1 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________ 

 ) 

COMBAT VETERANS FOR CONGRESS ) 

POLITICAL ACTION COMMITTEE AND ) 

DAVID H. WIGGS, TREASURER ) 

 ) 

 Appellants, ) No. 13-5358 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Appellee. ) 

______________________________________ ) 

APPELLANTS’ OPPOSITION TO FEDERAL ELECTION 

COMMISSION’S MOTION FOR SUMMARY AFFIRMANCE 

Appellants, Combat Veterans for Congress Political Action Committee and 

David H. Wiggs, Treasurer (“CVFC”) oppose the Federal Election Commission’s 

(“FEC”) Motion for Summary Affirmance. The FEC has failed to meet its heavy 

burden to demonstrate that this case is appropriate for summary disposition and no 

benefit will be gained from further briefing and argument of the issues presented. 

Thus, the motion should be denied and the case calendared for the merits panel. 

STANDARDS OF REVIEW 

This Court’s review of the district court’s ruling is de novo. Moreover, 

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[i]n a case like the instant one, in which the District Court reviewed an 

agency action under the APA, we review the administrative action directly, 

according no particular deference to the judgment of the District Court. 

Holland v. Nat'l Mining Ass'n, 309 F.3d 808, 814, (D.C. Cir. 2002) (citations 

omitted). In other words, we "do not defer to a district court's review of an 

agency [action] any more than the Supreme Court defers to a court of 

appeals' review of such a decision." Novicki v. Cook, 946 F.2d 938, 941 

(D.C. Cir. 1991) (citation omitted). 

Coburn v. McHugh, 679 F.3d 924, 928 (D.C Cir. 2012). 

The standard for granting a motion for summary disposition and foreclosing 

plenary review of CVFC’s appeal presents a high hurdle for the FEC to overcome. 

As this Court made clear in Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 

(D.C. Cir. 1987): 

A party seeking summary disposition bears the heavy burden of 

establishing that the merits of his case are so clear that expedited action 

is justified. . . . To summarily affirm an order of the district court, this 

court must conclude that no benefit will be gained from further briefing 

and argument of the issues presented. . . . In addition, this court is now 

obligated to view the record and the inferences to be drawn therefrom 

"in the light most favorable to [CVFC]." (citing United States v. 

Diebold, Inc., 369 U.S. 654, 655 (1962). 

Id. at 298 (citation omitted). Moreover, as this Court has stated, “‘[p]arties should 

avoid requesting summary disposition of issues of first impression for the Court,’ 

D.C. Circuit Handbook of Practice and Internal Procedures 35 (2007).” Patricia 

Cronauer v. United States, 2007 U.S. App. LEXIS 7368 *1 (D.C. Cir. Mar. 26, 

2007) (denying United States motion for summary affirmance). 

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ARGUMENT 

I. THE DISTRICT COURT ERRED IN NOT REACHING THE MERITS 

OF CVFC’S CHALLENGE TO FEC’S VOTING PROCEDURES 

As noted, in their Amended Petition for Review of Federal Election 

Commission Determination and Complaint for Declaratory and Injunctive Relief 

and as extensively briefed below by the parties, CVFC challenged the validity of 

the FEC’s enforcement action alleging that the FEC failed to comply with the 

statutory requirements that the Commissioners’ findings at both the “reason to 

believe” stage and the final determination stage that a violation occurred must be 

made “by an affirmative vote of 4 of its members.” See 2 U.S.C. 437g(a)(2); 11 

C.F.R. 111.32, 111.37(a). Amended Pet. For Review, Count I, at 15; Pls.’ Mem. at 

14-20; Def’s Mem. at 24-25; Pls’ Opp. Mem. at 2-12. 

The district court improperly declined to consider the merits of CVFC’s 

challenge that the affirmative vote of four Commissioners was lacking, and the 

agency action was thus a nullity, on the basis that 1) CVFC did not first raise the 

issue with the FEC at the administrative level, and 2) the actual ballots which 

evidence the improper voting procedure were not part of the administrative record 

filed by the agency, and thus, should not be considered by the court. (Mem. Op. at 

29-30.) The FEC reiterates those two reasons in its Motion for Summary 

Affirmance at 15-16. The district court and the FEC are wrong on both counts. 

