UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________

COMBAT VETERANS FOR CONGRESS 

POLITICAL ACTION COMMITTEE, et al.,

)

)

)

)

Plaintiffs, ) Civ. No. 1:11-cv-02168-CKK

)

v. )

) REPLY MEMORANDUM

FEDERAL ELECTION COMMISSION, )

)

SUPPORTING FEC MOTION

FOR SUMMARY JUDGMENT

Defendant. )

________________________________________)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Anthony Herman (D.C. Bar No. 424643)

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Special Counsel to the General Counsel

Harry J. Summers 

Assistant General Counsel 

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

Holly J. Baker

Steve N. Hajjar

Attorneys

September 14, 2012 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 1 of 31
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TABLE OF CONTENTS

Page

INTRODUCTION ..........................................................................................................1

ARGUMENT..................................................................................................................2

I. THE FEC PROPERLY FINED PLAINTIFFS FOR VIOLATING FECA

BY FILING THREE LATE DISCLOSURE REPORTS....................................2

A. Plaintiffs Have Conceded That the Late Reports Violated FECA 

and That the Requirements for the “Best Efforts” Defense Under 

the Commission’s Administrative Fines Regulations Were Not Met.....3

B. A Political Committee Is Legally Responsible for FECA Violations

Stemming from the Late Filing of the Committee’s Own Reports,

Contrary to Plaintiffs’ Claim That Liability Rests Solely with the 

Committee’s Agent, Its Treasurer...........................................................4

C. Plaintiffs’ Belated Claims That the Commission’s Administrative

Fine Regulations Must Directly Account for “Ability to Pay” 

Lack Merit...............................................................................................9

II. DESPITE PLAINTIFFS’ GROWING LIST OF TECHNICAL OBJECTIONS,

THE COMMISSION’S INTERNAL PROCEDURES ARE LAWFUL, AND 

ANY ERROR HERE WAS PLAINLY HARMLESS......................................13

A. The Commission’s Vote to Find Reason to Believe That Combat 

Veterans and Its Treasurer Violated FECA Was Proper ......................14

B. The Commission’s Final Determination That Combat Veterans and 

Its Treasurer Violated FECA Was Proper ............................................16

C. Plaintiffs Suffered No Prejudice from the Procedural Irregularities 

They Allege, and Any Remand to Correct Harmless Error Would 

Be Futile................................................................................................18

D. Plaintiffs’ Sunshine Act Claims Are Not Properly Raised and in 

Any Event Lack Merit ..........................................................................21

CONCLUSION.............................................................................................................25

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TABLE OF AUTHORITIES

Cases

AFGE, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985).........................................21

Bell Atl. v. Twombly, 550 U.S. 544 (2007) ...................................................................22

Braniff Master Exec. Council of Air Line Pilots Ass’n Int’l v. Civil Aeronautics Bd.,

693 F.2d 220 (D.C. Cir. 1982)..........................................................................24

Common Cause v. NRC, 674 F.2d 921 (D.C. Cir. 1982)..............................................23

*Cox for United States Senate Committee, Inc. v. FEC, No. 03-C-3715,

2004 WL 783435 (N.D. Ill. Jan. 22, 2004)................................................10, 11

Del Norte Cnty. v. United States, 732 F.2d 1462 (9th Cir. 1984).................................18

Donovan on Behalf of Anderson v. Stafford Constr. Co., 732 F.2d 954

(D.C. Cir. 1984) ................................................................................................20

Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72

(D.C. Cir. 1999) ................................................................................................21

FEC v. Club for Growth, Inc., 432 F. Supp. 2d 87 (D.D.C. 2006).........................20, 21

FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981)...........10, 11

*FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) .........................................14, 20

First Am. Discount Corp. v. C.F.T.C., 222 F.3d 1008 (D.C. Cir. 2000) ......................18

Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184 (D.D.C. 2008) ...................................23

Horning v. S.E.C., 570 F.3d 337 (D.C. Cir. 2009)........................................................19

Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. NLRB,

459 F.2d 1329 (D.C. Cir. 1972)........................................................................20

Jicarilla Apache Nation v. United States Dept. of Interior, 613 F.3d 1112 

(D.C. Cir. 2010) ................................................................................................19

Kelly v. Lahood, 840 F. Supp. 2d 293 (D.D.C. 2012)...................................................22

Milas v. United States, 42 Fed. Cl. 704 (1999).............................................................18

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 3 of 31
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Milner v. Department of the Navy, 131 S. Ct. 1259 (2011)..........................................24

Nader v. FEC, No. 10-989, 2012 WL 1216242 (D.D.C. 2012), 

appeal docketed, No. 12-5134 (D.C. Cir. April 24, 2012) ...............................20

Natl. Ass’n. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).............18

NLRB v. Am. Geri-Care, Inc., 697 F.2d 56 (2nd Cir. 1982).........................................21

Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290 (D.C. Cir. 2010)..................22

Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 

(D.C. Cir. 1980) ................................................................................................23

Pan Am v. Civil Aeronautics Board, 684 F.2d 31 (D.C. Cir. 1982) .............................24

PDK Labs, Inc. v. United States Drug Enforcement Admin., 362 F.3d 786

(D.C. Cir. 2004) ..........................................................................................18, 19

Shinseki v. Sanders, 506 U.S. 396 (2009).....................................................................19

Smith v. Office of Civilian Health & Med. Program for Uniformed Servs.,

97 F.3d 950 (7th Cir. 1996) ..............................................................................10

*Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 

435 U.S. 519 (1978)..........................................................................................15

Wagner v. United States, 365 F.3d 1358 (Fed. Cir. 2004)............................................18

Statutes and Regulations

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06 ......................................10

Federal Election Campaign Act, 2 U.S.C. §§ 431-57.....................................................1

Federal Election Campaign Act of 1971, Pub. L. No. 92-255 § 304..............................7

Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187 § 104 .......7

Government in the Sunshine Act (“Sunshine Act”), 5 U.S.C. § 552b..............21, 22, 23

2 U.S.C. § 431(4)(A).......................................................................................................5

2 U.S.C. §§ 431(8), (9) ...................................................................................................5

2 U.S.C. § 432(e) ............................................................................................................7

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 4 of 31
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2 U.S.C. § 432(i).............................................................................................................4

2 U.S.C. §§ 433(a), (b)(4)...............................................................................................6

2 U.S.C. §434(a) .....................................................................................................15, 16

2 U.S.C. § 434(a)(1)........................................................................................................7

*2 U.S.C. § 434(a)(4)..................................................................................................4, 6

2 U.S.C. § 434(a)(11)(C) ................................................................................................7

2 U.S.C. § 437c(e).........................................................................................................14

2 U.S.C. § 437g(a)(1)......................................................................................................9

2 U.S.C. § 437g(a)(2)....................................................................................................17

2 U.S.C. § 437g(a)(4)(C) ..............................................................................................11

2 U.S.C. § 437g(a)(4)(C)(i)(I).......................................................................................17

2 U.S.C. § 437g(a)(4)(C)(i)(II) .....................................................................................12

2 U.S.C. § 437g(a)(4)(C)(iii) ..........................................................................................4

2 U.S.C. § 441a(a)(1)....................................................................................................12

28 U.S.C. § 2462...........................................................................................................20

11 C.F.R. § 102.2(a)(1)(iv).............................................................................................6

11 C.F.R. § 102.2(a)(2)...................................................................................................6

 

11 C.F.R. § 104.14(d) .....................................................................................................7

