McChesney v. Petersen, 8:16CV168

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtLaurie Smith Camp, Chief United States District Judge
Citation275 F.Supp.3d 1123
Parties Robert C. MCCHESNEY, in his official capacity as Treasurer of Bart McLeay for U.S. Senate, Inc.; and Bart McLeay for U.S. Senate, Inc., Plaintiffs, v. Matthew S. PETERSEN, in his official capacity as Chair of the Federal Election Commission; Federal Election Commission; and United States of America, Defendants.
Decision Date22 December 2016
Docket Number8:16CV168

275 F.Supp.3d 1123

Robert C. MCCHESNEY, in his official capacity as Treasurer of Bart McLeay for U.S. Senate, Inc.; and Bart McLeay for U.S. Senate, Inc., Plaintiffs,
v.
Matthew S. PETERSEN, in his official capacity as Chair of the Federal Election Commission; Federal Election Commission; and United States of America, Defendants.

8:16CV168

United States District Court, D. Nebraska.

Signed December 22, 2016


275 F.Supp.3d 1126

L. Steven Grasz, Husch, Blackwell Law Firm, Omaha, NE, for Plaintiffs.

Daniel A. Petalas, Erin R. Chlopak, Kevin Deeley, Lisa J. Stevenson, Robert W. Bonham, III, Federal Election Commission, Washington, DC, for Defendants.

AMENDED MEMORANDUM AND ORDER

Laurie Smith Camp, Chief United States District Judge

This matter is before the Court on the Motions to Dismiss filed by Defendants Federal Election Commission (the "Commission") and Matthew S. Petersen ("Petersen"), ECF No. 21, and the United States of America, ECF No. 25. Plaintiffs have moved to dismiss their claims against the United States without prejudice. Accordingly, their Notice of Dismissal, ECF No. 28, will be approved and Defendant United States of America will be dismissed. For the reasons stated below, the Motion filed by the Commission and Petersen will be granted.

BACKGROUND

Because this case turns on the Commission's interpretation of federal administrative and election law, a discussion of the statutory and regulatory scheme involved is helpful to an understanding the nature of Plaintiffs' claims. The Court will also summarize the promulgation and administration of the relevant fine program at issue. Finally, the Court will provide background regarding how the statutes, regulations, and fine program were applied to Plaintiffs.

I. FECA and its Enforcement

a. The Commission and FECA Enforcement in General

The Commission is an independent agency of the United States government with exclusive jurisdiction over civil enforcement of the Federal Election Campaign Act of 1971, as amended, 52 U.S.C. § 30101, et seq. ("FECA"). See 52 U.S.C. §§ 30106(b)(1), 30107(a), 30109. The Commission is composed of six Commissioners, including Defendant Petersen, who currently serves as Chairman. Under FECA, if at least four Commissioners find "reason to believe" that a FECA violation has occurred, the Commission's General Counsel may conduct an investigation, leading to a recommendation as to whether there is "probable cause to believe" a violation has

275 F.Supp.3d 1127

occurred. 52 U.S.C. § 30109(a)(1)–(3). If at least four Commissioners then find probable cause exists, 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. 52 U.S.C. § 30109(a)(4)(A)(i). If the Commission is unable to resolve the matter through voluntary conciliation, the Commission may file a de novo civil suit to enforce the Act in federal district court. 52 U.S.C. § 30109(a)(6).

b. Political Committees and "48 Hour" Disclosure Reports

FECA requires political committees to designate a treasurer to maintain the committee's financial records. See 52 U.S.C. § 30102(a) - (d). The term "political committees" as used in FECA, includes candidate campaigns, political parties, and other political organizations. See 52 U.S.C. § 30101(4) – (6). Under FECA, the treasurer must sign and file periodic reports on behalf of the political committee, including reports regarding the committee's receipts and disbursements. 52 U.S.C. § 30104(a) - (b). These reports must be filed in compliance with the schedule established in FECA and its implementing regulations. See 52 U.S.C. § 3010411(a)(11), (b); 11 C.F.R. § 104.14(d). Reports for the principal campaign committee of a candidate for the office of U.S. Senator must be filed with the Secretary of the Senate. 52 U.S.C. § 30102(g) ; 11 C.F.R. § 105.2.

Section 30104(a)(6)(A) requires principal campaign committees to report in writing any contribution of $1,000 or more received by the committee after the 20th day, but more than 48 hours before, any election. Such notifications "shall be made within 48 hours after the receipt of such contribution and shall include the name of the candidate and the office sought by the candidate, the identification of the contributor, and the date of receipt and amount of the contribution." 52 U.S.C. § 30104(a)(6)(A).

c. The Administrative Fines Program

In 1999, Congress amended FECA to create an enforcement system for violations of the periodic filing requirements. See Treasury Postal Serv. and General Government Appropriations Act, 2000, Pub. L. No. 106–58, § 640, 113 Stat. 430, 476–477 (1999) (codified at 52 U.S.C. § 30109(a)(4)(C) ). Congress authorized the Commission to directly assess civil money penalties for violations of 52 U.S.C. § 30104(a), including violations of the deadlines for political committees' disclosure reports. Pursuant to this authority, after the Commission finds reason to believe a political committee and its treasurer have failed to file a report within the established deadlines, 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.

52 U.S.C. § 30109(a)(4)(C)(i)(II). A respondent who objects to the Commission's imposition of an administrative fine may seek judicial review of the Commission's determination in federal district court "by filing in such court ... a written petition requesting that the determination be modified or set aside." 52 U.S.C. § 30109(a)(4)(C)(iii).

In 2000, the Commission promulgated regulations establishing the procedures that apply to administrative fine matters and the schedules of penalties authorized by 52 U.S.C. § 30109(a)(4)(C)(i)(II). See

275 F.Supp.3d 1128

Administrative Fines, 65 Fed. Reg. 31,787 (May 19, 2000) ("May 2000 Administrative Fines Rule"); 11 C.F.R. §§ 111.43(a)-(c), 111.44. These civil penalty schedules contained factors to consider when assessing a penalty, including whether the untimely report was election sensitive, how late it was filed, the dollar amount of the receipts and disbursements involved, and the number of prior violations by the respondent. See 11 C.F.R. § 111.43(a)-(c). The regulation formulas established specific penalties for 48–hour notices. 11 C.F.R. § 111.44(a)(1). Under § 111.44(a)(1) the current civil penalty for each untimely 48–hour notice is $137 plus ten percent of the "amount of the contribution(s) not timely reported."

When the Commission determines that it has "reason to believe" that a respondent has violated 52 U.S.C. § 30104(a), the Commission notifies the respondent of the Commission's finding, including the proposed civil money penalty. 11 C.F.R. § 111.32. Upon receipt of this notification, the respondent may either pay the penalty, 11 C.F.R. §§ 111.33 – 111.34, or challenge the finding and/or the penalty by filing a written response within 40 days of the date of the Commission's finding. 11 C.F.R. § 111.35(a), (e). The written response must assert one of three possible grounds for such a challenge: (1) factual errors in the Commission's finding; (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 doing so by "reasonably unforeseen circumstances ... beyond the respondent's control," and the respondent filed the report no later than 24 hours after such circumstances ended. 11 C.F.R. § 111.35(b)(1)–(3).

Timely filed responses challenging the Commission's reason-to-believe finding are reviewed by a Commission "Reviewing Officer." 11 C.F.R. § 111.36(a). The Reviewing Officer submits a written recommendation to the Commission, that is also provided to the respondent. 11 C.F.R. § 111.36(e), (f). The respondent may file a written response to the recommendation within ten days, but generally may not raise new arguments beyond those in the original written response. 11 C.F.R. § 111.35(f).

After receiving the Reviewing Officer's recommendation and any timely additional response from the respondents, the FEC makes a final determination by an affirmative vote of at least four Commissioners as to whether the respondent violated 52 U.S.C. § 30104(a), and, if so, the amount of the civil penalty. 11 C.F.R. § 111.37. The reasons provided by the Reviewing Officer for the recommendation serve as the reasons for the Commission's action, unless otherwise indicated by the Commission. 11 C.F.R. § 111.37(d).

The respondent then has 30 days in which to petition for the judicial review authorized by 52 U.S.C. § 30109(a)(4)(C)(iii). Judicial review is limited to the issues and facts raised before the...

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4 practice notes
  • State v. Fed. Subsistence Bd., Case No. 3:20-cv-00195-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • November 18, 2020
    ...50 C.F.R. § 100.10(b)(1).102 5 U.S.C. § 552b(a)(1).103 5 U.S.C. § 552b(b).104 5 U.S.C. § 552b(a)(2).105 McChesney v. Petersen , 275 F. Supp. 3d 1123, 1138–39 (D. Nebraska 2016).106 Braniff Master Exec. Council of Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd. , 693 F.2d 220, 226 (D.C.......
  • Alaska Dep't of Fish & Game v. Fed. Subsistence Bd., Case No. 3:20-cv-00195-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • September 18, 2020
    ...meeting may be closed to the public based on the "relevant exemptive provision." 5 U.S.C. § 552b(f)(1). 138. McChesney v. Petersen, 275 F. Supp. 3d 1123, 1138-39 (D. Neb. 2016). 139. Braniff Master Exec. Council of Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd., 693 F.2d 220, 226 (D.C......
  • O'Toole v. City of Walnut Grove, Case No. 6:16–CV–03332–BCW
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 25, 2017
    ...in nature, to be attributable to the City, O'Toole must establish that that the City's "policy or custom must have played a part in the 275 F.Supp.3d 1123violation of federal law." Id. (citations omitted).Under the uncontroverted facts, while Cole personally paid the filing fee and certain ......
  • Stricker v. Auto-Owners Ins. Co., 2:22-cv-4074-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 27, 2022
    ...(8th Cir. 2011). Documents referenced in the complaint are also properly considered “embraced by the pleadings.” McChesney v. Petersen, 275 F.Supp.3d 1123, n.11132 (D. Neb. 2016), aff'd 900 F.3d 578 (8th Cir. 2018); Downey v. Coal. Against Rape & Abuse, Inc., 143 F.Supp.2d 423, n. 5 449 (D.......
4 cases
  • State v. Fed. Subsistence Bd., Case No. 3:20-cv-00195-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • November 18, 2020
    ...50 C.F.R. § 100.10(b)(1).102 5 U.S.C. § 552b(a)(1).103 5 U.S.C. § 552b(b).104 5 U.S.C. § 552b(a)(2).105 McChesney v. Petersen , 275 F. Supp. 3d 1123, 1138–39 (D. Nebraska 2016).106 Braniff Master Exec. Council of Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd. , 693 F.2d 220, 226 (D.C.......
  • Alaska Dep't of Fish & Game v. Fed. Subsistence Bd., Case No. 3:20-cv-00195-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • September 18, 2020
    ...meeting may be closed to the public based on the "relevant exemptive provision." 5 U.S.C. § 552b(f)(1). 138. McChesney v. Petersen, 275 F. Supp. 3d 1123, 1138-39 (D. Neb. 2016). 139. Braniff Master Exec. Council of Air Line Pilots Ass'n Int'l v. Civil Aeronautics Bd., 693 F.2d 220, 226 (D.C......
  • O'Toole v. City of Walnut Grove, Case No. 6:16–CV–03332–BCW
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 25, 2017
    ...in nature, to be attributable to the City, O'Toole must establish that that the City's "policy or custom must have played a part in the 275 F.Supp.3d 1123violation of federal law." Id. (citations omitted).Under the uncontroverted facts, while Cole personally paid the filing fee and certain ......
  • Stricker v. Auto-Owners Ins. Co., 2:22-cv-4074-NKL
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 27, 2022
    ...(8th Cir. 2011). Documents referenced in the complaint are also properly considered “embraced by the pleadings.” McChesney v. Petersen, 275 F.Supp.3d 1123, n.11132 (D. Neb. 2016), aff'd 900 F.3d 578 (8th Cir. 2018); Downey v. Coal. Against Rape & Abuse, Inc., 143 F.Supp.2d 423, n. 5 449 (D.......

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