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A. CVFC Was Not Required To First Present The FEC’s Defective 

Voting Procedure To The Commission 

The district court declined to adjudicate the voting procedure claim citing 

the general rule that the court should not “usurp[] 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 actions.’” (Mem. Op. at 29 (quoting 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)).) 

First, Appellants had no reason to raise the unlawful voting issue before the 

FEC. The December 21, 2010 letter sent by the FEC to the treasurer notifying 

him about the reason to believe finding simply stated that “the FEC found that 

there is reason to believe (“RTB”) that” there was a violation of 2 U.S.C. 434(a). 

There was no indication of the actual vote tally. Once this suit was filed and the 

FEC submitted the Administrative Record, the formal Certifications by the 

Secretary and Clerk of the Commission were also submitted attesting to the votes 

cast by the Commissioners at the reason to believe stage and the final 

determination stage. The Certification by the Commission Secretary certified that 

the FEC on December 15, 2010, “[d]ecided by a vote of 6-0 to: (1) find reason to 

believe that COMBAT VETERANS FOR CONGRESS PAC, and CURRY, 

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MICHAEL MR. as treasurer violated 2 U.S.C. § 434(a) and make a preliminary 

determination that the civil money penalty would be the amount indicated on the 

report. . . .Commissioners Bauerly, Hunter, McGahn II, Peterson, Walther, and 

Weintraub voted affirmatively for the decision.” AF#2199 – AR008 (emphasis 

added). Similar Certifications were executed for the final determination stage. 

AF#2199 – AR114. From all appearances and representations, it would seem that 

the FEC complied with the statutory requirement that any enforcement action at 

both the “reason to believe” stage and the “final determination” stage must be 

approved by at least “four affirmative votes.” 

However, it was only after examining the Administrative Record that 

included only the “blank” voting sheets used by the Commissioners as part of the 

record did CVFC suspect that the Certifications of the votes did not accurately 

reflect the actual “affirmative votes” cast by the Commissioners. Accordingly, 

counsel for CVFC pressed the FEC attorneys to disclose the actual ballots [see 

Decl. of Dan Backer attached hereto as Exhibit 1] which was received two days 

before the filing of their Motion for Summary Judgment. Shortly thereafter, CVFC 

filed an Amended Petition for Review and Complaint on June 19, 2012 with the 

consent of the Commission raising an additional and dispositive claim that the 

entire agency enforcement action was null and void since the Commissioners did 

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not comply with the statute’s voting procedures. Under these circumstances, 

CVFC can hardly be faulted for not raising the voting issue at the agency level 

since they had no reason to believe the voting was questionable at the time. 

As the evidence before the district court demonstrated, the FEC considers a 

Commissioner as casting an “affirmative vote” at the reason to believe stage when 

that Commissioner does not “cast” any vote at all. According to the unlawful 

voting procedures described in the questionably promulgated FEC Directive 52 

which the FEC relied upon below, a Commissioner need do nothing at all for 24 

hours after being sent a staff memo to have this nonaction count as casting an 

“affirmative vote.” Moreover, with respect to the votes that were actually cast at 

the final determination stage, challenges were raised by CVFC in the district court 

to the validity of four of the six votes submitted past the FEC self-imposed 

deadline for voting and/or being signed by someone other than the Commissioner, 

the latter issue raising factual evidence which the FEC refused to provide to CVFC 

and which CVFC argued was a material fact in dispute precluding summary 

judgment. See Pls’ Opp. Mem. at 7 n.3; Decl. Dan Backer, Exhibit 1. 

Assuming there were at least four valid “affirmative votes,” CVFC further 

challenged the legal sufficiency of the action resulting from any vote, since the 

Commissioners did not actually make or issue any final determination or impose 

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any fine, but at best, did not object to a staff recommendation that they do so. See

Pls’ Mem. 16-20. Thus, this claim raises both factual and legal issues that are 

unresolved, and thus, is not suitable for summary disposition. 

Second, even if CVFC had access to the voting ballots or suspected that the 

voting procedures did not comply with the statutory requirement at the 

administrative level, bringing that issue before the agency would have been a futile 

exercise. As evidenced by the FEC’s submissions on the merits in the district 

court, the FEC maintains that its notation or tally vote procedures are in full 

compliance with the statute and regulations, a position which was vigorously 

disputed and briefed by CFVC in the district court. 