11 C.F.R. § 104.18(g) .....................................................................................................7

11 C.F.R. § 111.35..........................................................................................................4

11 C.F.R. §§ 111.35(b)(3) and (c) ..................................................................................3

*11 C.F.R. § 111.43............................................................................................3, 10, 11

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Administrative Materials

FEC Campaign Guide for Nonconnected Committees (May 2008), 

available at http://www.fec.gov/pdf/nongui.pdf ................................................7

FEC Directive 52, available at http://www.fec.gov/directives/

directive_52.pdf (Sept. 8, 2008) .............................13, 14, 15, 16, 17, 21, 22, 24

FEC Guidebook for Complainants and Respondents on the FEC Enforcement Process 

(FEC May 2012), available at http://www.fec.gov/em/

respondent_guide.pdf..........................................................................................8

Memorandum to the Commission re: New Procedures for Successor Treasurers in 

Administrative Fines Matters (LRA #784) (Apr. 2, 2010) ..............................23

Proposed Statement of Policy Regarding Naming of Treasurers in Enforcement

Matters, 69 Fed. Reg. 4092 (Jan. 28, 2004)........................................................8

Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings

(“Treasurer Policy”), 70 Fed. Reg. 3 (Jan. 3, 2005) ...........................................8

Miscellaneous

Federal Rule of Civil Procedure 8(a)(2) .......................................................................22

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Plaintiffs Combat Veterans for Congress PAC (“Combat Veterans” or “Committee”) and 

its treasurer David H. Wiggs continue to try to evade their statutory responsibilities by shifting 

all blame for three late-filed campaign finance reports to the Committee’s former agent and by 

raising an ever-expanding set of meritless procedural objections, which now reach back to 

procedures adopted well before those reports were even due. But none of these diversions 

changes the simple fact that plaintiffs incurred $8,690 in administrative fines because of the 

Committee’s failure to file three campaign finance disclosure reports by the statutory deadlines 

around the time of the November 2010 general election. Indeed, plaintiffs again concede that 

their reports were filed late, and they do not dispute that the Federal Election Commission

(“Commission” or “FEC”) correctly calculated the fines under the regulatory formula. 

Instead, plaintiffs insist that the Committee’s former treasurer bears sole liability for the 

fines under the theory that the Committee and its treasurer are essentially one and the same. But 

as we explain below, that theory is pure fiction and contrary to the plain language of the Federal 

Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA”). A political committee is a legally 

defined entity under FECA and is distinct from its treasurer, one of its agents. 

To the extent any of plaintiffs’ allegations of procedural flaws are properly raised here, 

they also lack merit. And even if the Commission had erred in some minor technical aspect of 

its administrative procedures, any such error would plainly be harmless with regard to plaintiffs 

and any remand in this matter would be futile. There is no doubt that the Commission properly 

determined that plaintiffs were liable for the late reports, and plaintiffs received all the 

procedural rights they were due. Accordingly, the FEC’s motion for summary judgment should 

be granted and plaintiffs’ cross-motion should be denied. 

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ARGUMENT

I. THE FEC PROPERLY FINED PLAINTIFFS FOR VIOLATING FECA BY 

FILING THREE LATE DISCLOSURE REPORTS 

This case involves deferential judicial review of the Commission’s final administrative 

determinations and assessed fines for late-filing violations by Combat Veterans and its treasurer 

immediately before and after the November 2010 general election. There are no disputes 

regarding either the applicable legal standards or the relevant facts in this case; plaintiffs do not 

even respond to the portions of the Commission’s brief addressing those matters. (See FEC 

Memorandum in Support of Its Motion for Summary Judgment and in Opposition to Plaintiffs’ 

Motion for Summary Judgment (July 9, 2012) (Doc. 22-1) (“FEC Mem.”) at 1-15.) Plaintiffs 

also previously conceded all the factual and legal defenses which can be raised under the 

Commission’s streamlined procedures for administrative fine matters, and because plaintiffs’

additional arguments in this litigation were not presented during the administrative proceedings, 

many were waived. (FEC Mem. at 15-16, 24-25; see 11 C.F.R. § 111.35.) Furthermore, as the 

Commission has shown, plaintiffs’ new arguments are also without merit.1

 (FEC Mem.

at 25-35.) Thus, the final determinations and fines imposed by the Commission should be 

upheld.

 1 Notably, plaintiffs appear to have dropped their earlier argument (Plaintiffs’ 

Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (June 9, 2012) 

(Doc. 18-1) at 36-42) that the Commission’s determinations were unlawful because the 

Commission did not conduct in-person oral hearings in the three administrative fine matters. 

As we have shown (FEC Mem. at 32-35), there is no legal requirement that the Commission 

offer such a hearing. Plaintiffs’ sole mention of potential hearings in their most recent brief is a 

statement that, if a hearing had been conducted, plaintiffs could have clarified their previous 

arguments regarding treasurer liability. (Plaintiffs’ Memorandum in Further Support of Its 

Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary 

Judgment (Aug. 10, 2010) (Doc. 26) at 15.) That conclusory suggestion does not remotely 

support a due process claim.

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A. Plaintiffs Have Conceded That the Late Reports Violated FECA and That 

the Requirements for the “Best Efforts” Defense Under the Commission’s 

Administrative Fines Regulations Were Not Met

As previously discussed (FEC Mem. at 15-16), Combat Veterans conceded in all three 

administrative fine matters that the three reporting violations in fact occurred. Plaintiffs also 

conceded that the three administrative fines assessed by the Commission were correctly 

calculated using the penalty schedule, 11 C.F.R. § 111.43, and conceded that the Commission’s 

regulatory “best efforts” defense did not excuse the unlawful conduct here. (See FEC Mem. 

at 15-16 (quoting AF# 2199 at AR093, AF# 2312 at AR097 and AF# 2355 at AR090).) In fact, 

plaintiffs now describe the former treasurer’s failure to file the disclosure reports by the statutory 

deadlines as “reckless,” “intentional[],” and possibly “knowing” and “willful.” (Plaintiffs’ 

Memorandum in Further Support of Its Motion for Summary Judgment and in Opposition to 

Defendant’s Motion for Summary Judgment (Aug. 10, 2010) (Doc. 26) (“Pls.’ Opp.”) at 1, 2, 20, 

26, 29, 32, 33.) These concessions are fatal. The failure by the Committee and its agent to file 

the disclosure reports on time obviously cannot qualify for the best efforts exception, which 

requires a showing that, among other things, an event beyond the committee’s control prevented 

a timely filing.2

 11 C.F.R. §§ 111.35(b)(3) and (c).

Plaintiffs again attack the Commission’s “best efforts” regulation as being unreasonably 

narrow (Pls.’ Opp. at 31-33). But as the Commission explained (FEC Mem. at 16 n.25), that 

claim has been waived and plaintiffs cannot challenge the regulation on its face in a case brought 

 2 Plaintiffs now attempt to qualify their concessions in the administrative proceeding by 

stating that “of course the reports were filed late, but the Committee was not responsible for 

filing them and thus did not violate the law, its former treasurer did” (Pls.’ Opp. at 15 (emphasis 

in original)) — an argument we address infra section I.B. Plaintiffs continue to concede, 

however, that “if the former Treasurer were not liable in his personal capacity, but rather in some 

official capacity,” the Commission could “arguably extend the finding to the substitute 

treasurer.” (Pls.’ Opp. at 22.)

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under 2 U.S.C. § 437g(a)(4)(C)(iii). Moreover, a facial attack on the regulation appears nowhere 

in plaintiffs’ complaint. 

