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
COLLEEN KOLLAR-KOTELLY, United States District Judge
Harry Jacobs Summers, Robert William Bonham, III, Anthony Herman, David Brett Kolker, Federal Election Commission, Washington, DC, for Defendant.
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
I. BACKGROUND
A. Factual Background
1. FECA‘s Administrative Fine System
The Federal Election Campaign Act of 1971, as amended and codified at
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.
In 1999, Congress amended
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).
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
Under FECA, as a political action committee, CVFC PAC, through its treasurer, must file periodic reports detailing its receipts and disbursements.
The Committee‘s report for the third calendar quarter (the October Quarterly Report) was due to the Commission on October 15, 2010. See
CVFC PAC‘s 12-Day Pre-General Election Report was due to the Commission on October 21, 2010. See
On December 13, 2010, Captain Joseph R. John, Chairman of CVFC PAC, called Mr. McAllister to alert him that Mr. Curry was leaving the Committee and to ask him how to change the treasurer. AF2199-AR022. Mr. McAllister explained that the Committee needed to submit a revised F1 Statement of Organization naming its new treasurer. Id. In a subsequent conversation on December 15, 2010, Mr. Curry called Mr. McAllister to ask about the process for resigning as treasurer. Id. Mr. McAllister stated that Mr. Curry would be considered the treasurer by the Commission until CVFC PAC submitted an F1 Statement of Organization naming a new treasurer. Id. On January 12, 2011, CVFC PAC filed an amended F1 Statement of Organization replacing Mr. Curry as treasurer with Plaintiff David Wiggs. AF2199-AR078-079.
In light of CVFC PAC‘s failure to timely file its reports, the Commission began administrative enforcement proceedings against the committee. On December 15, 2010, Defendant found Reason to Believe that CVFC PAC and Mr. Curry violated
In response to each of these determinations, Captain John sent letters to Defendant challenging the reason-to-believe findings by asserting that the conduct of CVFC PAC‘s former treasurer, Mr. Curry, made it impossible for CVFC PAC to timely file and that the PAC exercised its best efforts to file these reports as soon as practicable under the circumstances. AF2199-AR016-018; AF2312-AR030-032; AF2355-AR025-027.
On June 15 and 17, 2011, Dayna Brown, the FEC Reviewing Officer assigned to the proceedings against CVFC PAC, sent Plaintiffs the Recommendation of the Reviewing Officer regarding the reason-to-believe determinations for the late-filed reports. AF2199-AR044-046; AF2312-AR051-054.
On October 12, 2011, the FEC‘s Chief Compliance Officer and the Reviewing Officer made a Final Determination Recommendation to the Commission for CVFC PAC‘s three late filings. AF2312-AR106-108. This report recommended that the Commission find that CVFC PAC and its current treasurer David Wiggs, in his official capacity, violated
Plaintiffs subsequently sought reconsideration of the Commission‘s decision, arguing that the Commission did not provide them with a hearing and neglected to consider that Mr. Curry should be solely liable for the fine or that his actions should at least mitigate the penalty against Plaintiffs. AF2312-AR128-129. They also argued that the Commission‘s action raised various Constitutional concerns. Plaintiffs’ request for reconsideration was ultimately denied by the Commission on December 9, 2011. AF2312-AR139.
B. Procedural Background
On December 7, 2011, Plaintiffs sought review of the Commission‘s adverse determination pursuant to
II. LEGAL STANDARD
The parties have cross-moved for summary judgment under
The Administrative Procedure Act,
A reviewing court can set aside 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.”
An agency‘s decision may be arbitrary or capricious if any of the following apply: (i) its explanation runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue; (iii) the agency relied on factors which Congress did not intend the agency to consider; or (iv) the decision otherwise constitutes a clear error of judgment.
Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); accord Jicarilla Apache Nation v. U.S. Dep‘t of Interior, 613 F.3d 1112, 1118 (D.C.Cir.2010). This standard of review is highly deferential to the agency; a court need not find that the agency‘s decision is “the only reasonable one, or even that it is the result [the court] would have reached had the question arisen in the first instance in judicial proceedings.” Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422 (1983). Plaintiffs, as the party challenging the agency action, bear the burden of proof. Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C.Cir.2009) (citing City of Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C.Cir.2002)). In assessing the merits of Plaintiffs’ challenge, the Court begins with the presumption that the Commission‘s actions were valid. Grid Radio v. Fed. Commc‘ns Comm‘n, 278 F.3d 1314, 1322 (D.C.Cir.2002).