In that regard, the district court and FEC’s reliance on Coburn for the 

proposition that the court cannot consider the merits of this issue is misplaced. In 

Coburn, the court upheld that portion of the District Court’s decision not to 

consider certain of the plaintiff’s arguments regarding his involuntary separation 

from the United States Army, on the ground that these claims had not been raised 

during plaintiff’s initial challenge of the separation decision. Coburn v. McHugh, 

679 F.3d at 930-31. In the instant case, however, the claim at issue does not relate 

to the underlying facts that were the basis for the FEC’s staff investigation, but 

instead goes to the validity of whether a decision itself was lawful. 

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The general rule of exhaustion of administrative remedies does not apply in 

situation such as this where the agency has already predetermined the issue, and 

hence, it would have been futile to challenge the FEC’s voting procedures before 

the agency. See McCarthy v. Madigan, 503 U.S. 140, 148 (1992). Exhaustion is 

also not required where, as here, “the challenge is to the adequacy of the agency 

procedure itself. . . .” Id.

B. The District Court Erred In Concluding That It Could Not Review 

The Actual Ballots Used By The FEC Because The FEC Failed To 

Submit Them As Part of the Administrative Record 

The district court’s related holding that it could not reach the merits of 

CVFC’s voting procedure claim because the voting ballots themselves were not 

part of the administrative record is clearly erroneous. The general rule, that a 

reviewing court should focus on the administrative record made at the agency, is 

only applicable where the material sought to be presented for the first time to the 

reviewing court by an aggrieved party relates to the underlying facts or dispute that 

was before the agency. That is why, for example, the district court in Cunningham 

v. FEC, 2002 U.S. Dist. LEXIS 20935 (S.D. Ind. Oct. 28, 2002), relied upon by the 

FEC below and which also involves the assessment of a fine for filing a campaign 

finance report late, correctly refused to consider an Affidavit by the candidate 

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swearing the disclosure report was timely filed. That Affidavit was signed more 

than a year after the FEC’s decision and the filing of his lawsuit. Id. at *15 n.3. 

The voting ballots and documents submitted by CVFC were documents 

generated by the agency itself during the enforcement proceedings. Those voting 

ballots do not relate to the circumstances of or factual defenses to the late filing of 

the campaign finance reports; rather, they go to the validity of the votes by the 

Commissioners. In short, the FEC is in no position to complain that they are 

prejudiced by the submission of the actual ballots they used. 

 Finally, it should be noted that CVFC filed a combined Petition for Review 

of the FEC’s enforcement action as provided for by 2 U.S.C. 437g(a)(4)(C)(iii) 

and Complaint for Declaratory and Injunctive Relief under 28 U.S.C. 1331, 2201, 

and 5 U.S.C. 701-706. Thus, the claim challenging the validity and sufficiency of 

the votes and the voting ballots submitted as evidence in support of that claim, can 

also be considered as a separate challenge to agency action under 28 U.S.C. 1331 

apart from the typical APA review of the merits of the underlying administrative 

decision and its accompanying administrative record as well as apart from the 

specific judicial review provisions of FEC enforcement actions provided by statute. 

In short, the district court erred in failing to consider the merits of CVFC’s 

challenge to the voting procedure and the evidence supplied supporting that 

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challenge. Moreover, since this voting issue is one of “first impression” as even 

the FEC noted below, it is not suitable for summary disposition. See Cronauer v. 

United States, supra. 

II. THE DISTRICT COURT ERRED IN REJECTING CVFC’S CLAIMS 

THAT THE FEC FAILED TO EXERCISE OR ABUSED ITS 

DISCRETION OR ABUSED IT IN NOT MITIGATING THE FINES 

IMPOSED AND THE “BEST EFFORTS” REGULATION WAS 

ARBITRARY AND CAPRICIOUS 

As a preliminary matter, if this Court denies the FEC’s Motion for Summary 

Affirmance with respect to CVFC’s challenge to the voting procedures, the Court 

need not address the FEC’s other arguments at this time but may properly defer 

such resolution to the briefing and argument in this case. That is so because if the 

Court were to then agree with the CVFC’s position, the case would be remanded to 

the district court to reach the merits of CVFC’s voting challenge. If, in turn, the 

district court on remand agreed with CVFC on the merits, the FEC’s final 

determination would be vacated and remanded to the FEC. 