Even if plaintiffs could properly bring this claim, it is meritless. The regulation is a 

reasonable effort to balance the congressional mandate for efficient resolution of these routine 

late-filing matters with a recognition that on rare occasions, such as in the event of a natural 

disaster, it may be genuinely beyond a committee’s power to file a report on time. 

11 C.F.R. § 111.35. The regulation implements 2 U.S.C. § 432(i), which states that “[w]hen the

treasurer of a political committee shows that best efforts have been used to obtain, maintain, and 

submit the information required by this Act for the political committee, any report or any records 

of such committee shall be considered in compliance with this Act.” If negligence or 

recklessness — i.e., the kind of behavior plaintiffs claim the Committee’s former treasurer 

engaged in — were to qualify as “best efforts,” the exception would swallow the rule. Likewise, 

no reasonable definition of “best efforts” could ever extend to a committee’s simple failure to 

manage its treasurer, i.e., the committee’s own agent. Thus, even if plaintiffs had properly 

brought a challenge to the best efforts regulation, no other reasonable regulatory interpretation of 

2 U.S.C. § 432(i) could possibly excuse the Committee’s failure to ensure that its agent was 

competent to carry out the duties of a treasurer.

B. A Political Committee Is Legally Responsible for FECA Violations Stemming 

from the Late Filing of the Committee’s Own Reports, Contrary to Plaintiffs’ 

Claim That Liability Rests Solely with the Committee’s Agent, Its Treasurer

Contrary to plaintiffs’ claims (Pls.’ Opp. at 15-25), FECA imposes liability for the late 

filing of political committee reports directly on the committee, as both the language of the statute 

and common sense make clear, and as previously explained. (See FEC Mem. at 21-24; 2 U.S.C. 

§ 434(a)(4) (stating that “[a]ll political committees other than authorized committees of a 

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 10 of 31
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candidate shall file” certain reports, including those at issue here) (emphasis added).) Neither the 

Commission nor any court has ever interpreted FECA to impose liability for reporting violations 

solely on a treasurer and not on the committee, and there is no basis for this Court to do so.3

Plaintiffs’ arguments are based upon several novel and unsupported premises regarding 

the nature of political committees and the relationship between committees and their treasurers. 

Plaintiffs argue that the “treasurer is not an agent of the Committee,” and “not some mere 

functionary or agent” of the committee. (Pls.’ Opp. at 18-19.) Rather, in plaintiffs’ view, the 

treasurer is the “principal or master”; indeed, plaintiffs even go so far as to suggest that “there is 

no committee but for the treasurer.” (Id. at 18-22.) But these fatuous theories turn FECA upside 

down and lead plaintiffs to the erroneous conclusion that, because (in their view) treasurers are 

personally liable for reporting violations that occur during their tenure, the political committee

and any successor treasurers (like Combat Veterans’ current treasurer, Mr. Wiggs) are free from 

any liability. (Pls.’ Opp. at 19-20.)

First, contrary to plaintiffs’ view, FECA establishes political committees as specially 

defined, independent legal entities, not merely the alter ego of a treasurer. In particular, FECA

defines the term “political committee” to mean “any committee, club, association, or other group 

of persons” which either receives contributions or makes expenditures aggregating more than 

$1,000 during a calendar year. 2 U.S.C. § 431(4)(A); see also 2 U.S.C. §§ 431(8), (9) (defining 

“contribution” and “expenditure”). Thus, a political committee must be more than a single 

person, such as the treasurer; in fact, the primary actors in political committees often are persons 

 3 The Commission’s interpretation of FECA and its regulations, including the agency’s 

policy regarding when it is appropriate to name treasurers as personally liable, is entitled to 

deference. (See FEC Mem. at 13-15.)

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other than the treasurer, as may well be the case with Combat Veterans itself.

4

 

In addition, under FECA, it is the committee that must designate a treasurer and report 

any change in treasurer status. Specifically, each political committee is required to file a 

statement of organization (FEC Form 1) with the Commission, and the Act requires that this 

registration statement identify the individual who will serve as the committee’s treasurer. 

2 U.S.C. §§ 433(a), (b)(4).5 Thus, the political committee designates the treasurer, not the other 

way around. Recognizing this statutory requirement, it was Combat Veterans that filed its initial 

statement of organization in 2009 listing Mr. Curry as treasurer.6 Later, after Mr. Curry failed to 

file the Committee reports at issue, Combat Veterans’ counsel filed amended statements of 

organization naming himself as assistant treasurer in November 2010 and naming David Wiggs 

as successor treasurer in January 2011.7 Thus, the Act’s requirement that committees designate 

treasurers in writing on the committee’s own statement of organization, and Combat Veterans’

own practice of naming treasurers, also flatly refute plaintiffs’ claims.

Although 2 U.S.C. § 434(a)(4) clearly specifies that “[a]ll political committees other than 

 4 Political committees sometimes retain outside professionals to serve as treasurer and 

perform the recordkeeping and reporting tasks. For example, Combat Veterans’ lead counsel has 

served as the Committee’s assistant treasurer. Moreover, Combat Veterans has a president or 

chairman, Joseph R. John, who was designated as an “agent” of the committee on its initial 

statement of organization filed with the Commission on October 26, 2009. (Statement of 

Organization (Oct. 26, 2009) (FEC Exhibit (“Exh.”) 4 at 4).) From the administrative record and 

plaintiffs’ exhibits, it appears that Mr. John actively participated in the Committee’s activities, 

including discussions with the Committee’s then-treasurer, Mr. Curry, and others regarding the 

reports at issue. Thus, not only does FECA’s plain language establish as a matter of law that 

political committees have a distinct legal identify from their treasurers, but the facts in this case 

show that Combat Veterans was not the alter ego of Mr. Curry.

5 See also 11 C.F.R. § 102.2(a)(1)(iv). The Commission’s regulations require committees 

to report any change in treasurer status within ten days. 11 C.F.R. § 102.2(a)(2). 

6 (Statement of Organization (Oct. 26, 2009) (FEC Exh. 4).)

7 (Amended Statements of Organization (Nov. 8, 2010 and Jan. 12, 2011) (FEC Exhs. 5 

and 6, respectively.) 

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authorized committees of a candidate shall file” periodic reports of the committee’s receipts and 

disbursements, plaintiffs make the perplexing claim that the Commission cites this provision 

out of context. (Pls.’ Opp. at 17-18.) But, in fact, it is plaintiffs who rely upon stray language 

from the statute and elsewhere that does nothing to alter the basic statutory scheme in which 

committees and their treasurers are both responsible for filing reports. Plaintiffs cite no court 

decisions or legislative history to support their radical re-interpretation of FECA, in which the 

treasurer is the sole legally responsible actor. (Id.) The supposedly “clear and unambiguous” 

provisions upon which plaintiffs rely merely specify that it is the treasurer, a human being, who 

must of necessity review and file reports on behalf of the committee, which exists only as legal 

entity. See 2 U.S.C. §§ 434(a)(1), 434(a)(11)(C); 11 C.F.R. §§ 104.14(d), 104.18(g). The 

unremarkable fact that FECA recognizes that a human being must file the reports in no way 

implies that FECA assigns all liability to the treasurer and none to the committee. Indeed, the 

FEC urges political committees to name assistant treasurers (the role once played by plaintiffs’ 

counsel) to act when the treasurer is unavailable,8 further undermining plaintiffs’ claim that a 

committee is the mere alter ego of a single human being, i.e., the treasurer. 