In addition, “[a]s a general matter, an agency‘s interpretation of the statute which that agency administers is entitled to Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C.Cir.2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). In the first step of the Chevron analysis, the Court reviews the statute de novo to determine whether or not the statute is ambiguous. Id. at 842-43. If the statute is ambiguous, the Court then must defer to the agency‘s interpretation of the statute unless it is “manifestly contrary to the statute.” Id. at 844. Thus, the inquiry for the Court under the second step of Chevron is whether the agency‘s interpretation of Congress’ instructions is reasonable. The Court‘s inquiry under the second step of Chevron “overlaps with [the Court‘s] inquiry under the arbitrary and capricious standard.” Am. Fed‘n of Gov‘t Employees, AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341, 345-46 (D.C.Cir.2007) “Whether a statute is unreasonably interpreted is close analytically to the issue whether [sic] an agency‘s actions under a statute are unreasonable.” Gen. Instrument Corp. v. Fed. Commc‘ns Comm‘n, 213 F.3d 724, 732 (D.C.Cir.2000).
III. DISCUSSION
Plaintiffs argue that the Commission‘s determination and corresponding imposition of a fine of $8,960 is invalid for a number of reasons. First, they argue that the Commission lacked the authority to fine CVFC PAC and its current treasurer because the former treasurer of CVFC PAC, Mr. Curry, is solely liable in his personal capacity for failing to file the reports in question. Pls.’ Mem. at 20-23. They next argue that, even if CVFC PAC and its current treasurer could be held liable, the Commission‘s failure to pursue Mr. Curry was arbitrary and capricious. Id. at 23-27. Plaintiffs also argue that the Commission‘s failure to mitigate the penalties against Plaintiffs due to Mr. Curry‘s actions was an abuse of discretion in violation of the APA. Id. at 31-33. Failing this, they contend that the regulation limiting the acceptable excuses for failure to file a disclosure report is unnecessarily narrow, and facially arbitrary and capricious in violation of the APA. Id. at 33-35. Plaintiffs also allege a variety of constitutional claims, contending that the fines imposed violate the Excessive Fines Clause of the Eighth Amendment, the Due Process Clause, and the First Amendment. Id. at 35-36. Plaintiffs also argue that they were entitled to an in-person hearing before the Commission prior to any adverse ruling. Id. at 36-42. Finally, Plaintiffs raise a related set of procedural objections to the Commission‘s voting practices at the reason-to-believe and final determination stages of these proceedings, arguing that these improper procedures render the Commission‘s actions against them invalid. Id. at 14-20. The Court addresses each of these objections to the Commission‘s actions below.