On the other hand, if the Court were to agree with the FEC’s argument that 

the merits of the voting issue should not be adjudicated, then and only then would 

this Court need to consider the other arguments presented by the FEC in its motion. 

But even in that case, CVFC submits that the FEC has not carried its “heavy 

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burden” to show that the merits are “so clear” that briefing and argument would 

have “no benefit” in resolving the issues. Taxpayers Watchdog, 819 F.2d at 298. 

A. The Mitigation and “Best Efforts” Arguments Were Not Waived 

The FEC argues preliminarily that although the district court did reach the 

merits of CVFC’s claim with respect to the mitigation of the fines and the “best 

efforts” regulation, those claims were waived. FEC Motion at 14 n.5. That 

argument was ignored by the court below and should be rejected by this Court. 

 CVFC has always acknowledged that the wilful and reckless failure of the 

original treasurer, acting in his personal capacity, to file the reports in a timely 

fashion did not satisfy the unduly narrow definition of the “best efforts” regulation. 

However, CVFC did not concede that the regulation was valid or that the FEC did 

not have equitable discretion to mitigate the fine. Moreover, the mitigation issue 

was in fact raised before the agency and the FEC had an opportunity to consider 

the merits of the claim, thus making it ripe for review. 

As a final gambit, the FEC concludes that in any event, CVFC “cannot 

attack the facial validity of a regulation in a case brought under 2 U.S.C. 

437g(a)(4)(C)(iii).” FEC Motion at 14 n.5. But as CVFC noted in the prior 

section, this lawsuit was filed in the district court not only as a Petition for Review 

under 2 U.S.C. 437g(a)(4)(C)(iii), but also as a Complaint for Declaratory and 

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Injunctive Relief under 28 U.S.C. 1331 and 5 U.S.C. 702-706 which grants the 

district court jurisdiction to hear challenges to an agency’s regulations and actions. 

B. The FEC Either Failed To Exercise Its Discretion Whether To 

Mitigate the Fine Or Its Decision Not To Mitigate Was Arbitrary, 

Capricious, or an Abuse of Discretion 

FEC staff conceded that the treasurer’s wilful and reckless conduct in not 

filing the disclosure reports in a timely fashion “could be considered as possible 

mitigating factors in determining the civil penalty for the Committee’s violation.” 

See Mem. Op. at 20. Nevertheless, the district court could not conclude that the 

“Commission’s decision lacked a rational basis and constituted an abuse of 

discretion.” Mem. Op. 23. 

In the first place, it is not clear based on the FEC’s cryptic and unlawful 

voting procedures that the Commissioners actually considered CVFC’s argument 

for mitigation at all or made any deliberative decision to reject it. This alone 

presents a question that by its nature is not amenable to summary disposition. 

Second, the FEC argues that mitigation of the fine was unwarranted because 

the circumstances of the late filings did not fall within the narrow “unforeseen 

circumstances” specified in the “best efforts” regulation of 11 C.F.R. 111.35(c). 

The FEC’s facile conclusion that “knowing, wilful, and reckless” conduct by 

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CVFC’s treasurer was “akin” to simple “negligence,” (FEC Motion at 14) and not 

a circumstance warranting mitigation was clearly erroneous. 

The FEC’s “best efforts” regulation provides for two categories of 

circumstances that either qualify or disqualify for mitigation consideration. Those 

circumstances that qualify for a “best efforts” defense are spelled out in 11 C.F.R. 

111.35(c) to include failure of Commission computer equipment, internet failures, 

or severe weather or other disaster-related incident. The circumstances that do not

qualify are spelled out in 11 C.F.R. 111.35(d) to include simple negligence, a 

Committee’s computer crashing or disruption caused by the Internet service 

provider failure due to no fault of the Committee, or illness, inexperience, or 

unavailability of the treasurer. Id. See Mem. Op. at 22. 