Moreover, under the current statute, candidates themselves are deemed to be agents of 

their campaign committees. As originally enacted in 1971, the Act imposed reporting 

obligations upon both candidates for federal office and their authorized campaign committees.9 

In 1979, the Act was amended to deem the candidate to be an agent of his or her authorized 

principal campaign committee. 2 U.S.C. § 432(e).

10 Thus, all financial activity by a federal 

 8 FEC Campaign Guide for Nonconnected Committees (May 2008) at 4, available at

http://www.fec.gov/pdf/nongui.pdf.

9 Federal Election Campaign Act of 1971, Pub. L. No. 92-255 § 304. 

10 See Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187 § 104 

(deleting phrase “and each candidate for election to such office”).

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 13 of 31
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candidate is attributed to that candidate’s committee, and must be reported by the committee. 

Yet according to plaintiffs’ theory, if the treasurer is the “principal or master” (Pls.’ Opp. at 19) 

of the committee, then the candidate would essentially be an agent for the treasurer of the 

candidate’s own committee; again, this is a non-sequitur that would turn FECA upside down.

Recognizing the role committee treasurers play on behalf of political committees, the 

Commission now names treasurers as respondents in enforcement and administrative fine 

matters in their “official capacity” and substitutes “successor” treasurers when there is a change 

in treasurer. Statement of Policy Regarding Treasurers Subject To Enforcement Proceedings 

(“Treasurer Policy”), 70 Fed. Reg. 3 (Jan. 3, 2005). As previously described, the purpose of 

naming treasurers is to ensure that there is someone to receive notifications and perform remedial 

actions, such as amending reports and paying penalties. The Commission rarely seeks payments 

from the treasurer’s personal funds.11 (See FEC Mem. at 17-19.)

12 

Plaintiffs suggest (Pls.’ Opp. at 22-24) that the Commission erred by failing to consider 

Mr. Curry’s potential personal liability but, as the Commission has shown (FEC Mem. at 19), 

that is simply not correct. The Reviewing Officer provided a written analysis to the Commission 

that explicitly suggested that the Commission might consider Mr. Curry’s personal liability, but 

noted that if the Commission wished to do so, it would need to bifurcate the matter and refer 

 11 Plaintiffs cite a footnote from a draft of the Commission’s Treasurer Policy (Pls.’ Opp. 

at 17 (quoting Proposed Statement of Policy Regarding Naming of Treasurers in Enforcement 

Matters, 69 Fed. Reg. 4092, 4093 n.8 (Jan. 28, 2004)), but this statement merely explains that the 

treasurer could also be named in her personal capacity when the statute or regulations impose a 

legal obligation “specifically on committee treasurers and when a reasonable inference from the 

alleged violation is that the treasurer knew, or should have known, about the facts constituting a 

violation.” 69 Fed. Reg. at 4093.

12 See also Guidebook for Complainants and Respondents on the FEC Enforcement 

Process (FEC May 2012), available at http://www.fec.gov/em/respondent_guide.pdf. 

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 14 of 31
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Mr. Curry to the Office of General Counsel; a separate enforcement action, known as a “Matter 

Under Review,” would then be opened under 2 U.S.C. § 437g(a)(1) to consider the issue. The 

analysis also explained that the Office of General Counsel did not believe the facts warranted 

such a course of action. (See FEC Mem. at 19-21.) In any event, the Reviewing Officer’s 

ultimate written recommendation did not advocate pursuing Mr. Curry in his personal capacity. 

(Id.; see AF# 2199 at AR104-105, AF# 2312 at AR108, AF# 2355 at AR101). Rather, the 

Reviewing Officer recommended that the Commission determine that plaintiffs had violated 

FECA, and all six Commissioners voted to adopt the recommendation, effectively rejecting the 

option to pursue Mr. Curry in his personal capacity. Moreover, even if the FEC had pursued 

Mr. Curry in his personal capacity, that action would not have absolved plaintiffs from liability.

Despite FECA’s clear language and structure, plaintiffs invent a legal interpretation that 

would impose sole legal liability for reporting violations upon the person who was committee 

treasurer at the time of the violation and would write out of the statute a political committee’s 

independent obligation to file disclosure reports. That interpretation would also eliminate any 

incentive for committees to ensure that their own treasurers are competent, diligent, and honest.

In sum, in light of (1) FECA’s unambiguous definition of a “political committee” and the 

duties of such organizations, (2) the treasurer’s role in the reporting process, and (3) plaintiffs’ 

dispositive concessions that three of the Committee’s reports were filed late, there simply is no 

factual or legal basis for overturning the Commission’s final determinations that plaintiffs are 

responsible for the admitted FECA violations at issue here.

C. Plaintiffs’ Belated Claims That the Commission’s Administrative Fine 

Regulations Must Directly Account for “Ability to Pay” Lack Merit

Plaintiffs also criticize the size of the fines assessed for their three late reports and argue 

that the FEC administrative fine schedule’s lack of an “ability to pay” element violates the 

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Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, and the Constitution. (Pls.’ Opp. at 

26-31.) But plaintiffs challenge neither the fines’ calculation under the FEC’s established 

schedule, see 11 C.F.R. § 111.43, nor the facial validity of that regulation. Plaintiffs also ignore 

that these fines were assessed in three different matters (AF ## 2199, 2312 and 2355) and 

involved the late-filing of three different disclosure reports by Combat Veterans (the October 

Quarterly, and Pre-General and Post General Election Reports). The three fines total $8,690. 

Plaintiffs rely heavily (Pls.’ Opp. at 26-31) on the analysis in Cox for United 

States Senate Comm., Inc. v. FEC, No. 03-C-3715, 2004 WL 783435 (N.D. Ill. Jan. 22, 2004), 

but that decision supports the Commission’s position, not plaintiffs’. In Cox, the district court 

rejected a political committee’s challenge to an administrative fine and explained the 

governmental interest in disclosure, the harm to the public, and the relative seriousness of the 

violation. The court also upheld the “strict application” of the Commission’s fine schedule and a 

much larger fine than the ones at issue here: 

Plaintiffs, in effect, are asking this Court to exercise its own judgment and 

rehear Plaintiffs’ administrative appeal. This is precisely the type of secondguessing that this Court must avoid. See FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. [27, 37 (1981)]; Smith [v. Office of Civilian 

Health & Med. Program of the Uniformed Servs.], 97 F.3d 97 F.3d 950, 955

(7th Cir. 1996)]. Since the record is clear that the relevant factors were 

considered and the applicable regulations were strictly applied to Plaintiffs’ 

violations, the Court concludes that the decision to assess a civil fine of 

$22,150 is supported by a rational basis and does not indicate a clear error of 

judgment. In light of that conclusion, further analysis is neither required, nor 

permitted. 

Cox, 2004 WL 783435, at *5. Cox also rejected claims that the $22,150 fine was 

unconstitutionally excessive (see id. at *13-*14); in contrast, the three fines at issue here, ranging 

between $990 and $4,400, are only a fraction of the size of the $22,150 fine in Cox. Plaintiffs 

assert that Cox was wrongly decided (Pls.’ Opp. at 30), but they cite no contrary legal authority. 

Plaintiffs suggest (Pls.’ Opp. at 29-30) that their late reports are less important than the 

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11

violation at issue in Cox because Combat Veterans is not a candidate committee, but Congress 

plainly concluded that all political committees must file periodic disclosure reports by specified 

statutory deadlines. Moreover, although Cox involved a candidate committee, the reporting 

violations concerned loans the candidate had made to his own campaign. Although Congress 

requires that such loans be reported, they obviously do involve less potential for corruption than 

contributions from other individuals or interest groups. In any event, plaintiffs’ policy views

about which violations are more serious should be addressed to Congress, not this Court.