A. The Commission‘s Authority to Fine the Committee and its Current Treasurer.
Plaintiffs first argue that the Commission exceeded its statutory and regulatory authority in fining Plaintiffs for the failure to file the disclosure reports at issue. Pls.’ Mem. at 20-23. Instead, Plaintiffs contend that Mr. Curry, the Committee‘s treasurer at the time the three late reports were due, is solely responsible for the violations and any civil money penalties. Id. Plaintiffs claim that under the applicable statutory and regulatory regime, committee treasurers alone are required to file FECA reports and that “Congress did not impose reporting obligations on political committees themselves.” Id. at 20. As support for their position that Mr. Curry should be solely responsible for the late-filed reports, Plaintiffs point to various regulations and
This Court finds Plaintiffs’ argument that political committees and committee treasurers in their official capacity may not be held liable for late-filed reports unavailing. Under the text of FECA, political committees like CVFC PAC are clearly required to file periodic reports disclosing their receipts and disbursements. See
Pursuant to these provisions, when the Commission makes a determination in an enforcement matter under
Notwithstanding this text and practice, Plaintiffs argue that the treasurer responsible for the violations is personally and exclusively liable for the failure to file disclosure reports, and that no liability exists for the committee or its current treasurer in his official capacity. Pls.’ Mem. at 20-23. This argument strains credulity. Admittedly, Plaintiffs cite to a bevy of authorities stating that the Commission has the authority to pursue a treasurer in his personal capacity. See, e.g.,
Although neither party invokes Chevron, the Court concludes that the analysis supports the Commission here. The text of
This conclusion as to the reasonableness of the Commission‘s reading is unaffected by Plaintiff‘s broader policy argument that Committees should not be held responsible for the actions of their delinquent former treasurers. See Pls.’ Mem. at 27-31. Such a contention finds an answer in basic principles of the law of agency, which holds a principal liable for the acts of its agent if due to the principal‘s inadequate supervision. See Restatement (Third) of Agency § 7.03 (describing principal‘s responsibility for the actions of its agent). Here, the Committee appointed Curry, and had the responsibility to supervise him, as its agent. It cannot now escape its statutory responsibilities when it failed to ensure that he was carrying out his duties.3
In short, the Court cannot conclude that Congress intended to impose liability exclusively on treasurers in their personal capacity, to the exclusion of committees and current treasurers in their official capacity. Plaintiffs cite no authority for the proposition that delinquent, former treasurers should be held solely liable in their personal capacity for reporting violations to the exclusion of committees and their current treasurers. Moreover, the statutory text places the burden for reporting on committees and treasurers. And even if this text is ambiguous, the Commission‘s interpretation is reasonable and entitled to this Court‘s deference.
B. The Commission‘s Failure to Pursue Curry in His Personal Capacity.
Plaintiffs next argue that even if the committee and its current treasurer could be held liable, the agency‘s failure to take enforcement action against Mr. Curry was “arbitrary, capricious, and otherwise contrary to law.” Pls.’ Mem. at 23-27. As Plaintiffs note, the Commission has stated that “when information indicates that a treasurer has knowingly and willfully violated a provision of the Act or regulations, or has recklessly failed to fulfill duties specifically imposed on treasurers by the Act, or has intentionally deprived himself or herself of the operative facts giving rise to the violation, the Commission will consider the treasurer to have acted in a personal capacity and make findings (and pursue conciliation) accordingly.” Pls.’ Mem. at 23-24 (quoting 70 Fed.Reg. 3). Plaintiffs argue that Mr. Curry‘s failure to timely file the required reports was a knowing, willful, and/or reckless violation of the legal reporting requirements, rendering him personally liable for any fines imposed for the late reporting. They argue that the Commission acted arbitrarily and capriciously by not exercising its discretion to consider the personal liability of Curry.
As an initial matter, this suit is not the proper vehicle for Plaintiffs to challenge the Commission‘s failure to take action against Mr. Curry. While “[j]udicial review is available under FECA to complainants dissatisfied with the FEC‘s decisions not to investigate,” Nader v. Federal Election Comm‘n, 823 F.Supp.2d 53, 65 (D.D.C.2011), such review is pursuant to
Moreover, even if this suit were the proper vehicle to challenge the Commission‘s failure to pursue Mr. Curry in his personal capacity—which again, it is not—Plaintiffs’ claims still lack merit. “The FEC has broad discretionary power in determining whether to investigate a claim, and whether to pursue civil enforcement under [FECA].” Akins v. Federal Election Comm‘n, 736 F.Supp.2d 9, 21 (D.D.C.2010). See also Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting that the decision to not enforce “often involves a complicated balancing of a number of factors which are particularly within [the agency‘s] expertise” including “whether a violation has occurred” “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency‘s overall policies, and indeed, whether the agency has enough resources to undertake the action at all.“). As other courts of this district have recognized, the FEC enjoys “considerable prosecutorial discretion” and “its decisions to dismiss complaints are entitled to great deference . . . as long as it supplies reasonable grounds.” Nader, 823 F.Supp.2d at 65 (emphasis added).
Here, the Commission considered Mr. Curry‘s potential liability, and has supplied reasonable grounds for its failure to prosecute him in his personal capacity. Commission staff advised that a suit against Mr. Curry might be worth pursuing, but also noted that if the Commission wished to do so, it would need to bifurcate the matter and initiate a separate enforcement action to consider the issue. AF2312-AR107; AF2355-AR100. Moreover, the FEC‘s Office of General Counsel also indicated that it did not believe the facts warranted such a course of action, concluding that:
[T]he Committee‘s allegations against Mr. Curry are consistent with an individual who has resigned or is transitioning out of office. They note that Mr. Curry did not prevent the Committee from filing its reports or appointing a new treasurer and that his contacts with RAD asking questions about the reports were not consistent with a deliberate effort to prevent the timely filing of the reports.
