (CKK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtCOLLEEN KOLLAR–KOTELLY
Citation983 F.Supp.2d 1
PartiesCombat Veterans for Congress Political Action Committee, et al., Plaintiffs, v. Federal Election Commission, Defendant.
Decision Date30 September 2013
Docket NumberCivil Action No. 11–2168 (CKK)

983 F.Supp.2d 1

Combat Veterans for Congress Political Action Committee, et al., Plaintiffs,
v.
Federal Election Commission, Defendant.

Civil Action No. 11–2168 (CKK)

United States District Court, District of Columbia.

(September 30, 2013)


[983 F.Supp.2d 3]


Dan Backer, Washington, DC, for Plaintiffs.

Harry Jacobs Summers, Robert William Bonham, III, Anthony Herman, David Brett Kolker, Federal Election Commission, Washington, DC, for Defendant.

[983 F.Supp.2d 5]


MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiffs Combat Veterans for Congress Political Action Committee (“CVFC PAC” or “Committee”) and David H. Wiggs, in his official capacity as CVFC PAC's Treasurer, bring this action against Defendant Federal Election Commission (“Defendant” or “Commission” or “FEC”) seeking to set aside or modify Defendant's November 4, 2011 Final Determination purporting to find Plaintiffs liable for violating the reporting provisions of 2 U.S.C. § 434(a) and assessing fines against Plaintiffs totaling $8,690.00. Currently before the Court are Plaintiffs' [18] Motion for Summary Judgment and Defendant Federal Election Commission's [22] Motion for Summary Judgment. Upon consideration of the parties' submissions,1 the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's [22] Motion for Summary Judgment, and DENIES Plaintiffs' [18] Motion for Summary Judgment.

I. BACKGROUND
A. Factual Background
1. FECA's Administrative Fine System

The Federal Election Campaign Act of 1971, as amended and codified at 2 U.S.C. §§ 431–457, was enacted by Congress as part of a comprehensive system regulating the financing of federal election campaigns. The Act, as part of an extensive campaign finance regime, imposes significant requirements for public disclosure of contributions and expenditures made or received by political committees in connection with federal elections. 2 U.S.C. §§ 432–434. The Act also created the Federal Election Commission, an independent agency of the United States government with exclusive jurisdiction over the administration, interpretation, and civil enforcement of the Act. See generally2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Congress empowered the Commission to “formulate policy with respect to” FECA, 2 U.S.C. § 437c(b)(1), and authorized it to make “such rules ... as are necessary to carry out the provisions” of the Act. 2 U.S.C. §§ 437d(a)(8), 438(a)(8).

As part of the disclosure regime set up by FECA, political action committees, through their treasurers, must file periodic reports detailing the committee's receipts and disbursements. 2 U.S.C. §§ 434(a)-(b). The Commission is authorized under the statute to assess civil penalties for certain violations of the reporting provisions of the Act. 2 U.S.C. §§ 437g(a)(5)(A)-(B). FECA requires each political committee to have a treasurer, who must be designated on the committee's statement of organization, which is filed with the Commission. 2 U.S.C. §§ 432(a), 433(b)(4). The treasurer keeps and preserves records on behalf of the political committee, 2 U.S.C. § 432(c), (d), and signs and files reports with the Commission on behalf of the committee, 2 U.S.C. § 434(a)(1).

In 1999, Congress amended 2 U.S.C. § 437g(a)(4) to add a streamlined administrative

[983 F.Supp.2d 6]

fines system for filing and record-keeping violations. Congress authorized the Commission to assess civil money penalties for violations of FECA reporting requirements through “a simplified procedure for the FEC to administratively handle reporting violations.” H.R.Rep. No. 106–295, at 11 (1999). The Commission promulgated regulations, effective July 14, 2000, implementing these amendments. SeeAdministrative Fines, 65 Fed.Reg. 31,787 (May 19, 2001) (codified at 11 C.F.R. pt. 111B). Under these regulations, the Commission makes an initial determination that it has “reason to believe” that a respondent has violated 2 U.S.C. § 434(a). If the Commission concludes that there is reason to believe that a violation has occurred, the Commission notifies the respondent of the Commission's findings. 11 C.F.R. § 111.32. The notification includes the factual and legal basis for the finding, the proposed civil money penalty, and an explanation of the respondent's right to challenge both the reason-to-believe finding and the proposed penalty. Id. Upon receipt of this notification, the respondent can either pay the penalty, id. §§ 111.33–111.34, or challenge the finding and the proposed penalty, id. § 111.35.