Importantly, however, the regulation specifies that both these categories of 

circumstances “include, but are not limited to” the examples listed. Here, the 

failure to file timely reports was due to “knowing, wilful or reckless” conduct of 

the treasurer and not simple negligence. Thus, CVFC was not foreclosed by the 

regulation from requesting or being considered for mitigation. Despite this 

apparent flexibility of the regulation, the district court erred when it cited the FEC 

staff report noting that the defense is precluded “if it based on any of the 

circumstances listed at 11 C.F.R. 111.35d.” Mem. Op. at 23, (emphasis added) 

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citing AF2355-AR046. But CVFC’s defense of “reckless and wilful misconduct of 

the treasurer” is not “listed” as an excludable category in the “best efforts” 

regulation. Moreover, with respect to excusable conduct of the treasurer, the 

regulation specifically excludes “inexperience” as an excuse, but not “knowing, 

willful or reckless conduct of the treasurer.” 

In short, it appears that the FEC either did not fully understand or chose to 

ignore the discretion it possessed to consider the circumstances in this case as 

being eligible for mitigation under their regulation. Moreover, the FEC failed to 

consider that even if CVFC did not qualify for a “best efforts” defense, it had 

equitable discretion to mitigate the fine by considering other defenses. See 

Statement of Issues Nos. 4, 5 at 2-3. 1

 

 

1

 In that regard, CVFC made other equitable arguments below as to why the fine 

should be mitigated based on its excessiveness and the hardship imposed on small 

political committees such as CVFC that would have to rely on a great many small 

donations to pay excessive fines. This is particularly so where the governmental 

interests in disclosure of such small committee’s contributions and expenses are 

relatively minor as opposed to the interest in disclosure of the finances of 

candidates who are running for office. In other words, contributions made by 

CVFC to candidates were timely disclosed by those candidates which more fully 

served the governmental interest sought by the disclosure rules. See Pls’ Opp. 

Mem. at 26-32 (discussing the exercise of equitable discretion to mitigate fines and 

for reviewing courts to consider their excessiveness). See, e.g., Cox for United 

States Senate Comm., Inc. v. FEC, 2004 U.S. Dist. LEXIS 6939, 2004 WL 78345 

(N.D. Ill. Jan. 21, 2004). 

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C. The FEC’s “Best Efforts” Regulation Is Arbitrary and Capricious 

If the FEC is correct that it cannot mitigate the fine imposed on CVFC 

because of the FEC’s view of limited applicability of the “best efforts” regulation, 

then the regulation is arbitrary and capricious. As CVFC argued below, the 

regulation is both over-inclusive and under-inclusive because it excuses 

“unforeseeable” events like severe weather (which in fact is often foreseeable), but 

does not excuse so-called “foreseeable” events such as a computer virus attack on a 

committee’s computer, or the “illness” or “unavailability” of the treasurer due to, 

for example, a sudden attack of food poisoning requiring hospitalization, events 

which one would normally regard as “unforeseeable.” See Pls’ Mem at 33-34; 

Mem. Op. at 23. On its face, this regulation is not rational. 

The district court and FEC suggest that if “recklessness and negligence on 

the part of the treasurer - of the sort here - were to qualify for ‘best efforts’ then the 

exception would swallow the rule and almost all late filings would be excusable.” 

FEC Motion at 15 (citation omitted) (citing Mem. Op. at 23-24). Yet the conduct 

of the “sort at issue here” was not simple negligence but “knowing, wilful and 

reckless.” That kind of conduct would not make “almost all late filings 

excusable.” A Committee would be required by the FEC to submit evidence in 

such cases, as CVFC did here, demonstrating that the treasurer was not simply 

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negligent, but engaged in wilful and reckless conduct that the Committee could not 

foresee. There was no evidence that CVFC was negligent in managing its treasurer 

that would estop CVFC from asserting a “best efforts” defense. 

More significantly, a showing by a committee that its treasurer was “wilful 

and reckless” in not complying with the reporting requirements will not preclude 

the FEC from sanctioning and imposing appropriate fines on the guilty party – the 

treasurer himself – which provides the only measure of proper accountability 

within the regulatory scheme. 