Plaintiffs also argue that the Commission’s administrative fine regulations should take 

into consideration plaintiffs’ ability to pay, claiming that, since Combat Veterans’ most recent 

disclosure report (July 2012) lists cash-on-hand of only $3,794, payment of the $8,690 in fines 

would force it to shut down, in violation of its constitutional rights. Plaintiffs are wrong. First, 

the Commission’s administrative fine schedule indirectly takes into account a committee’s 

resources because the amount of a committee’s financial activity (receipts and disbursements) is 

a significant factor in the regulatory formula. Here, as we have explained, the three fines were 

based in part on Combat Veterans’ financial activity on the three reports, falling into categories 

ranging from $25,000 to $99,999.99. See FEC Mem. at 10; 11 C.F.R. § 111.43. 

Second, and more fundamentally, as the court recognized in Cox, the FEC’s 

administrative fine schedule incorporates all the congressionally-required factors identified in 

2 U.S.C. § 437g(a)(4)(C). 2004 WL 783435, at *9. Plaintiffs do not dispute this portion of the 

Cox decision. (See Pls.’ Opp. at 27 (“FECA did not expressly provide ability to pay criteria in 

the Administrative Fine section of FECA”).) Indeed, plaintiffs concede that Congress directed 

the Commission to include only “such other factors as the Commission considers appropriate,” 

yet plaintiffs criticize the Commission for failing to add ability to pay during the agency’s 

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rulemakings. (Pls.’ Opp. at 28 (quoting 2 U.S.C. § 437g(a)(4)(C)(i)(II)).) In any event, 

plaintiffs’ complaint does not facially challenge the regulatory formula, which merits considerable deference, and plaintiffs have provided no basis for invalidating this rulemaking decision.

Finally, even if relevant, plaintiffs’ factual arguments regarding Combat Veterans’ ability 

to pay also lack merit. Plaintiffs suggest that many political committees are “very small 

operations that can ill afford to pay steep fines for filing late reports” and that large fines might 

discourage other committees from being organized (Pls.’ Opp. at 28), but those arguments do not 

apply to committees like Combat Veterans, which is well-established and has a documented 

history of successful financial activity. Indeed, according to the Committee’s disclosure reports 

on file with the Commission, the Committee raised more than $128,740 and spent more than 

$124,000 during the 2009-2010 election cycle, with receipts totaling $38,583 through the 

July 2010 Quarterly Report.13 Combat Veterans’ receipts during the current (2011-2012) 

election cycle appear to be matching this pace, with the July 2012 quarterly report (January 2011 

to July 2012) showing $38,555 in receipts.

14 Thus, Combat Veterans’ cash-on-hand appears to 

follow the rhythm of the election cycle. In any event, nonconnected political committees 

like Combat Veterans can accept an unlimited number of contributions from individuals and 

political action committees in amounts up to $5,000. 2 U.S.C. § 441a(a)(1). 

In sum, there is no basis to disturb either the FEC’s administrative determination that 

plaintiffs violated FECA by filing three reports late or the agency’s assessment of the fines.

 13 See Combat Veterans’ 2009 Year-End Report, Amended Detailed Summary Page of 

Receipts for 2009 Year-End Report, Amended July 2010 Quarterly Report and 2010 Year-End 

Report (FEC Exhs. 7-10, respectively).

14 See Combat Veterans’ 2011 Year-End Report and July 2012 Quarterly Report 

(FEC Exhs. 11 and 12, respectively). Plaintiffs’ alleged inability to pay is also belied by the 

Committee’s listing of about $19,000 in receipts and $19,000 in disbursements in its July 2012 

Quarterly Report — including about $8,000 for “catering for fundraiser” at a Tampa Bay hotel. 

FEC Exh. 12 at 2, 18-19.

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II. DESPITE PLAINTIFFS’ GROWING LIST OF TECHNICAL OBJECTIONS, 

THE COMMISSION’S INTERNAL PROCEDURES ARE LAWFUL, AND ANY

ERROR HERE WAS PLAINLY HARMLESS

Plaintiffs’ litany of complaints about alleged deficiencies in the Commission’s voting 

procedures cannot obscure the simple fact that all six Commissioners voted to determine that 

plaintiffs violated FECA by failing to file three election-related disclosure reports in a timely 

manner — after plaintiffs had exercised all the procedural rights to which they were entitled. In 

their Opposition, plaintiffs again complain about the FEC’s no-objection voting procedure for its 

preliminary reason-to-believe determinations (Pls.’ Opp. at 6-9), but they also: (1) claim that

Commission votes to approve staff recommendations do not constitute valid Commission 

determinations (id. at 3-4, 9-11), (2) object to the practice of Commissioners authorizing their 

respective staffs to perform the ministerial act of signing ballots on their behalf (id. at 12), and 

(3) speculate that the potential for outside employment must make Commissioners too busy to 

conduct FEC business properly (id. at 7). But plaintiffs do not stop with these flawed claims. 

They also question whether the Sunshine Act was properly followed when the Commission 

established certain voting procedures before these administrative fine matters arose (id. at 4-6), 

even though any such complaint is not properly raised here and is meritless in any case. 

Despite plaintiffs’ shotgun assault, the Commission’s procedures are lawful, and any 

minor technical error that plaintiffs may have identified would plainly be harmless. Plaintiffs do 

not attempt to show otherwise. They had the full benefit of all relevant procedures that FECA 

and the Commission’s regulations provide, and all six Commissioners voted to make final 

determinations that plaintiffs violated FECA. Thus, remand to the Commission to correct any 

perceived procedural errors would simply require the same Commissioners to go through the 

useless formality of casting the same votes again in a slightly different manner, a remedy that 

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would clearly be futile — because it would not change the outcome — and inappropriate. See, 

e.g., FEC v. Legi-Tech, Inc., 75 F.3d 704, 708-09 (D.C. Cir. 1996).

The Commission adopted streamlined voting procedures for certain routine, 

straightforward matters, such as assessing the late financial disclosure reports at issue in this 

case. These procedures are consistent with congressional intent to simplify and expedite the 

process for handling these matters. (See FEC Mem. at 28-32.) More generally, Congress

authorized the Commission to develop its own rules for conducting its activities, 2 U.S.C. 

§ 437c(e), and the Commission’s voting procedures as set forth in Directive 52 lawfully 

implement that authority. See FEC Directive 52 (Sept. 10, 2008) (FEC Exh. 1), also available at

http://www.fec.gov/directives/directive_52.pdf (rev. 9/10/08); FEC Mem. at 30.

A. The Commission’s Vote to Find Reason to Believe That Combat Veterans 

and Its Treasurer Violated FECA Was Proper

Plaintiffs’ various objections to the reason-to-believe findings, made prior to the 

Commission’s final determination, lack merit. Plaintiffs renew their formalistic claims (see

Pls.’ Opp. at 2-4, 6-9) that there were insufficient “affirmative votes” to find reason to believe 

that plaintiffs violated FECA, but as explained in the FEC’s opening brief (FEC Mem. at 28-32), 

the Commission’s procedures in handling these routine matters are lawful. 