If a respondent chooses to challenge the Commission's reason-to-believe finding or the proposed penalty, the respondent must file a written response with supporting documentation within 40 days of the date of the Commission's finding. Id. § 111.35. The administrative fines procedures do not provide for an oral hearing before the Commission. A respondent's written challenge can be based upon: (1) factual errors, (2) inaccurate calculations of the penalty, or (3) a showing that the respondent used “best efforts” but “reasonably unforeseen circumstances ... beyond the control of the respondent” prevented timely filing of the report at issue and the respondent filed the report no later than 24 hours after the end of these circumstances. Id. § 111.35(b)(1)-(3).

Regarding the third potential basis for a challenge, the regulations make clear that the unforeseen circumstances beyond a filer's control that would satisfy the third basis for an administrative fines challenge are very limited. The regulations specify certain circumstances that are expressly not considered “reasonably unforeseen and beyond the control of the respondent”: (1) negligence; (2) delays caused by committee vendors or contractors; (3) illness, inexperience, or unavailability of the treasurer or other staff; (4) committee computer, software, or Internet service provider failures; (5) a committee's failure to know the filing dates; and (6) a committee's failure to use filing software properly. Id. § 111.35(d). Acceptable circumstances include Commission computer and software failures, widespread disruption of information transmissions over the Internet not caused by any failure of the Commission's or respondent's computer systems or Internet service provider, and severe weather or other disaster-related incidents. Id. § 111.35(c).

Timely-filed challenges to the Commission's reason-to-believe finding are reviewed by the Commission's “Reviewing Officer,” a Commission staff person who is not involved in the Commission's reason-to-believe finding. After considering the respondent's submission, together with the reason-to-believe determination and any supporting documentation, id. § 111.36(a)-(b), the Reviewing Officer submits a written recommendation to the Commission, id. § 111.36(e), which is also provided to the respondent, id. § 111.36(f). The respondent has ten days to file a written response to the recommendation. Id. § 111.36(f).

[983 F.Supp.2d 7]

After receiving the Reviewing Officer's recommendation and any timely-filed additional response by the respondents, the Commission makes a final determination whether a violation of 2 U.S.C. § 434(a) by the respondent has occurred and whether to assess a civil money penalty under 11 C.F.R. § 111.37. When the Commission makes a final determination, the statement of reasons for the Commission's actions will, unless otherwise indicated by the Commission, consist of the reasons provided by the Reviewing Officer for the recommendation approved by the Commission. 11 C.F.R. § 111.37(d). If the Commission makes an adverse determination and imposes a penalty, the respondent has 30 days in which to petition a federal district court for judicial review. 2 U.S.C. § 437g(a)(4)(C)(iii).

2. Plaintiffs and the Administrative Fines at Issue

Plaintiff CVFC PAC is a non-partisan, non-connected political action committee registered with the Federal Election Commission. Pls.' Mem. at 4. CVFC PAC raises and disburses funds for the purpose of influencing federal elections. Id. Specifically, it endorses, contributes to, and otherwise supports the election of candidates who are combat veterans of the United States Military who meet ideological or policy standards determined by the organization. Id. On October 19, 2009, CVFC PAC registered with the Commission as a non-connected political action committee by filing an FEC Form 1, Statement of Organization, pursuant to 11 C.F.R. § 102.1(d). Id. This Statement of Organization named Michael Curry as both Treasurer and Custodian of Records. AF2355–AR076.2

Under FECA, as a political action committee, CVFC PAC, through its treasurer, must file periodic reports detailing its receipts and disbursements. 2 U.S.C. § 434(a)-(b). In the run-up to the 2010 federal election, Plaintiff, due to the actions of Mr. Curry, submitted a number of required reports to Defendant after the filing deadline.