III. THE DISTRICT COURT ERRED IN RULING THAT THE FEC’S 

FAILURE TO IMPOSE PERSONAL LIABILITY ON CVFC’s 

TREASURER AS PROVIDED BY STATUTE AND NUMEROUS FEC 

REGULATIONS WAS WITHIN THE FEC’S DISCRETION 

The FEC initially argues that the district court was correct in 

ruling that it lacked jurisdiction to consider CVFC’s claim that its treasurer should 

be held personally liable for the fines imposed in the context of a Petition for 

Review under 2 U.S.C. 437g(a)(4)(C)(iii). FEC Motion at 8-9; Mem. Op. at 18-19. 

However, as previously noted, CVFC brought this action under 28 U.S.C. 1331 

and 5 U.S.C. 702-706 as well, and therefore the court had jurisdiction to consider 

the claim. While CVFC had the option to file a formal complaint against its errant 

treasurer with the FEC under 437g(a)(8)(A), it was not required to do so to seek 

judicial review of the FEC’s failure to hold him personally liable, either solely or 

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jointly. The statutory provisions and FEC’s regulations make clear that the 

treasurer is personally liable for filing timely reports; accordingly, the failure of the 

agency to impose sanctions on the guilty party caused injury to CVFC for which it 

can seek judicial review. Moreover, the FEC is required by law to consider taking 

enforcement action against individuals when, in the course of their carrying out 

their duties, they learn of possible violations of the law as the administrative record 

clearly show what happened here. 2 U.S.C. 437g(a)(2). 

 Ruling on the merits in the alternative, the district court held that the FEC “has 

broad discretionary power whether to investigate a claim, and whether to pursue 

civil enforcement under [FECA]” and that it could not conclude that the agency 

“abused its discretion in choosing not to pursue Mr. Curry in his personal capacity 

for wilful or reckless failure to file reports.” Mem. Op. at 19. However, a close 

examination of the plethora of statutory provisions, regulations, and policies 

expressly imposing personal liability on treasurers to file committee reports, 

coupled with the FEC enforcement staff recommendations to the FEC that the 

treasurer’s personal liability be pursued, demonstrates that the Commissioners 

either did not consider these points, and therefore failed to exercise their discretion, 

or arbitrarily ignored their enforcement duties without articulating “reasonable 

grounds” for their decision as even the FEC acknowledges the agency must do. 

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See Pls’ Mem. at 20-27; Pls’ Opp. 15-24; FEC Motion at 10 (emphasis in original) 

(citing Nader v. FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2010)). 

A. Personal Liability of the Treasurer 

Under FECA, “Each treasurer shall file reports of receipts and disbursements 

in accordance with the provisions of this subsection. The Treasurer shall sign each 

such report.” 2 U.S.C. § 434(a)(1). Congress placed the responsibility to file 

reports squarely on Treasurers, not on Committees. See also 2 U.S.C. § 432(c) 

(requiring treasurers to keep account of committee records); § 432(d) (requiring 

treasurers to maintain records for three years). Congress clearly intended through 

FECA to impose personal liability on Treasurers as the only statutory officer 

required for the formation and operation of political committees. Congress did not 

impose reporting obligations on political committees themselves, or committee 

Chairmen or other committee officers. “Each treasurer of a political committee, 

and any other person required to file any report or statement under these 

regulations and under the Act, shall be personally responsible for the timely and 

complete filing of the report or statement and for the accuracy of any information 

or statement contained in it.” 11 C.F.R. § 104.14(d) (emphasis added).2

 

2 See also 11 C.F.R. § 114.12 (“Notwithstanding the corporate status of the 

political committee, the treasurer remains personally responsible for carrying out 

their respective duties under the Act.”) (emphasis added). The Act “holds [the 

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In addition to the express personal liability of Treasurers, the rules and 

regulations of the FEC impose affirmative legal duties upon Treasurers of political 

committees, “the violation of which makes them personally liable.” See Federal 

Election Commission Statement of Policy Regarding Treasurers Subject to 

Enforcement Proceedings, 70 Fed. Reg. 1, 5 (Jan. 3, 2005) (emphasis added). The 

law consistently tasks Treasurers with affirmative legal obligations and duties, the 

violation of which subjects Treasurers, and only Treasurers, to personal liability. 