The preliminary reason-to-believe stage in matters involving late-filed disclosure reports 

generally requires only a straightforward determination of when the report was due and when it 

was actually filed. (FEC Mem. at 29.) The Commission’s Reports Analysis Division (“RAD”) 

is responsible for setting forth such information for the Commissioners’ consideration, and RAD 

indisputably did so in the reports at issue here. (AF# 2199 at AR003; AF# 2312 at AR010; 

AF# 2355 at AR003; see FEC Mem. at 29.) At the reason-to-believe stage, staff 

recommendations are circulated to the Commission on a no-objection basis. Appended to each 

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ballot provided to the Commissioners is the recommendation on which the Commissioners are to 

vote; for example, the recommendation in this case was that the Commission “[f]ind reason to 

believe that [plaintiffs] . . . violated 2 U.S.C. 434(a).” (AF# 2199 at AR003; AF# 2312 at 

AR010; AF# 2355 at AR003; see FEC Mem. at 28-29.) A Commissioner who agrees with the 

recommendation may vote in favor of that recommendation by submitting a ballot marked “I do 

not object to the attached report” (see AF# 2199 at AR001; AF# 2312 at AR008; AF# 2355 at 

AR001) or by opting to submit no objection to the recommendation within a 24-hour period. 

(See FEC Mem. at 29.) Under Directive 52, adopted in 2008, either of these options constitutes 

an affirmative vote to approve the recommendation. See FEC Directive 52 at 3. Thus, the noobjection procedure followed in this case abides by Directive 52. As previously explained (FEC 

Mem. at 30), no provision of FECA specifies the precise method by which Commissioners are to 

approve reason-to-believe recommendations, and courts cannot require agencies to implement 

procedures beyond those required by statute. Agencies remain “free to fashion their own rules of 

procedure and to pursue methods of inquiry capable of permitting them to discharge their 

multitudinous duties.” See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 

435 U.S. 519, 542-543 (1978) (internal quotation marks and citation omitted).

15

Plaintiffs also claim (Pls.’ Opp. at 9-10) that there was no “finding” at the reason-tobelieve stage, evidently because the Commission did not actually state that it was “finding” 

 15 The Commission showed (FEC Mem. at 24-25) that plaintiffs had waived certain claims 

because they did not raise them during the administrative phase of these matters, but the 

Commission never claimed that plaintiffs were precluded from challenging the balloting, as 

plaintiffs now suggest (Pls.’ Opp. at 12-13). In fact, the Commission provided the ballots when 

plaintiffs requested them and consented to plaintiffs’ request to amend their complaint to add 

claims regarding the ballots. (Amended Petition for Review of FEC Determination and 

Complaint for Declaratory and Injunctive Relief (June 20, 2012) (Doc. 20).) At that time the 

Commission also directed plaintiffs’ attention to Directive 52, but plaintiffs did not incorporate 

their objections to the Directive in their amended complaint. (Id.)

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reason to believe, but this is another trivial, formalistic objection. RAD’s reports expressly 

recommended that the Commission “[f]ind reason to believe” that the Committee and its 

treasurer violated 2 U.S.C. §434(a), and RAD’s charts attached to its recommendations provided 

relevant details, such as the dates the Commission received the reports, how many days after the 

due date the reports were received, and the level of financial activity reported. And the 

Commission Secretary’s three signed certifications of the Commissioners’ votes track RAD’s 

recommendations. (AF# 2199 at AR008; AF# 2312 at AR020; AF# 2355 at AR014)

It is undisputed that the FEC timely notified plaintiffs of the reason-to-believe findings 

and provided the statutorily mandated opportunities for plaintiffs to respond. (AF# 2199 at 

AR012; AF# 2312 at AR029; AF# 2355 at AR024.) Plaintiffs took full advantage of their right 

to respond (AF# 2199 at AR013-14, 16-17; AF# 2312 at AR03031; AF# 2355 at AR025-26), 

and they do not argue here that any voting irregularity deprived them of any due process or other 

opportunity to be heard. Thus, even if the balloting procedure at the reason-to-believe stage 

were deficient — and it was not — any error would be harmless. See infra sections II.B, II.C.

B. The Commission’s Final Determination That Combat Veterans and Its 

Treasurer Violated FECA Was Proper

Plaintiffs now raise technical objections to the Commission’s final determination voting, 

but there is no dispute that the Commission made its final determination through a written “tally 

vote,” in which all six Commissioners submitted ballots. See FEC Directive 52 at 3. It is also 

undisputed that all six Commissioners voted affirmatively to make final determinations that 

plaintiffs had violated FECA as set forth in the FEC Reviewing Officer’s report. Plaintiffs do 

not contest the validity of the ballots of Commission Chair Hunter and Commissioner Weintraub. 

(Pls.’ Opp. at 11.) Plaintiffs do, however, contest the validity of the remaining four ballots.

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First, plaintiffs dispute the validity of the ballots cast by Commissioners Walther and 

Bauerly because those Commissioners directed their executive assistants to sign their names on 

their behalf (Pls.’ Opp. at 12). This objection is frivolous. Directive 52 explicitly provides that a 

Commissioner may direct another person to physically indicate a Commissioner’s decision on a 

ballot “in a purely ministerial capacity.”16 This procedure is not a “delegation” of the 

Commissioner’s vote, as plaintiffs claim, but a simple authorization to affix the Commissioner’s 

signature as directed. Id. The ballots of Commissioners Walther and Bauerly are proper 

affirmative votes.17 And those two votes, along with those of Commission Chair Hunter and 

Commissioner Weintraub, establish the four affirmative votes required by the statute for a final 

agency determination. See 2 U.S.C. §§ 437g(a)(2), 437g(a)(4)(C)(i)(I). 

Plaintiffs also challenge the validity of the last two ballots (Pls.’ Opp. at 11), but since 

FECA requires only four affirmative votes, any error associated with those ballots would be 

harmless. In any event, plaintiffs’ claims lack merit. Although Commissioner McGahn cast his 

ballot by email and his vote was thus not recorded on the usual ballot form, and Commissioner 

Petersen cast his ballot after the deadline, both Commissioners voted to make a final 

determination that plaintiffs had violated FECA as set out in the Reviewing Officer’s report. 

 16 Directive 52 provides (at 4-5): “A Commissioner may not delegate to any person his or 

her vote or decision-making authority. However, a Commissioner may delegate to a member of 

his or her staff the authority to affix the Commissioner’s name to a circulation vote provided the 

Commissioner has given instructions to the staff member regarding the matter being acted on and 

the staff member is acting in accordance with those instructions. In this way, the Commissioner 

is actually casting the vote and the staff member is signing in a purely ministerial capacity. In 

each instance in which a Commissioner’s staff member has acted as agent in casting the 

Commissioner’s vote, the Secretary shall maintain with the ballot any written authorization, 

instructions, or after-the-fact ratification provided by the Commissioner.”

17 Plaintiffs similarly attack the validity of the ballots cast at the reason-to-believe stage that 

were signed or marked by executive assistants, and for the same reason, that claim lacks merit.

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Finally, plaintiffs again contend (Pls.’ Opp. at 10-11) that the Commissioners’ formal 

approval or adoption of the Reviewing Officer’s recommendation does not itself constitute a 

“final determination,” evidently because plaintiffs believe the Commission must employ some 

special incantation to do so, such as, “We now make the following final determination.” But as 

previously demonstrated (FEC Mem. at 32 n.42), this argument is no more than a semantic 

game. Plaintiffs offer no support for the notion that a formal vote to approve a recommendation 

to make a determination does not constitute a Commission determination.

