Kuhn for Congress v. Federal Election Commission

Filing 47

ORDER adopting Report and Recommendations re 43 Report and Recommendation.; granting 27 Motion to Dismiss Signed by Honorable Patrick Michael Duffy on December 15, 2014.(lgra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Kuhn for Congress,

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Plaintiff,
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v.
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Federal Election Commission,
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Defendant.
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____________________________________)

C.A. No.: 2:13-cv-3337-PMD
ORDER

This matter is before the Court on Plaintiff’s Objections to the Report and
Recommendation (“R&R”) of the United States Magistrate Judge. Having reviewed the entire
record, including Plaintiff’s Objections, the Court finds the Magistrate Judge fairly and
accurately summarized the facts and applied the correct principles of law. Accordingly, the
Court adopts the R&R and fully incorporates it into this Order.
JURISDICTION
The Court has subject matter jurisdiction over this action pursuant to the Administrative
Procedure Act, 5 U.S.C. § 702, which provides for judicial review when a person claims to have
suffered a legal wrong as a result of agency action. Additionally, the Federal Election Campaign
Act, 52 U.S.C. §§ 30101–30146, under which the Federal Election Commission (“FEC”) fined
Plaintiff for its failure to timely file mandatory campaign expenditure reports, provides an
avenue for a litigant to request district court review of adverse determinations by the FEC, id.
§ 30109 (a)(4)(C)(iii).
BACKGROUND
This action arises out of Plaintiff’s challenge to the FEC’s November 5, 2013 decision to
fine Plaintiff $8,800 for the late filing of its April 2013 Quarterly Report. John R. Kuhn, a

licensed attorney who represents Plaintiff Kuhn for Congress (“the Campaign”) in this action,
was a candidate in the Republican Party’s 2013 special election primary for the South Carolina
First District House of Representatives seat. Mr. Kuhn lost the special election held on March
19, 2013.
Under 52 U.S.C. § 30104(a)(4)(A), the Campaign’s April 2013 quarterly report was due
on April 15, 2013. The Campaign failed to timely file the report. On May 3, 2013, the FEC’s
Assistant Staff Director sent a letter via email to the Campaign’s email address, advising it that
the report had not been filed by the statutory deadline and that civil penalties may be assessed for
failure to timely file the report. Thereafter, the FEC initiated an administrative-fines proceeding
against the Campaign for the unfiled report. The FEC ultimately voted that the Campaign had
violated 52 U.S.C. § 30104(a) by failing to file the required report. Lacking reported campaign
activity, the FEC estimated Plaintiff’s fine according to an established formula that considered
the Campaign’s total receipts and disbursements for the period covered by the unfiled report in
determining an adequate fine. The FEC calculated that the appropriate penalty for the reporting
violation, based on the formula, was $8,800. On July 24, 2013, the FEC notified the Campaign
and its treasurer, Amanda Michelle Perry, by letter of its decision and explained the process for
challenging the Commission’s decision. After receiving the notification regarding the FEC’s
determination, Mr. Kuhn contacted FEC staff but the Campaign declined to submit an
administrative challenge to the Commission’s determination or civil penalty calculation. On
August 20, 2013, the Campaign filed the report, and reported campaign activity in excess of the
amount estimated by the FEC.1

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1

The fact that the Commission’s regulatory formula underestimated the level of activity did not alter the fine
imposed.

2

On December 2, 2013, Plaintiff filed its original Complaint in this Court. Plaintiff was
ordered to bring its case into proper form, and thereafter filed a Supplement, captioned “Petition
for Review” (“the Complaint”), on January 6, 2014. On March 28, 2014, the Defendant filed its
Motion to Dismiss. Plaintiff filed his Response on April 11, 2014. Defendant filed its Reply on
April 21, 2014.2 On October 8, 2014, the Magistrate Judge recommended that the Defendant’s
motion be granted.