AF2199-AR103; AF2312-AR108; AF2355-AR101. In light of the great deference accorded to the FEC‘s decisions not to prosecute, the Court, cannot conclude the agency abused its discretion in choosing not to pursue Mr. Curry in his personal capacity for willful or reckless failure to file reports. “The FEC is in a better position than [Plaintiffs] to evaluate the strength of [Plaintiffs‘] complaint, its own enforcement priorities, the difficulties
C. The Commission‘s Failure to Mitigate Plaintiffs’ Fines.
In a similar vein, Plaintiffs argue that the Commission either failed to exercise its discretion or abused its discretion in refusing to mitigate the fine against Plaintiffs due to the misconduct and personal liability of Mr. Curry. Pls.’ Mem. at 31-33. They argue that CVFC PAC and its current officials used their best efforts to file the required reports as soon as practicable following the malfeasance of its former treasurer. As support for this contention, Plaintiffs point to statements from Commission staff that “Mr. Curry‘s actions could be considered as possible mitigating factors in determining the civil penalty for the Committee‘s violation.” Pls.’ Mem. at 31 (quoting AF2355-AR100). As discussed,
The APA provides a cause of action for federal courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Plaintiffs, as the party challenging agency action, must prove that the Commission‘s decision not to mitigate was arbitrary and capricious. City of Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C.Cir.2002). As noted, an agency‘s decision may be arbitrary and capricious if: (i) its explanation runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise; (ii) the agency entirely failed to consider an important aspect of
Here, the Commission‘s decision not to mitigate Plaintiffs’ penalties easily satisfies this standard.
Plaintiffs next argue that if the Commission did not abuse its discretion in applying
Under the highly deferential standard required here, the Court cannot conclude that the best efforts regulation is arbitrary and capricious on its face. The Commission has put forth a reasonable explanation for the narrowness of the rule. Def.‘s Reply at 4. The regulation implements
D. Plaintiffs’ Eighth Amendment Claim.
Plaintiffs argue that the fines imposed are excessive in violation of the Eighth Amendment‘s Excessive Fines Clause, citing United States v. Bajakajian, 524 U.S. 321 (1998).5 Pls.’ Mem. at 35-36; Pls.’ Reply at 26-27. In Bajakajian, the Supreme Court, considering a fine imposed against an illegal exporter of currency, held that a punitive fine violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the offense that it is designed to punish. 524 U.S. at 334. Plaintiffs argue that the $8,960 total fine here is excessive in light of the fact that it would force CVFC PAC, with a bank balance of only $3,764.29 as of June 30, 2012, to shut down. Pls.’ Reply at 26. However, as this Court has noted, “ability to pay is not a component of the Eighth Amendment proportionality analysis.” Duckworth v. United States ex rel. Locke, 705 F.Supp.2d 30, 48 (D.D.C.2010). See also United States v. Emerson, 107 F.3d 77, 81 (1st Cir.1997) (“[T]he ‘touchstone’ is the value of the fine in relation to the particular offense, not the defendant‘s means.“). Moreover, as the D.C. Circuit has explained, in Bajakajian, “the Court was primarily concerned that the potential penalty for illegal export of currency would be indefinite and unlimited—and disproportionate to the offense—if the government could seize whatever amount of currency the unwitting “exporter” happened to be carrying when caught.” Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C.Cir.2002). “No such problem exists” in the case of a fixed statutory penalty where “the amount is neither indefinite nor unlimited.” Id.