C. Plaintiffs Suffered No Prejudice from the Procedural Irregularities They 

Allege, and Any Remand to Correct Harmless Error Would Be Futile 

Even if plaintiffs had identified a genuine flaw in the Commission’s voting procedures, 

plaintiffs plainly suffered no prejudice, so any conceivable error was harmless. The Supreme 

Court has explained that “[i]n administrative law, as in federal civil and criminal litigation, there 

is a harmless error rule.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,

659-60 (2007) (citing PDK Labs, Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 

799 (D.C. Cir. 2004) (discussing section 706 of the APA)). “[T]he harmless error rule requires 

the party asserting error to demonstrate prejudice from the error.” First Am. Discount Corp. v. 

C.F.T.C., 222 F.3d 1008, 1015 (D.C. Cir. 2000) (internal quotation marks and citations omitted). 

And courts have consistently found that “[m]ere technical procedural error is insufficient to 

warrant reversing the agency’s administrative decision.” Milas v. United States, 42 Fed. Cl. 704, 

712 (1999); see Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (strict 

compliance with procedural requirements “is not required where the error is deemed harmless”); 

Del Norte Cnty. v. United States, 732 F.2d 1462, 1467 (9th Cir. 1984) (“insubstantial errors in an 

administrative proceeding that prejudice no one do not require administrative decisions to be set 

aside”) (citation omitted). As the Supreme Court has stated, the allegedly injured party bears the 

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burden of demonstrating harm rather than the agency having to prove that there was no harm. 

See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 

As previously explained (FEC Mem. at 31-32), plaintiffs here have failed to demonstrate 

any harm. Plaintiffs had full notice of the allegations against them and took full advantage of the 

procedures available to try to defend themselves. Plaintiffs admit that the three reports at issue 

were filed late, and the Commissioners voted on tally to make their final determination and 

impose the administrative fines. It is impossible to see how any alleged procedural error 

plaintiffs claim — the streamlined voting procedures at the reason-to-believe stage, the 

ministerial signing of some ballots by executive assistants at the direction of the Commissioners 

they serve, whether each vote took precisely the correct form, and whether the Commission used 

the proper words when it voted to approve clear staff recommendations — could have caused 

any harm whatsoever to plaintiffs. Indeed, plaintiffs make no real effort to articulate how any of 

these alleged irregularities caused them cognizable harm.18

Even if the Commission had followed plaintiffs’ preferred procedures, the end result 

would have been exactly the same. Thus, any errors in the Commission’s voting procedures 

caused plaintiffs no prejudice and fall within the parameters of harmless error as indicated by the 

cases the Commission cited in its opening brief, to which plaintiffs do not respond. See FEC 

Mem. at 31-32; Horning v. S.E.C., 570 F.3d 337, 347 (D.C. Cir. 2009) (holding that agency’s 

procedural error in adjudication against plaintiff was harmless because plaintiff “had notice from 

the outset of the nature of the charges against him” and could not “suggest a single thing he 

 18 The errors alleged here stand in stark contrast to instances in which error has been found 

to be harmful. These include occasions in which the government used an unannounced new 

method to calculate royalties, depriving a recipient of expected revenue, Jicarilla Apache Nation 

v. United States Dept. of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010), and an administrator’s 

interpretation of a statute contradicted prevailing agency precedent, PDK Labs, 362 F.3d at 799. 

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would have done differently” absent the error). See also FEC v. Club for Growth, Inc., 432 F. 

Supp. 2d 87, 90-91 (D.D.C. 2006) (finding harmless error when Commission failed to send 

notice letter within the statutorily mandated five days); accord, Nader v. FEC, No. 10-989, 2012 

WL 1216242, at *2-*3 (D.D.C. 2012), appeal docketed, No. 12-5134 (D.C. Cir. April 12, 2012).

Moreover, “[i]f the agency’s mistake did not affect the outcome, if it did not prejudice the 

petitioner, it would be senseless to vacate and remand for reconsideration.” PDK Labs, 362 F.3d 

at 799. Because plaintiffs do not even attempt to show that any of the errors they allege affected 

the result in this matter, a remand to the Commission would be “an unnecessary formality [since] 

the outcome is clear.” See Legi-Tech, 75 F.3d at 709. See also Donovan on Behalf of Anderson 

v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (“remand on this issue would serve 

no purpose [because] only one conclusion would be supportable.”); Int’l Union, United Auto., 

Aerospace & Agric. Implement Workers of Am. (UAW) v. NLRB, 459 F.2d 1329, 1347 (D.C. Cir. 

1972) (remand is unnecessary when “there is no longer anything to be gained”). In other words, 

even if the Court were to remand the case to the agency, that result would simply force the 

Commission to repeat the administrative fine process with no expectation that plaintiffs would 

avoid the same final determination and assessment of administrative fines.19

The D.C. Circuit’s decision in Legi-Tech is instructive. In that case the D.C. Circuit 

rejected Legi-Tech’s argument that a constitutional defect in the composition of the FEC at the 

time the Commission found “probable cause” to believe that Legi-Tech had violated FECA 

rendered the case invalid from the outset. (The Commission had reconstituted itself and ratified 

its prior determination, but it had not restarted the entire enforcement process.) The Court found 

it would futile to require the Commission to restart the matter from the beginning: “Even were 

 19 The statute of limitations applicable to these administrative fine matters is five years, so 

the limitations period will not run until late 2015. See 28 U.S.C. § 2462. 

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21

the Commission to return to square one . . . it is virtually inconceivable that its decision would 

differ in any way the second time from that which occurred the first time.” 75 F.3d at 707-708 

(citations omitted). A remand here would be equally futile because the very same 

Commissioners would be the ones to consider the matter a second time, and there is no evidence 

whatsoever that any of them would vote in a way that would alter the outcome. See id.; Club for 

Growth, Inc., 432 F. Supp. 2d at 93 (declining to remand because it would be futile, and rejecting 

claim that a showing of futility requires that the same Commissioners would vote on the matter 

again). See also, e.g., AFGE, AFL-CIO v. FLRA, 778 F.2d 850, 862 n.19 (D.C. Cir. 1985) 

(“remand would be [an] idle and useless formality ‘because there is not the slightest doubt that 

the Board would simply reaffirm its order.’”) (quoting NLRB v. Am. Geri-Care, Inc., 697 F.2d 

56, 64 (2nd Cir. 1982); Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 79 

(D.C. Cir. 1999) (“remand is necessary only when the reviewing court concludes that there is a 

significant chance that but for the error the agency might have reached a different result”) 

(internal quotation marks and citations omitted). 

D. Plaintiffs’ Sunshine Act Claims Are Not Properly Raised and in Any Event 

Lack Merit

Plaintiffs do not confine their procedural complaints to the votes taken in the 

administrative matters under review here, but now add claims under the Government in the 

Sunshine Act (“Sunshine Act”), 5 U.S.C. § 552b, regarding Commission decisions far removed 

from this case. Specifically, plaintiffs’ Opposition now challenges the Commission’s adoption 

of Directive 52 in 2008 and its internal clarification in April 2010 that its policy regarding the 

naming of treasurers in traditional enforcement matters would apply to administrative fine 

matters as well. (Pls.’ Opp. at 4-6, 16.) But these claims are not set forth in plaintiffs’ complaint 

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22

and are not properly raised here. In any event, the claims lack merit, and any error would plainly 

have caused no harm to plaintiffs in the administrative fine matters under review. 