The Committee's report for the third calendar quarter (the October Quarterly Report) was due to the Commission on October 15, 2010. See2 U.S.C. § 434(a)(4)(A)(i). CVFC PAC's treasurer Mr. Curry did not file the report by the required deadline. Pls.' Mem. at 4. On October 19, 2010, Mr. Curry telephoned James R. McAllister, an analyst in the Commission's Reports Analysis Division, to let him know “that the committee failed to get their 2010 [October Quarterly Report] in on time because the group was completely ‘swamped.’ ” AF2312–AR078. Mr. McAllister urged Mr. Curry to get the report in as quickly as possible. Id. In a subsequent call on November 3, 2010, Mr. Curry apologized for the delay in submitting the report and said he “would try to get it in by the end of the week.” Id. On November 4, 2010, still having received no report, Defendant sent Mr. Curry a Notice of Failure to File regarding the October 2010 Quarterly Report, which stated that, “[t]he failure to timely file this report may result in civil money penalties, an audit or legal enforcement...

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  • Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n, Civil Action No. 16-259 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 3 Agosto 2018
    ...violating federal election laws in 2010, was immune from judicial review); Combat Veterans for Cong. Political Action Comm. v. FEC , 983 F.Supp.2d 1, 10 (D.D.C. 2013), aff'd , 795 F.3d 151 (D.C. Cir. 2015) ("[T]he FEC enjoys ‘considerable prosecutorial discretion’ and ‘its decisions to......
  • State v. Grocery Mfrs. Ass'n, 99407-2
    • United States
    • United States State Supreme Court of Washington
    • 20 Enero 2022
    ...statutorily required factors for computation of fines." Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm'n , 983 F. Supp. 2d 1, 18-19 (D.D.C. 2013), aff'd, 417 U.S. App. D.C. 414, 795 F.3d 151 (2015).¶78 Here, the legislature provided a more definite fine that cal......
  • State v. Grocery Manufacturers Ass'n, 99407-2
    • United States
    • United States State Supreme Court of Washington
    • 20 Enero 2022
    ...statutorily required factors for computation of fines." Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm 'n, 983 F.Supp.2d 1, 18-19 (D.D.C. 2013), aff'd, 417 U.S.App.D.C. 414, 795 F.3d 151 (2015). Here, the legislature provided a more definite fine that calculates......
  • McChesney v. Fed. Election Comm'n, No. 17-1179
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 Agosto 2018
    ...adopt those listed in the Administrative Procedure Act, 5 U.S.C. § 706. See Combat Veterans for Cong. Political Action Comm. v. FEC , 983 F.Supp.2d 1, 10 (D.D.C. 2013), aff’d , 795 F.3d 151 (D.C. Cir. 2015). Under the APA, a reviewing court will set aside an agency action if the action is &......
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5 cases
  • Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n, Civil Action No. 16-259 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 3 Agosto 2018
    ...violating federal election laws in 2010, was immune from judicial review); Combat Veterans for Cong. Political Action Comm. v. FEC , 983 F.Supp.2d 1, 10 (D.D.C. 2013), aff'd , 795 F.3d 151 (D.C. Cir. 2015) ("[T]he FEC enjoys ‘considerable prosecutorial discretion’ and ‘its decisions to dism......
  • State v. Grocery Mfrs. Ass'n, 99407-2
    • United States
    • United States State Supreme Court of Washington
    • 20 Enero 2022
    ...statutorily required factors for computation of fines." Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm'n , 983 F. Supp. 2d 1, 18-19 (D.D.C. 2013), aff'd, 417 U.S. App. D.C. 414, 795 F.3d 151 (2015).¶78 Here, the legislature provided a more definite fine that calculat......
  • State v. Grocery Manufacturers Ass'n, 99407-2
    • United States
    • United States State Supreme Court of Washington
    • 20 Enero 2022
    ...statutorily required factors for computation of fines." Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm 'n, 983 F.Supp.2d 1, 18-19 (D.D.C. 2013), aff'd, 417 U.S.App.D.C. 414, 795 F.3d 151 (2015). Here, the legislature provided a more definite fine that calculates the ......
  • McChesney v. Fed. Election Comm'n, No. 17-1179
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 Agosto 2018
    ...adopt those listed in the Administrative Procedure Act, 5 U.S.C. § 706. See Combat Veterans for Cong. Political Action Comm. v. FEC , 983 F.Supp.2d 1, 10 (D.D.C. 2013), aff’d , 795 F.3d 151 (D.C. Cir. 2015). Under the APA, a reviewing court will set aside an agency action if the action is "......
  • Request a trial to view additional results

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