Congress did not empower the FEC to transfer this personal responsibility and pass 

it off to the Committee or a blameless successor Treasurer. 

B. FEC Staff Recommendation on Treasurer’s Personal Liability 

 The wealth of authority providing that the Treasurer is personally liable 

circumscribes the FEC’s discretion to ignore that body of law. Moreover, FEC 

staff recommended that personal liability should be considered. 

 For example, the Reviewing Officer in this case, pursuant to guidance from 

the Office of General Counsel (OGC) “request[ed] that the Commission consider 

 

treasurer] personally responsible for the committee's recordkeeping and reporting 

duties.” FEC v. Toledano, 317 F.3d 939, 947 (9th Cir. 2002) (emphasis added). 

See also FEC Advisory Opinion 1995-10 ("[T]reasurer’s liability [is] distinct from 

liability of committee for FECA violations, and since Congress chose to hold an 

individual, the treasurer, responsible for compliance with FECA it follows that ‘an 

individual will also stand responsible for his indiscretions as a treasurer’") 

(emphasis added) (quoting FEC v. Dramesi for Congress Comm., No. 85-4039 

(MHC) (D.N.J. Sept. 5, 1990) (unpublished opinion).

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the issue of the Treasurer’s personal responsibility in these matters.” AF2312-

AR104. In a Memorandum to the Reviewing Officer, the Acting General Counsel 

not only stated in a bold heading that the allegations of recklessness against the 

former treasurer “MIGHT JUSTIFY PURSUING [THE FORMER] 

TREASURER PERSONALLY” but that if the FEC referred this matter to the 

OGC for pursuing personal liability against Mr. Curry in the enforcement context, 

the FEC “could consider Mr. Curry’s actions as possible mitigating factors in 

determining the civil penalty” for the Committee. Pls’ Mem. at 11. The OGC 

concluded as follows: “[t]herefore, we recommend that OAR raise this issue for the 

Commission’s consideration in the memorandum recommending final 

determinations in this matter.” AF312-AR104. See Section II, supra. The OAR, 

as noted, did indeed raise and specifically request the FEC consider the issue of 

personal liability in its report to the FEC. But due to the questionable and cryptic 

voting procedures, the FEC has not clearly demonstrated that the Commissioners 

actually exercised discretion or considered personal liability in those matters. 

CONCLUSION 

 For the foregoing reasons, the FEC’s Motion should be denied. 

 

 

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Respectfully submitted, 

 ____/s/______________________ 

 Dan Backer 

 DB Capital Strategies PLLC 

 717 King Street, Suite 300 

 Alexandria, VA 22314 

 (202) 210-5431 

 dbacker@dbcapitolstrategies.com 

 Paul D. Kamenar 

 1612 K Street, N.W., Suite 300 

 Washington, DC 20006 

 (202) 603-5397 

 Paul.kamenar@gmail.com 

 

Date: March 4, 2014 

USCA Case #13-5358 Document #1482170 Filed: 03/04/2014 Page 21 of 21
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________ 

 )

COMBAT VETERANS FOR CONGRESS ) 

POLITICAL ACTION COMMITTEE AND ) 

DAVID H. WIGGS, TREASURER ) 

 ) 

 Appellants, ) No. 13-5358 

 ) 

 v. ) CERTIFICATE OF SERVICE 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Appellee. ) 

______________________________________ )

CERTIFICATE OF SERVICE 

I hereby certify that on March 4, 2014, I electronically filed the Appellants’ 

Opposition TO Federal Election Commission’s Motion for Summary Affirmance 

with the Clerk of the Court of the United States Court of Appeals for the District of 

Columbia Circuit by using the Court’s CM/ECF system. 

 Service was made on the following counsel for Appellee through the 

CM/ECF system: 

Harry J. Summers 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

hsummers@fec.gov 

 /s/ 

USCA Case #13-5358 Document #1482170 Filed: 03/04/2014 Page 1 of 2
Dan Backer (D.C. Bar No. 996641) 

DB Capital Strategies PLLC 

717 King Street, Suite 300 

Alexandria, VA 22314 

(202) 210-5431 

dbacker@dbcapitolstrategies.com 

USCA Case #13-5358 Document #1482170 Filed: 03/04/2014 Page 2 of 2