For the first time in their Opposition (Pls.’ Opp. at 4-6), plaintiffs allege that the 

Commission’s adoption of Directive 52 and its clarification about the application of its Treasurer 

Policy violated the Sunshine Act. Plaintiffs never explain precisely how these Commission 

actions violated that statute, but in any case, these claims are beyond the scope of the plaintiffs’ 

complaint and not appropriately before the Court. “Federal Rule of Civil Procedure 8(a)(2) 

requires only a short and plain statement of the claim showing that the pleader is entitled to relief 

in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it 

rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). 

“The complaint and the evidence of a plaintiff . . . must be sufficient to put defendants on notice 

of any theory of recovery upon which the plaintiff is relying.” Kelly v. Lahood, 840 F. Supp. 2d 

293 (D.D.C. 2012) (internal quotation marks omitted) (quoting Overby v. Nat’l Ass’n of Letter 

Carriers, 595 F.3d 1290, 1297 (D.C. Cir. 2010)).

Neither plaintiffs’ amended complaint nor their initial summary judgment memorandum 

provided the Commission with notice that any of plaintiffs’ myriad theories of relief involve 

alleged violations of the Sunshine Act. Even if plaintiffs had not been aware of the FEC’s 

internal clarification of the Treasurer Policy when they filed their original complaint, the 

Commission directed plaintiffs to Directive 52 before they amended their complaint. While that 

amended complaint added a claim about the reason-to-believe ballots, it said nothing about the 

Sunshine Act, and plaintiffs have not sought to further amend their complaint. Having failed in 

their amended complaint to plead facts or seek relief based on the Sunshine Act, the Committee 

cannot properly advance such claims for the first time in their opposition to the Commission’s 

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23

motion for summary judgment. See Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193 (D.D.C. 

2008) (“Plaintiff must plead facts which support [plaintiff’s] claim”) (emphasis omitted).

Even if they were properly before the Court, plaintiffs’ Sunshine Act claims are utterly 

meritless. As previously explained (FEC Mem. at 18), since 2005 the Commission has explicitly 

named as a respondent in enforcement matters a committee’s current treasurer in his or her

official capacity. In April 2010, the Commission clarified that the Treasurer Policy also applied 

to administrative fine matters. See generally Memorandum to the Commission re: New 

Procedures for Successor Treasurers in Administrative Fines Matters (LRA # 784) (April 2, 

2010) (FEC Mem. Exh. 2); id. at 5 (“Successor treasurers will be substituted for predecessor

treasurers in administrative fines matters, just as they are substituted in other enforcement 

matters.”). Plaintiffs allege (Pls.’ Opp. at 16) that the FEC’s adoption of this procedure “in an 

undisclosed executive session” violated the Sunshine Act. This allegation has no basis in fact or 

law. The FEC did not adopt this clarification of its policy in a meeting but by circulation vote, 

which does not offend the Sunshine Act. See Pac. Legal Found. v. Council on Envtl. Quality,

636 F.2d 1259, 1266 (D.C. Cir. 1980) (“The Sunshine Act does not require an agency to hold 

meetings in order to function. . . . Congress intended to permit agencies to consider and act on 

agency business by circulating written proposals for sequential approval by individual agency 

members without formal meetings.”). Indeed, as plaintiffs recognize (Pls.’ Opp. at 9), the FEC 

can make decisions by notational voting in lieu of holding meetings regulated by the Sunshine 

Act. See Common Cause v. NRC, 674 F.2d 921, 935 n.42 (D.C. Cir. 1982) (“The Sunshine Act 

does not . . . prevent agencies from making decisions by sequential, notational voting rather than 

by gathering at a meeting for deliberation and decision.”). And plaintiffs make no effort to show 

that this clarification required public notice or that it would have changed the outcome here. In 

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fact, the Committee would be liable for its own late-filed reports before and after the 

clarification.

Even if the Commission had violated the Sunshine Act with respect to either Directive 52 

or its April 2010 extension of the Treasurer Policy to administrative fines matters, which it did 

not, no proper and available remedy would include invalidation of these prior Commission 

actions, much less setting aside the administrative fines in this case. The D.C. Circuit has 

explained that “release of transcripts, not invalidation of the agency’s substantive action, is the 

remedy generally appropriate for disregard of the Sunshine Act.” Braniff Master Exec. Council 

of Air Line Pilots Ass’n Int’l v. Civil Aeronautics Bd., 693 F.2d 220, 226 (D.C. Cir. 1982) 

(internal quotation marks omitted); see also Pan Am World Airlines, Inc. v. Civil Aeronautics 

Bd., 684 F.2d 31, 36 (D.C. Cir. 1982) (explaining that while Sunshine Act does not prohibit 

invalidation of agency action, it “strongly indicates a congressional policy that release of 

transcripts, not invalidation of the agency’s substantive action, shall be the normal remedy for 

Sunshine Act violations”).

20 And plaintiffs fail to show how any Sunshine Act violation in these 

 20 Although agency action might be set aside when the agency action is intentional, 

prejudicial to the party making the claim, and “of a serious nature,” see Pan Am, 684 F.2d at 

36-37, plaintiffs have not adduced anything remotely suggesting that the Commission’s alleged 

Sunshine Act violations were intentional or prejudiced plaintiffs. See also S. Rep. No. 94-354, 

at 34 (1975) (“It is expected that a court will reverse an agency action solely on [the ground that 

it was taken at an improperly close meeting] only in rare instances where the agency’s violation 

is intentional and repeated, and the public interest clearly lies in reversing the agency action.”). 

The same holds true for the Commission’s notification regarding the September 2008 meeting 

where it adopted Directive 52. Although plaintiffs suggest otherwise (Pls.’ Opp. at 6 n.2), the 

Commission’s notice prior to that meeting complied with the requirements of the Sunshine Act. 

On September 3, 2008, one week before the meeting, the Commission provided, as required by 

section § 552b(e)(1) of the Sunshine Act, notice of the time, place, and general subject matters of 

the meeting, and that it would be closed. And even if, as plaintiffs argue, this 2008 notification 

did not sufficiently describe the category of matters that were therein discussed pursuant to the 

Supreme Court’s decision, three years later, in Milner v. Department of the Navy, 131 S. Ct. 

1259 (2011), the Committee has offered nothing to show that the purportedly deficient 

notification was intentional, prejudiced plaintiffs, or amounted to more than harmless error.

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 30 of 31
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prior FEC actions could have affected the outcome of the administrative fines in this case, let 

alone constituted harmful error. See supra section II.C. The chain of events between the 

adoption of these FEC actions and plaintiffs’ administrative fines is far too attenuated and 

speculative to demonstrate that the alleged violations of the Sunshine Act had any meaningful 

connection to the FEC’s final determination that plaintiffs violated FECA.

CONCLUSION

Plaintiffs cannot avoid liability through a barrage of meritless procedural objections, 

which would be no more than harmless error even if correct, or by blaming the Committee’s own 

agent for the late filing of the Committee’s reports. The Commission’s motion for summary

judgment should be granted and plaintiffs’ motion for summary judgment should be denied.

Respectfully submitted,

Anthony Herman (D.C. Bar No. 424643)

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Special Counsel to the General Counsel

/s/ Harry J. Summers

Harry J. Summers 

Assistant General Counsel 

Robert W. Bonham III (D.C. Bar No. 397859)

Senior Attorney

Holly J. Baker

Steve N. Hajjar

Attorneys

September 14, 2012 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

Case 1:11-cv-02168-CKK Document 28 Filed 09/14/12 Page 31 of 31