Plaintiff timely filed Objections to the R&R.

The R&R is ripe for

consideration.
STANDARD OF REVIEW
The Magistrate Judge made his review in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to the Court. It
has no presumptive weight, and the responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties are allowed to make a
written objection to a Magistrate Judge’s report within fourteen days after being served a copy of
the report. 28 U.S.C. § 636(b)(1). From the objections, the Court reviews de novo those
portions of the R&R that have been specifically objected to, and the Court is allowed to accept,
reject, or modify the R&R in whole or in part. Id. Any written objection must specifically
identify both the portion of the R&R to which the objection is made and the basis for the
objection. Id. Additionally, the Court may recommit the matter to the Magistrate Judge with
instructions. Id.

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2

Plaintiff filed a Sur-Reply on July 29, 2014. Under the Local Civil Rules, “[r]eplies to responses are discouraged.”
Local Civ. Rule 7.07 (D.S.C.). Moreover, neither the Federal Rules of Civil Procedure nor the Local Civil Rules
permit the filing of a sur-reply without leave of the Court. In the present case, Plaintiff did not seek or obtain leave
to file a sur-reply. Accordingly, Plaintiff’s Sur-Reply is not properly before the Court and will not be considered in
ruling on the R&R. Nevertheless, having reviewed the Sur-Reply, the Court concludes that the arguments contained
therein would not alter the Court’s analysis or determination of the legal issues presently before the Court.

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ANALYSIS
A district court reviews specific objections to an R&R under a de novo standard. 28
U.S.C. § 636(b). If a party makes only general objections, de novo review is not required.
Durkee v. C.H. Robinson Worldwide, Inc., 765 F. Supp. 2d 742, 747 (W.D. N.C. 2011), aff'd,
502 Fed. Appx. 326 (4th Cir. 2013). “Section 636(b)(1) does not countenance a form of
generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a
party’s objection to a magistrate judge’s report be specific and particularized, as the statute
directs the district court to review only those portions of the report or specified proposed findings
or recommendations to which objection is made.” United States v. Midgette, 478 F.3d 616, 621
(4th Cir. 2007).

Similarly, merely reiterating the same arguments made in the pleading

submitted to the Magistrate Judge does not warrant de novo review. Id.; Veney v. Astrue, 539 F.
Supp. 2d 841, 846 (W.D. Va. 2008). “Allowing a litigant to obtain de novo review of [the] entire
case by merely reformatting an earlier brief as an objection ‘mak[es] the initial reference to the
magistrate useless.’” Id.
In its Objections to the R&R, Plaintiff merely restates the arguments originally presented
in the Complaint and in its Sur-Reply. In its Objections, which number fourteen pages, Plaintiff
does not cite a single case in support of its main arguments, namely, that the FEC’s method of
notification via email violates due process and that the FEC’s method of calculation of the fine is
arbitrary. Although the party challenging the agency action bears the burden of proof to show it
is entitled to relief, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 874–75 (1990), the Court
conducted an independent inquiry of the relevant case law. Upon the Court’s own inquiry, there
is no case law which supports Plaintiff’s contention that the FEC’s actions were “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law,” the standard set

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out by Virginia Agricultural Growers Ass’n, Inc. v. Donovan, 774 F.2d 89, 93 (4th Cir. 1985)
(quoting 5 U.S.C. § 706(2)(A),(C)), which the district court is bound to apply. Ultimately, after
a comprehensive review of the record and of the applicable law, the Court finds that the
Magistrate Judge fairly and accurately summarized the facts and applied the correct principles of
law and that Plaintiff’s Objections are without merit.
CONCLUSION
Therefore, for the foregoing reasons, the Court ADOPTS the Magistrate Judge’s R&R.
Accordingly, it is ORDERED that Defendant’s Motion to Dismiss is GRANTED.
AND IT IS SO ORDERED.

December 15, 2014
Charleston, South Carolina

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