Plaintiffs cite to Cox, 2004 WL 783435, at *13, as support for their claim that the fines at issue violate the Excessive Fines Clause. In Cox, the Northern District of Illinois, applying Seventh Circuit precedent, looked to four factors in determining whether a fine for late-filing a FECA disclosure report violated the Eighth Amendment: (1) Gravity of Plaintiffs’ Violations, (2) Plaintiffs’ Level of Culpability, (3) Harm Caused by Plaintiffs’ Violation, and (4) Comparison of Fine to Gravity of Plaintiffs’ Violations. Id. at *13-14. While the Court is skeptical that any of these factors favors Plaintiffs here, given the Cox court‘s conclusions that they did not favor a candidate raising an almost identical claim, it suffices to note that the Cox court concluded that “[b]ecause the fine assessed against Plaintiffs does not deviate from the Schedule [set out in the regulations], Plaintiffs’ unsupported complaints do not establish that the fine is unconstitutionally excessive so as to justify the extraordinary step of overruling the legislature in this instance.” Id. at *14. Accordingly, as this fine is neither indefinite nor unlimited, and is in compliance with statutory guidelines, the Court concludes that it does not offend the Excessive Fines Clause.
E. Plaintiffs’ First Amendment Claim.
Plaintiffs briefly argue that imposing $8,690 in fines would have a chilling effect on the exercise of CVFC PAC‘S political speech and associational rights under the First Amendment. Pls.’ Mem. at 35-36. They argue that finding Plaintiffs guilty of violating federal election laws stigmatizes CVFC PAC and its current treasurer as lawbreakers and would discourage donors from making contributions to CVFC PAC or otherwise volunteering or associating with the committee. Id. at 35. They also argue that the imposition of these fines would reduce the amount of funds available to the PAC to make campaign contributions and expenditures in the exercise of its First Amendment rights. Id. at 36. Plaintiffs cite to no case law for this point beyond stray citations to landmark campaign finance cases. See id. (citing Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Comm‘n, 558 U.S. 310 (2010)).
The Supreme Court has repeatedly and consistently upheld FECA‘s disclosure regime (including in both cases cited by Plaintiffs), making an implicit judgment that the fine provisions do not offend the First Amendment on any of the grounds asserted by Plaintiff. See Buckley v. Valeo, 424 U.S. 1, 64 (1976) (upholding FECA disclosure regime against constitutional challenge and noting that “[a]ny violation of these record-keeping and reporting provisions is punishable by a fine of not more than $1,000“); Citizens United, 558 U.S. at 371
F. The Commission‘s Failure to Provide Plaintiffs a Hearing.
Plaintiffs argue that the Commission acted unlawfully by making a final determination as to Plaintiffs’ liability without providing them an in-person hearing before the Commission. Pls.’ Mem. at 36-42. Plaintiffs argue that by denying them an in-person hearing, the Commission deprived them of the “opportunity to be heard” required by
As Defendant notes, the statutory phrase “opportunity to be heard” does not necessarily require a hearing. See, e.g.,
Under long-standing principles of administrative law, agencies are not required to adopt procedures beyond those
G. Plaintiffs’ Challenges to the Commission‘s Voting Procedure.
Finally, Plaintiffs argue that the FEC sanctions are invalid because the Commission allegedly did not follow proper procedure in imposing civil money penalties on the Plaintiffs. Pls.’ Mem. at 14-20. These claims are not properly before this Court because they have not been addressed by the agency. Def.‘s Mem. at 24-25. “It is well understood that ‘a reviewing court usurps an agency‘s function if it sets aside an administrative determination upon a ground not theretofore presented and deprives the agency of an opportunity to consider the matter, make its ruling, and state the reasons for its action.‘” Coburn v. McHugh, 679 F.3d 924, 931 (D.C.Cir.2012) (quoting Unemployment Comp. Comm‘n of Alaska v. Aragon, 329 U.S. 143, 155 (1946)). Moreover, review of these issues would require the Court to look to matters not contained in the administrative record before the agency. Plaintiffs have alleged defects in the ballots used by the Commissioners, and have appended these ostensibly faulty ballots as exhibits accompanying their motion for summary judgment. See Pls.’ Mem., Decl. of Dan Backer. These ballots are not contained in the administrative record provided to the Court. As the Supreme Court has repeatedly cautioned, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). “The task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (internal citations omitted). Here, the Court is extremely reluctant to rule on matters neither first presented to the agency nor contained in the administrative record submitted for review. In light of these considerations, these claims are not properly before this Court and will not be addressed.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendant‘s [22] Motion for Summary Judgment is GRANTED, and Plaintiffs’ [18] Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion.
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE