Appeals court affirms dismissal of McChesney v. FEC (8:16-cv-00168 and 17-1179)

On August 15, 2018, the United States Court of Appeals for the Eighth Circuit affirmed the district court’s decision to dismiss the complaint in McChesney v. FEC. Plaintiffs Bart McLeay for US Senate, Inc. and Robert McChesney, in his official capacity as treasurer, had filed suit alleging that the final determination and penalties assessed against them under the Commission’s Administrative Fine Program (AFP) were invalid. Additionally, they alleged that the Commission did not follow proper procedures to extend the AFP penalty schedule that expired on December 31, 2013.

The plaintiffs did not dispute the facts of the violation leading to the $12,122 penalty. Instead, they argued that the Commission did not establish the applicable 2014 penalty schedule properly. Specifically, they alleged that the Commission did not review the penalty schedule, hold a public meeting, or comply with its own tally vote procedures. The district court rejected each of the plaintiff’s arguments and granted the Commission’s motion to dismiss. The plaintiffs appealed, re-asserting their claims and stating that the district court contravened the Administrative Procedures Act by dismissing their challenge without a complete administrative record from the Commission.

The appeals court found that the district court had made the proper decision based on the administrative record available. The court further stated that, contrary to the plaintiff’s assertions, the Commission was not required to conduct a new “evaluative review” of the AFP, and that the Commission’s adoption of the penalty schedule through notational tally vote was not a violation of the Sunshine Act. Finally, in response to the plaintiffs’ claim that each Commissioner was required to return a marked and signed paper ballot to authorize the extension, the court noted that “electronic signatures and electronic delivery were well known in the law before 2008 … And the Commission later made explicit that a ‘signed ballot’ includes a ballot submitted electronically or an email containing a commissioner’s vote.” The court thus affirmed the judgment of the district court.

Resources

• McChesney v FEC litigation page